SF 1570

as introduced - 83rd Legislature (2003 - 2004) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to consumer protection; regulating the 
  1.3             transmission of unsolicited bulk electronic mail; 
  1.4             prescribing civil remedies and criminal penalties; 
  1.5             proposing coding for new law in Minnesota Statutes, 
  1.6             chapter 325E. 
  1.7   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.8      Section 1.  [325E.396] [UNSOLICITED BULK ELECTRONIC MAIL.] 
  1.9      Subdivision 1.  [DEFINITIONS.] For purposes of this 
  1.10  section, the terms in this section have the meanings given them. 
  1.11     Subd. 2.  [COMPUTER.] "Computer" means an electronic, 
  1.12  magnetic, optical, hydraulic, or organic device or group of 
  1.13  devices which, pursuant to a computer program, to human 
  1.14  instruction, or to permanent instructions contained in the 
  1.15  device or group of devices, can automatically perform computer 
  1.16  operations with or on computer data and can communicate the 
  1.17  results to another computer or to a person.  The term "computer" 
  1.18  includes any connected or directly related device, equipment, or 
  1.19  facility which enables the computer to store, retrieve, or 
  1.20  communicate computer programs, computer data, or the results of 
  1.21  computer operations to or from a person, another computer, or 
  1.22  another device.  
  1.23     Subd. 3.  [COMPUTER NETWORK.] "Computer network" means two 
  1.24  or more computers connected by a network.  
  1.25     Subd. 4.  [COMPUTER OPERATION.] "Computer operation" means 
  1.26  arithmetic, logical, monitoring, storage, or retrieval functions 
  2.1   and any combination thereof, and includes, but is not limited 
  2.2   to, communication with, storage of data to, or retrieval of data 
  2.3   from any device or human hand manipulation of electronic or 
  2.4   magnetic impulses.  A "computer operation" for a particular 
  2.5   computer may also be any function for which that computer was 
  2.6   generally designed.  
  2.7      Subd. 5.  [COMPUTER SERVICES.] "Computer services" means 
  2.8   computer time or services, including data processing services, 
  2.9   Internet services, electronic mail services, electronic message 
  2.10  services, or information or data stored in connection therewith. 
  2.11     Subd. 6.  [COMPUTER SOFTWARE.] "Computer software" means a 
  2.12  set of computer programs, procedures, and associated 
  2.13  documentation concerned with computer data or with the operation 
  2.14  of a computer, computer program, or computer network.  
  2.15     Subd. 7.  [ELECTRONIC MAIL SERVICE PROVIDER OR 
  2.16  EMSP.] "Electronic mail service provider" or "EMSP" means any 
  2.17  person who (i) is an intermediary in sending or receiving 
  2.18  electronic mail and (ii) provides to end users of electronic 
  2.19  mail services the ability to send or receive electronic mail.  
  2.20     Subd. 8.  [NETWORK.] "Network" means any combination of 
  2.21  digital transmission facilities and packet switches, routers, 
  2.22  and similar equipment interconnected to enable the exchange of 
  2.23  computer data.  
  2.24     Subd. 9.  [OWNER.] "Owner" means an owner or lessee of a 
  2.25  computer or a computer network or an owner, lessee, or licensee 
  2.26  of computer data, computer programs, or computer software.  
  2.27     Subd. 10.  [PERSON.] "Person" shall include any individual, 
  2.28  partnership, association, corporation, or joint venture.  
  2.29     Subd. 11.  [PROPERTY.] "Property" shall include: 
  2.30     (1) real property; 
  2.31     (2) computers and computer networks; 
  2.32     (3) financial instruments, computer data, computer 
  2.33  programs, computer software, and all other personal property 
  2.34  regardless of whether they are: 
  2.35     (i) tangible or intangible; 
  2.36     (ii) in a format readable by humans or by a computer; 
  3.1      (iii) in transit between computers or within a computer 
  3.2   network or between any devices which comprise a computer; or 
  3.3      (iv) located on any paper or in any device on which it is 
  3.4   stored by a computer or by a human; and 
  3.5      (4) computer services.  
  3.6      A person "uses" a computer or computer network when he 
  3.7   attempts to cause or causes:  
  3.8      (i) a computer or computer network to perform or to stop 
  3.9   performing computer operations; 
  3.10     (ii) the withholding or denial of the use of a computer, 
  3.11  computer network, computer program, computer data, or computer 
  3.12  software to another user; or 
  3.13     (iii) a person to put false information into a computer.  
  3.14     A person is "without authority" when he has no right or 
  3.15  permission of the owner to use a computer or computer network or 
  3.16  he uses a computer or computer network in a manner exceeding 
  3.17  such right or permission.  
  3.18     Subd. 12.  [COMPUTER FRAUD.] Any person who uses a computer 
  3.19  or computer network without authority and with the intent to: 
  3.20     (1) obtain property or services by false pretenses, 
  3.21     (2) embezzle or commit larceny, or 
  3.22     (3) convert the property of another 
  3.23  is guilty of the crime of computer fraud. 
  3.24     If the value of the property or services obtained is $200 
  3.25  or more, the crime of computer fraud shall be punishable as a 
  3.26  Class 5 felony.  Where the value of the property or services 
  3.27  obtained is less than $200, the crime of computer fraud shall be 
  3.28  punishable as a misdemeanor.  
  3.29     Subd. 13.  [TRANSMISSION OF UNSOLICITED BULK ELECTRONIC 
  3.30  MAIL; PENALTY.] (a) Any person who: 
  3.31     (1) uses a computer or computer network with the intent to 
  3.32  falsify or forge electronic mail transmission information or 
  3.33  other routing information in any manner in connection with the 
  3.34  transmission of unsolicited bulk electronic mail through or into 
  3.35  the computer network of an electronic mail service provider or 
  3.36  its subscribers; or 
  4.1      (2) knowingly sells, gives, or otherwise distributes or 
  4.2   possesses with the intent to sell, give, or distribute software 
  4.3   that 
  4.4      (i) is primarily designed or produced for the purpose of 
  4.5   facilitating or enabling the falsification of electronic mail 
  4.6   transmission information or other routing information; 
  4.7      (ii) has only limited commercially significant purpose or 
  4.8   use other than to facilitate or enable the falsification of 
  4.9   electronic mail transmission information or other routing 
  4.10  information; or 
  4.11     (iii) is marketed by that person acting alone or with 
  4.12  another for use in facilitating or enabling the falsification of 
  4.13  electronic mail transmission information or other routing 
  4.14  information; 
  4.15  is guilty of a misdemeanor.  
  4.16     (b) A person is guilty of a Class 6 felony if he commits a 
  4.17  violation of this section and: 
  4.18     (1) the unsolicited bulk e-mail (UBE) was transmitted from 
  4.19  accounts not lawfully registered in the defendant's name; 
  4.20     (2) the volume of UBE transmitted exceeded 10,000 attempted 
  4.21  recipients in any 24-hour period, 100,000 attempted recipients 
  4.22  in any 30-day time period, or 1,000,000 attempted recipients in 
  4.23  any one-year time period; 
  4.24     (3) the revenue generated from a specific UBE transmission 
  4.25  exceeded $1,000 or the total revenue generated from all UBE 
  4.26  transmitted to any Internet service provider exceeded $50,000; 
  4.27  or 
  4.28     (4) the defendant knowingly hired, employed, used, or 
  4.29  permitted any minor to assist in the transmission of UBE.  
  4.30     Subd. 14.  [CIVIL RELIEF; DAMAGES.] (a) Any person whose 
  4.31  property or person is injured by reason of a violation of any 
  4.32  provision of this section may sue therefor and recover for any 
  4.33  damages sustained and the costs of suit.  Without limiting the 
  4.34  generality of the term, "damages" shall include loss of profits. 
  4.35     (b) If the injury under this section arises from the 
  4.36  transmission of unsolicited bulk electronic (UBE) mail in 
  5.1   contravention of the authority granted by or in violation of the 
  5.2   policies set by the electronic mail service provider where the 
  5.3   defendant has knowledge of the authority or policies of the EMSP 
  5.4   or where the authority or policies of the EMSP are available on 
  5.5   EMSP's website, the injured person, other than an EMSP, may also 
  5.6   recover attorney fees and costs, and may elect, in lieu of 
  5.7   actual damages, to recover the lesser of $10 for each and every 
  5.8   UBE mail message transmitted in violation of this section, or 
  5.9   $25,000 per day.  The injured person shall not have a cause of 
  5.10  action against the EMSP that merely transmits the UBE mail over 
  5.11  its computer network.  Transmission of electronic mail from an 
  5.12  organization to its members shall not be deemed to be UBE mail.  
  5.13     (c) If the injury under this section arises from the 
  5.14  transmission of UBE mail in contravention of the authority 
  5.15  granted by or in violation of the policies set by the EMSP where 
  5.16  the defendant has knowledge of the authority or policies of the 
  5.17  EMSP or where the authority or policies of the EMSP are 
  5.18  available on the electronic mail service provider's website, an 
  5.19  injured EMSP may also recover attorney fees and costs, and may 
  5.20  elect in lieu of actual damages, to recover $1 for each and 
  5.21  every intended recipient of an UBE mail message where the 
  5.22  intended recipient is an end user of the EMSP or $25,000 for 
  5.23  each day an attempt is made to transmit an UBE mail message to 
  5.24  an end user of the EMSP.  In calculating the statutory damages 
  5.25  under this provision, the court may adjust the amount awarded as 
  5.26  necessary, but in doing so shall take into account the number of 
  5.27  complaints to the EMSP generated by the defendant's messages, 
  5.28  the defendant's degree of culpability, the defendant's prior 
  5.29  history of such conduct, and the extent of economic gain 
  5.30  resulting from the conduct.  Transmission of electronic mail 
  5.31  from an organization to its members shall not be deemed to be 
  5.32  UBE mail. 
  5.33     (d) At the request of any party to an action brought 
  5.34  pursuant to this section, the court may, in its discretion, 
  5.35  conduct all legal proceedings in such a way as to protect the 
  5.36  secrecy and security of the computer, computer network, computer 
  6.1   data, computer program, and computer software involved in order 
  6.2   to prevent possible recurrence of the same or a similar act by 
  6.3   another person and to protect any trade secrets of any party and 
  6.4   in such a way as to protect the privacy of nonparties who 
  6.5   complain about violations of this section.  
  6.6      (e) This section shall not be construed to limit any 
  6.7   person's right to pursue any additional civil remedy otherwise 
  6.8   allowed by law.  
  6.9      (f) A civil action under this section must be commenced 
  6.10  before expiration of the time period prescribed in section 
  6.11  541.05.  In actions alleging injury arising from the 
  6.12  transmission of UBE mail, personal jurisdiction may be exercised 
  6.13  pursuant to section 543.19.  
  6.14     Subd. 15.  [FORFEITURE FOR VIOLATIONS OF THIS ARTICLE.] All 
  6.15  money and other income, including all proceeds earned but not 
  6.16  yet received by a defendant from a third party as a result of 
  6.17  the defendant's violations of this section, and all computer 
  6.18  equipment, all computer software, and all personal property used 
  6.19  in connection with any violation of this section known by the 
  6.20  owner thereof to have been used in violation of this section, 
  6.21  shall be subject to lawful seizure by a law enforcement officer 
  6.22  and forfeiture by the state.