Text: S03438 Text: S03440 Text: S03400 - S03499 Text: S Index Bills and Amendments: General Index Bill History: General Index
PAG LIN
1 1 Amend House File 448, as amended, passed, and
1 2 reprinted by the House, as follows:
1 3 #1. By striking everything after the enacting
1 4 clause and inserting the following:
1 5 "Section 1. NEW SECTION. 714D.1 RESTRICTIONS ON
1 6 USE OF ELECTRONIC MAIL – DAMAGES – EXCEPTIONS.
1 7 1. DEFINITIONS. For purposes of this section,
1 8 unless the context otherwise requires:
1 9 a. "Advertisement" means an electronic mail
1 10 message sent to a computer for the purpose of
1 11 promoting real property, goods, or services for sale,
1 12 lease, barter, or auction.
1 13 b. "Computer" means an electronic device that
1 14 performs logical, arithmetical, and memory functions
1 15 by manipulations of electronic or magnetic impulses,
1 16 and includes all input, output, processing, storage,
1 17 and communication facilities which are connected or
1 18 related to the computer, including a computer network.
1 19 As used in this paragraph, "computer" includes any
1 20 central processing unit, front-end processing unit,
1 21 miniprocessor, or microprocessor, and related
1 22 peripheral equipment such as data storage devices,
1 23 document scanners, data entry terminal controllers,
1 24 and data terminal equipment and systems for computer
1 25 networks.
1 26 c. "Computer network" means a set of related,
1 27 remotely connected devices and communication
1 28 facilities, including two or more computers with
1 29 capability to transmit data among them through
1 30 communication facilities.
1 31 d. "Electronic mail" means an electronic message,
1 32 file, data, or other electronic information that is
1 33 transmitted using an internet or intranet computer
1 34 network to one or more persons.
1 35 e. "Interactive computer service" means an
1 36 information service, system, or access software
1 37 provider that provides or enables computer access by
1 38 multiple users to a computer server, including
1 39 specifically a service or system that provides access
1 40 to the internet, and such systems operated or services
1 41 offered by a library or an educational institution.
1 42 f. "Internet domain name" means a globally unique,
1 43 hierarchical reference to an internet host or service,
1 44 assigned through a centralized internet naming
1 45 authority, comprising a series of character strings
1 46 separated by periods, with the right-most string
1 47 specifying the top of the hierarchy.
1 48 g. "Recipient" means a person who receives
1 49 electronic mail.
1 50 2. PROHIBITED ACTS. It is unlawful for a person
2 1 to use an interactive computer service to initiate the
2 2 sending of bulk electronic mail that the sender knows,
2 3 or has reason to know, violates any of the following:
2 4 a. Uses the name of a third party in the return
2 5 address field without permission of the third party.
2 6 b. Misrepresents any information in identifying
2 7 the point of origin of the transmission path of the
2 8 electronic mail.
2 9 c. Does not contain information identifying the
2 10 point of origin or the transmission path of the
2 11 electronic mail message.
2 12 d. With respect to an unsolicited advertisement,
2 13 does not, at a minimum, provide an electronic mail
2 14 address readily identifiable in the advertisement to
2 15 which the recipient may send a request for declining
2 16 such electronic mail.
2 17 e. Demonstrates a pattern of sending unsolicited
2 18 advertisements to a recipient who has sent the person
2 19 a request for declining such electronic mail following
2 20 a reasonable time, which in no event shall be more
2 21 than five business days, after the receipt by the
2 22 person of such request.
2 23 3. CIVIL DAMAGES.
2 24 a. (1) Except as provided in paragraph "b", a
2 25 person who is injured in person or property as a
2 26 result of a violation of this section may bring an
2 27 action to recover damages. Such damages shall
2 28 include, but are not limited to, actual damages
2 29 including lost profits.
2 30 (2) Notwithstanding subparagraph (1), a person who
2 31 transmits or causes to be transmitted electronic mail
2 32 in violation of subsection 2 is liable to the
2 33 recipient of the electronic mail for monetary damages
2 34 in an amount equal to any actual damages, including
2 35 lost profits, caused by such transmittal. The
2 36 recipient, in lieu of actual damages, may elect to
2 37 recover from the person transmitting or causing to be
2 38 transmitted such electronic mail the greater of ten
2 39 dollars for each bulk electronic mail message
2 40 transmitted to the recipient in violation of this
2 41 section, or five hundred dollars. In addition to the
2 42 monetary damages, the recipient is also entitled to
2 43 costs and reasonable attorney fees.
2 44 b. (1) Notwithstanding paragraph "a", if the
2 45 person injured is an interactive computer service and
2 46 such injury arises from a person who transmits bulk
2 47 electronic mail without authority, such service may
2 48 recover actual damages, attorney fees, and costs.
2 49 Such service, in lieu of recovering actual damages,
2 50 may also elect to recover the greater of ten dollars
3 1 for each unsolicited bulk electronic mail message
3 2 transmitted in violation of this section, or twenty-
3 3 five thousand dollars.
3 4 (2) For purposes of this paragraph, a person is
3 5 "without authority" when the person has no right or
3 6 permission of the owner to use a computer, or the
3 7 person uses the computer in a manner which exceeds the
3 8 person's right or permission; or the person uses a
3 9 computer, a computer network, or the computer services
3 10 or an interactive computer service to transmit
3 11 unsolicited bulk electronic mail in contravention of
3 12 the authority granted by or in violation of the
3 13 policies set by the interactive computer service to
3 14 the extent the person has received actual notice of
3 15 such policies. Transmission of electronic mail from
3 16 an organization or similar entity to the members of
3 17 such organization or similar entity shall not be
3 18 deemed to be unsolicited bulk electronic mail.
3 19 c. In an action brought under this chapter, a
3 20 court shall preserve the secrecy of an alleged trade
3 21 secret by reasonable means, including but not limited
3 22 to granting protective orders in connection with
3 23 discovery proceedings, holding in-camera hearings,
3 24 sealing the records of the action, and ordering a
3 25 person involved in the litigation not to disclose an
3 26 alleged trade secret without prior court approval.
3 27 d. This section shall not be construed to limit
3 28 any person's right to pursue any additional civil
3 29 remedy otherwise allowed by law.
3 30 4. INJUNCTION. In addition to any other remedy
3 31 under this section, a recipient may also petition the
3 32 district court for an injunction to prohibit the
3 33 person from transmitting to the recipient any other
3 34 electronic mail that includes an advertisement.
3 35 5. JURISDICTION. Transmitting or causing the
3 36 transmission of unsolicited bulk electronic mail to or
3 37 through an interactive computer service's computer
3 38 network located in this state shall constitute an act
3 39 in this state. When jurisdiction over a person is
3 40 based solely upon this section, only a cause of action
3 41 arising from acts enumerated in this section may be
3 42 asserted against that person. However, this chapter
3 43 does not limit, restrict, or otherwise affect the
3 44 jurisdiction of any court of this state over foreign
3 45 corporations which are subject to service of process
3 46 pursuant to any other statute, or the jurisdiction of
3 47 any court of this state over a person for engaging in
3 48 acts which result in jurisdiction under this section.
3 49 6. EXCEPTIONS.
3 50 a. This section does not apply to any of the
4 1 following:
4 2 (1) A person who provides users with access to a
4 3 computer network, and as part of that service,
4 4 transmits electronic mail on behalf of those users,
4 5 unless such person knowingly transmits electronic mail
4 6 that includes an advertisement which the person
4 7 prepared or caused to be prepared.
4 8 (2) A person who provides users with access to a
4 9 computer network, and as part of that service,
4 10 transmits electronic mail on behalf of those users,
4 11 unless such person transmits electronic mail on behalf
4 12 of those users which the person knows, or should have
4 13 known was transmitted in violation of subsection 2.
4 14 (3) Electronic mail which is accessed by the
4 15 recipient from an electronic bulletin board.
4 16 (4) A person who provides users with access at no
4 17 charge to electronic mail, including receiving and
4 18 transmitting such electronic mail, and as a condition
4 19 of providing such access requires such users to
4 20 receive unsolicited advertisements.
4 21 b. An interactive computer service is not liable
4 22 under this section for an action voluntarily taken in
4 23 good faith to block or prevent the receipt or
4 24 transmission through its service of any commercial
4 25 electronic mail which is reasonably believed to be in
4 26 violation of subsection 2.
4 27 Sec. 2. NEW SECTION. 714D.2 CIVIL ENFORCEMENT.
4 28 1. A violation of section 714D.1, subsection 2, is
4 29 a violation of section 714.16, subsection 2, paragraph
4 30 "a". All the powers conferred upon the attorney
4 31 general to accomplish the objectives and carry out the
4 32 duties prescribed pursuant to section 714.16 are also
4 33 conferred upon the attorney general to enforce section
4 34 714D.1, including, but not limited to the power to
4 35 issue subpoenas, adopt rules which shall have the
4 36 force of law, and seek injunctive relief and civil
4 37 penalties.
4 38 2. In seeking reimbursement pursuant to section
4 39 714.16, subsection 7, from a person who has committed
4 40 a violation of section 714D.1, subsection 2, the
4 41 attorney general may seek an order from the court that
4 42 the person pay to the attorney general on behalf of
4 43 consumers the amounts for which the person would be
4 44 liable under section 714D.1, subsection 3, for each
4 45 consumer who has a cause of action pursuant to section
4 46 714D.1, subsection 3. Section 714.16, as it relates
4 47 to consumer reimbursement, shall apply to consumer
4 48 reimbursement pursuant to this section."
4 49
4 50
5 1
5 2 JOE BOLKCOM
5 3
5 4
5 5
5 6 JOHN W. JENSEN
5 7 HF 448.307 78
5 8 mj/cf
Text: S03438 Text: S03440 Text: S03400 - S03499 Text: S Index Bills and Amendments: General Index Bill History: General Index
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