HF 1318

as introduced - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to commerce; regulating false and deceptive
commercial electronic mail messages; prescribing
criminal penalties; providing remedies; proposing
coding for new law in Minnesota Statutes, chapter 325F.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [325F.696] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Scope. new text end

new text begin For the purposes of sections
325F.696 to 325F.6991, the terms in this section have the
meanings given them.
new text end

new text begin Subd. 2. new text end

new text begin Commercial electronic mail message. new text end

new text begin "Commercial
electronic mail message" means any electronic mail message, the
primary purpose of which is the commercial advertisement or
promotion of a commercial product or service, including content
on an Internet Web site operated for a commercial purpose, but
does not include a transactional or relationship message. The
inclusion of a reference to a commercial entity or a link to the
Web site of a commercial entity does not, by itself, cause that
message to be treated as a commercial electronic mail message
for the purpose of this section if the contents or circumstances
of the message indicate a primary purpose other than commercial
advertisement or promotion of a commercial product or service.
new text end

new text begin Subd. 3. new text end

new text begin Computer. new text end

new text begin "Computer" means an electronic device
that performs logical, arithmetic, and memory functions by the
manipulation of electronic or magnetic impulses. "Computer"
includes, but is not limited to, all input, output, processing,
storage, computer program, or communication facilities that are
connected or related in a computer system or network to an
electronic device of that nature.
new text end

new text begin Subd. 4. new text end

new text begin Computer network. new text end

new text begin "Computer network" means a
set of related and remotely connected computers and
communication facilities that includes more than one computer
system that has the capability to transmit among the connected
computers and communication facilities through the use of
computer facilities.
new text end

new text begin Subd. 5. new text end

new text begin Computer system. new text end

new text begin "Computer system" means a
computer and related devices, whether connected or unconnected,
including, but not limited to, data input, output, and storage
devices, data communication links, and computer programs and
data that make the system capable of performing specified
special purpose data processing tasks.
new text end

new text begin Subd. 6. new text end

new text begin Domain name. new text end

new text begin "Domain name" means any
alphanumeric designation that is registered with or assigned by
any domain name registrar, domain name registry, or other domain
name registration authority as part of an electronic address on
the Internet.
new text end

new text begin Subd. 7. new text end

new text begin Electronic mail. new text end

new text begin "Electronic mail" means an
electronic message that is transmitted between two or more
telecommunications devices or electronic devices capable of
receiving electronic messages, whether or not the message is
converted to hard copy format after receipt, and whether or not
the message is viewed upon the transmission or stored for later
retrieval. "Electronic mail" includes electronic messages that
are transmitted through a local, regional, or global computer
network.
new text end

new text begin Subd. 8. new text end

new text begin Originating address. new text end

new text begin "Originating address"
means the string of characters used to specify the source of any
electronic mail message.
new text end

new text begin Subd. 9. new text end

new text begin Receiving address. new text end

new text begin "Receiving address" means
the string of characters used to specify a recipient with each
receiving address creating a unique and separate recipient.
new text end

new text begin Subd. 10. new text end

new text begin Electronic mail message. new text end

new text begin "Electronic mail
message" means each electronic mail addressed to a discrete
addressee.
new text end

new text begin Subd. 11. new text end

new text begin Electronic mail service provider. new text end

new text begin "Electronic
mail service provider" means any person, including an Internet
service provider, that is an intermediary in sending and
receiving electronic mail and that provides to the public
electronic mail accounts or online user accounts from which
electronic mail may be sent.
new text end

new text begin Subd. 12. new text end

new text begin Header information. new text end

new text begin "Header information" means
the source, destination, and routing information attached to an
electronic mail message, including the originating domain name,
originating address, and technical information that
authenticates the sender of an electronic mail message for
computer network security or computer network management
purposes.
new text end

new text begin Subd. 13. new text end

new text begin Initiate the transmission;
initiated. new text end

new text begin "Initiate the transmission" or "initiated" means to
originate or transmit a commercial electronic mail message or to
procure the origination or transmission of that message,
regardless of whether the message reaches its intended
recipients, but does not include actions that constitute routine
conveyance of the message.
new text end

new text begin Subd. 14. new text end

new text begin Internet. new text end

new text begin "Internet" means collectively the
myriad of computer and telecommunications facilities, including
equipment and operating software, which comprise the
interconnected worldwide network of networks that employ the
Transmission Control Protocol/Internet Protocol, or any
predecessor or successor protocols to this protocol, to
communication information of all kinds by wire or radio.
new text end

new text begin Subd. 15. new text end

new text begin Internet protocol address. new text end

new text begin "Internet protocol
address" means the string of numbers by which locations on the
Internet are identified by routers or other computers connected
to the Internet.
new text end

new text begin Subd. 16. new text end

new text begin Materially falsify. new text end

new text begin "Materially falsify" means
to alter or conceal in a manner that would impair the ability of
a recipient of an electronic mail message, an electronic mail
service provider processing an electronic mail message on behalf
of a recipient, a person alleging a violation of section
325F.697, or a law enforcement agency to identify, locate, or
respond to the person that initiated the electronic mail message
or to investigate an alleged violation of this section.
new text end

new text begin Subd. 17. new text end

new text begin Multiple. new text end

new text begin "Multiple" means more than ten
commercial electronic mail messages during a 24-hour period,
more than 100 commercial electronic mail messages during a
30-day period, or more than 1,000 commercial electronic mail
messages during a one-year period.
new text end

new text begin Subd. 18. new text end

new text begin Recipient. new text end

new text begin "Recipient" means a person who
receives a commercial electronic mail message at any one of the
following receiving addresses:
new text end

new text begin (1) a receiving address furnished by an electronic mail
service provider that bills for furnishing and maintaining that
receiving address to a mailing address within this state;
new text end

new text begin (2) a receiving address ordinarily accessed from a computer
located within this state or by a person domiciled within this
state; or
new text end

new text begin (3) any other receiving address with respect to which this
section can be imposed consistent with the United States
Constitution.
new text end

new text begin Subd. 19. new text end

new text begin Routine conveyance. new text end

new text begin "Routine conveyance" means
the transmission, routing, relaying, handling, or storing,
through an automated technical process, of an electronic mail
message for which another person has identified the recipients
or provided the recipient addresses.
new text end

new text begin Subd. 20. new text end

new text begin Transactional or relationship
message. new text end

new text begin "Transactional or relationship message" means an
electronic mail message the primary purpose of which is to do
any of the following:
new text end

new text begin (1) facilitate, complete, or confirm a commercial
transaction that the recipient has previously agreed to enter
into with the sender;
new text end

new text begin (2) provide warranty information, product recall
information, or safety or security information with respect to a
commercial product or service used or purchased by the
recipient;
new text end

new text begin (3) provide notification concerning a change in the terms
or features of; a change in the recipient's standing or status
with respect to; or, at regular periodic intervals, account
balance information or other type of account statement with
respect to a subscription, membership, account, loan, or
comparable ongoing commercial relationship involving the ongoing
purchase or use by the recipient of products or services offered
by the sender;
new text end

new text begin (4) provide information directly related to an employment
relationship or related benefit plan in which the recipient is
currently involved, participating, or enrolled; or
new text end

new text begin (5) deliver goods or services, including product updates or
upgrades, that the recipient is entitled to receive under the
terms of a transaction that the recipient has previously agreed
to enter into with the sender.
new text end

Sec. 2.

new text begin [325F.697] FALSE, MISLEADING, OR DECEPTIVE
COMMERCIAL ELECTRONIC MAIL MESSAGES PROHIBITED.
new text end

new text begin No person, with regard to commercial electronic mail
messages sent from or to a computer in this state, shall do any
of the following:
new text end

new text begin (1) knowingly use a computer to relay or retransmit
multiple commercial electronic mail messages, with the intent to
deceive or mislead recipients or any electronic mail service
provider, as to the origin of those messages;
new text end

new text begin (2) knowingly and materially falsify header information in
multiple commercial electronic mail messages and purposely
initiate the transmission of those messages;
new text end

new text begin (3) knowingly register, using information that materially
falsifies the identity of the actual registrant, for five or
more electronic mail accounts or online user accounts or two or
more domain names and purposely initiate the transmission of
multiple commercial electronic mail messages from one, or any
combination, of those accounts or domain names;
new text end

new text begin (4) knowingly falsely represent the right to use five or
more Internet protocol addresses and purposely initiate the
transmission of multiple commercial electronic mail messages
from those addresses.
new text end

Sec. 3.

new text begin [325F.698] ILLEGAL TRANSMISSION OF MULTIPLE
MESSAGES; CRIMINAL PENALTIES.
new text end

new text begin (a) Whoever violates section 325F.697 is guilty of
illegally transmitting multiple commercial electronic mail
messages. Except as otherwise provided in paragraph (b) or
section 325F.699, subdivision 3, illegally transmitting multiple
commercial electronic mail messages is a misdemeanor.
new text end

new text begin (b) Illegally transmitting multiple commercial electronic
mail messages is a gross misdemeanor if any of the following
apply:
new text end

new text begin (1) regarding a violation of section 325F.697, clause (3),
the offender, using information that materially falsifies the
identity of the actual registrant, knowingly registers for 20 or
more electronic mail accounts or online user accounts or ten or
more domain names, and purposely initiates, or conspires to
initiate, the transmission of multiple commercial electronic
mail messages from the accounts or domain names;
new text end

new text begin (2) regarding any violation of section 325F.697, the volume
of commercial electronic mail messages the offender transmitted
in committing the violation exceeds 250 during any 24-hour
period, 2,500 during any 30-day period, or 25,000 during any
one-year period;
new text end

new text begin (3) regarding any violation of section 325F.697, during any
one-year period the aggregate loss to the victim or victims of
the violation is $500 or more, or during any one-year period the
aggregate value of the property or services obtained by any
offender as a result of the violation is $500 or more;
new text end

new text begin (4) regarding any violation of section 325F.697, the
offender committed the violation with three or more other
persons with respect to whom the offender was the organizer or
leader of the activity that resulted in the violation;
new text end

new text begin (5) regarding any violation of section 325F.697, the
offender knowingly assisted in the violation through the
provision or selection of electronic mail addresses to which the
commercial electronic mail message was transmitted, if that
offender knew that the electronic mail addresses of the
recipients were obtained using an automated means from an
Internet Web site or proprietary online service operated by
another person, and that Web site or online service included, at
the time the electronic mail addresses were obtained, a notice
stating that the operator of that Web site or online service
will not transfer addresses maintained by that Web site or
online service to any other party for the purposes of initiating
the transmission of, or enabling others to initiate the
transmission of, electronic mail messages; or
new text end

new text begin (6) regarding any violation of section 325F.697, the
offender knowingly assisted in the violation through the
provision or selection of electronic mail addresses of the
recipients obtained using an automated means that generates
possible electronic mail addresses by combining names, letters,
or numbers into numerous permutations.
new text end

Sec. 4.

new text begin [325F.699] UNAUTHORIZED ACCESS TO A COMPUTER;
CRIMINAL PENALTIES.
new text end

new text begin Subdivision 1. new text end

new text begin Prohibition. new text end

new text begin No person, with regard to
commercial electronic mail messages sent from or to a computer
in this state, shall knowingly access a computer without
authorization and purposely initiate the transmission of
multiple commercial electronic mail messages from or through the
computer.
new text end

new text begin Subd. 2. new text end

new text begin Gross misdemeanor. new text end

new text begin Except as otherwise provided
in subdivision 3, whoever violates subdivision 1 is guilty of
unauthorized access of a computer, a gross misdemeanor.
new text end

new text begin Subd. 3. new text end

new text begin Felony. new text end

new text begin Illegally transmitting multiple
commercial electronic mail messages and unauthorized access of a
computer in violation of this section are felonies if the
offender previously has been convicted of a violation of this
section, or a violation of a law of another state or the United
States regarding the transmission of electronic mail messages or
unauthorized access to a computer, or if the offender committed
the violation of this section in the furtherance of a felony.
new text end

Sec. 5.

new text begin [325F.6991] CIVIL ACTIONS.
new text end

new text begin (a) The attorney general or an electronic mail service
provider that is injured by a violation of this section may
bring a civil action in district court seeking relief from any
person whose conduct violated section 325F.697. The civil
action may be commenced at any time within one year of the date
after the act that is the basis of the civil action.
new text end

new text begin (b) In a civil action brought by the attorney general for a
violation of section 325F.697, the court may award temporary,
preliminary, or permanent injunctive relief. The court also may
impose a civil penalty against the offender, as the court
considers just, in an amount that is the lesser of: (1) $25,000
for each day a violation occurs; or (2) not less than $2 but not
more than $8 for each commercial electronic mail message
initiated in violation of this section.
new text end

new text begin (c) In a civil action brought by an electronic mail service
provider for a violation of section 325F.697, the court may
award temporary, preliminary, or permanent injunctive relief,
and also may award damages in an amount equal to the greater of
the following:
new text end

new text begin (1) the sum of the actual damages incurred by the
electronic mail service provider as a result of a violation of
this section, plus any receipts of the offender that are
attributable to a violation of this section and that were not
taken into account in computing actual damages;
new text end

new text begin (2) statutory damages, as the court considers just, in an
amount that is the lesser of: (i) $25,000 for each day a
violation occurs; or (ii) not less than $2 but not more than $8
for each commercial electronic mail message initiated in
violation of this section.
new text end

new text begin (d) In assessing damages, the court may consider whether
the offender has established and implemented, with due care,
commercially reasonable practices and procedures designed to
effectively prevent the violation, or the violation occurred
despite commercially reasonable efforts to maintain the
practices and procedures established.
new text end

new text begin (e) Equipment, software, or other technology of a person
who violates this section that is used or intended to be used in
the commission of a violation of this section, and any real or
personal property that constitutes or is traceable to the gross
proceeds obtained from the commission of a violation of this
section, is contraband and is subject to seizure and forfeiture
pursuant to section 609.531.
new text end

new text begin (f) The attorney general may bring a civil action, pursuant
to the "CAN-SPAM Act of 2003," Public Law 108-187, 117 Stat.
2699, United States Code, title 15, section 7701 et seq., on
behalf of the residents of the state in a district court of the
United States that has jurisdiction for a violation of the
CAN-SPAM Act of 2003, but the attorney general shall not bring a
civil action under both this paragraph and paragraph (a). If a
federal court dismisses a civil action brought under this
section for reasons other than upon the merits, a civil action
may be brought under this section in the appropriate district
court of this state.
new text end

new text begin (g) Nothing in sections 325F.696 to 325F.6991:
new text end

new text begin (1) requires an electronic mail service provider to block,
transmit, route, relay, handle, or store certain types of
electronic mail messages;
new text end

new text begin (2) prevents or limits, in any way, an electronic mail
service provider from adopting a policy regarding electronic
mail, including a policy of declining to transmit certain types
of electronic mail messages or from enforcing such policy
through technical means, through contract, or pursuant to any
remedy available under any other federal, state, or local
criminal or civil law; and
new text end

new text begin (3) renders lawful any policy adopted under clause (2) that
is unlawful under any other law.
new text end

Sec. 6. new text begin EFFECTIVE DATE; APPLICATION.
new text end

new text begin This act is effective August 1, 2005. Sections 3 and 4
apply to crimes committed on or after that date.
new text end