House File 413 - Introduced
HOUSE FILE
BY DIX
Passed House, Date Passed Senate, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved
A BILL FOR
1 An Act relating to the transmission of electronic mail including
2 the transmission of unsolicited bulk electronic mail, and the
3 solicitation of the purchase of prescription drugs and the
4 sale of adulterated or misbranded drugs through the use of
5 electronic mail or the internet, and providing for penalties.
6 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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PAG LIN
1 1 Section 1. NEW SECTION. 716A.1 DEFINITIONS.
1 2 As used in this chapter, unless the context otherwise
1 3 requires:
1 4 1. "Computer" means the same as defined in section 702.1A.
1 5 2. "Computer data" means the same as defined in section
1 6 702.1A.
1 7 3. "Computer network" means the same as defined in section
1 8 702.1A.
1 9 4. "Computer operation" means arithmetic, logical,
1 10 monitoring, storage, or retrieval functions, or any
1 11 combination thereof, and includes, but is not limited to,
1 12 communication with, storage of data to, or retrieval of data
1 13 from any device or human hand manipulation of electronic or
1 14 magnetic impulses. "Computer operation" for a particular
1 15 computer may also mean any function for which the computer was
1 16 generally designed.
1 17 5. "Computer program" means an ordered set of data
1 18 representing coded instructions or statements that, when
1 19 executed by a computer, causes the computer to perform one or
1 20 more computer operations.
1 21 6. "Computer services" means computer time or services,
1 22 including data processing services, internet services,
1 23 electronic mail services, electronic message services, or
1 24 information or data stored in connection therewith.
1 25 7. "Computer software" means a set of computer programs,
1 26 procedures, and associated documentation concerned with
1 27 computer data or with computer operation, a computer program,
1 28 or a computer network.
1 29 8. "Electronic mail service provider" means a person who
1 30 does either of the following:
1 31 a. Is an intermediary in sending or receiving electronic
1 32 mail.
1 33 b. Provides to end users of electronic mail services the
1 34 ability to send or receive electronic mail.
1 35 9. "Encryption" means the enciphering of intelligible data
2 1 into unintelligible form or the deciphering of unintelligible
2 2 data into intelligible form.
2 3 10. "Owner" means an owner or lessee of a computer or a
2 4 computer network or an owner, lessee, or licensee of computer
2 5 data, a computer program, or computer software.
2 6 11. "Person" means the same as defined in section 4.1.
2 7 12. "Property" means all of the following:
2 8 a. Real property.
2 9 b. Computers, computer equipment, computer networks, and
2 10 computer services.
2 11 c. Financial instruments, computer data, computer
2 12 programs, computer software, and all other personal property
2 13 regardless of whether they are any of the following:
2 14 (1) Tangible or intangible.
2 15 (2) In a format readable by humans or by a computer.
2 16 (3) In transit between computers or within a computer
2 17 network or between any devices which comprise a computer.
2 18 (4) Located on any paper or in any device on which it is
2 19 stored by a computer or by a person.
2 20 13. "Uses" means, when referring to a computer or computer
2 21 network, causing or attempting to cause any of the following:
2 22 a. A computer or computer network to perform or to stop
2 23 performing computer operations.
2 24 b. The withholding or denial of the use of a computer,
2 25 computer network, computer program, computer data, or computer
2 26 software to another user.
2 27 c. A person to put false information into a computer.
2 28 Sec. 2. NEW SECTION. 716A.2 TRANSMISSION OF UNSOLICITED
2 29 BULK ELECTRONIC MAIL == CRIMINAL PENALTIES.
2 30 1. A person who does any of the following is guilty of an
2 31 aggravated misdemeanor:
2 32 a. Uses a computer or computer network with the intent to
2 33 falsify or forge electronic mail transmission information or
2 34 other routing information in any manner in connection with the
2 35 transmission of unsolicited bulk electronic mail through or
3 1 into the computer network of an electronic mail service
3 2 provider or its subscribers.
3 3 b. Knowingly sells, gives, or otherwise distributes or
3 4 possesses with the intent to sell, give, or otherwise
3 5 distribute computer software that does any of the following:
3 6 (1) Is primarily designed or produced for the purpose of
3 7 facilitating or enabling the falsification of electronic mail
3 8 transmission information or other routing information.
3 9 (2) Has only limited commercially significant purpose or
3 10 use other than to facilitate or enable the falsification of
3 11 electronic mail transmission information or other routing
3 12 information.
3 13 (3) Is marketed by that person acting alone or with
3 14 another for use in facilitating or enabling the falsification
3 15 of electronic mail transmission information or other routing
3 16 information.
3 17 2. A person is guilty of a class "D" felony for committing
3 18 a violation of subsection 1 when either of the following
3 19 apply:
3 20 a. The volume of unsolicited bulk electronic mail
3 21 transmitted exceeds ten thousand attempted recipients in any
3 22 twenty=four=hour period, one hundred thousand attempted
3 23 recipients in any thirty=day time period, or one million
3 24 attempted recipients in any twelve=month time period.
3 25 b. The revenue generated from a specific unsolicited bulk
3 26 electronic mail transmission exceeds one thousand dollars or
3 27 the total revenue generated from all unsolicited bulk
3 28 electronic mail transmitted to any electronic mail service
3 29 provider by the person exceeds fifty thousand dollars.
3 30 3. A person is guilty of a class "D" felony if the person
3 31 knowingly hires, employs, uses, or permits a person less than
3 32 eighteen years of age to assist in the transmission of
3 33 unsolicited bulk electronic mail in violation of subsection 2.
3 34 4. Transmission of electronic mail from an organization to
3 35 a member of the organization shall not be a violation of this
4 1 section.
4 2 Sec. 3. NEW SECTION. 716A.3 SOLICITATIONS FOR
4 3 PRESCRIPTION DRUGS == CRIMINAL PENALTIES.
4 4 1. A person, other than a licensed pharmacist, physician,
4 5 dentist, podiatric physician, or veterinarian, who solicits
4 6 the purchase of a prescription drug, as defined in section
4 7 155A.3, through the use of electronic mail or the internet is
4 8 guilty of a simple misdemeanor.
4 9 2. A person who knowingly sells an adulterated or
4 10 misbranded drug through the use of electronic mail or the
4 11 internet is guilty of a class "D" felony. However, if the
4 12 death of a person occurs as the result of consuming a drug, as
4 13 defined in section 155A.3, sold in violation of this section,
4 14 the violation is a class "B" felony.
4 15 Sec. 4. NEW SECTION. 716A.4 USE OF ENCRYPTION ==
4 16 CRIMINAL PENALTY.
4 17 A person who willfully uses encryption to further a
4 18 violation of this chapter is guilty of an offense which is
4 19 separate and distinct from the predicate criminal activity and
4 20 punishable as an aggravated misdemeanor.
4 21 Sec. 5. NEW SECTION. 716A.5 VENUE FOR CRIMINAL
4 22 VIOLATIONS.
4 23 For the purpose of venue, a violation of this chapter shall
4 24 be considered to have been committed in any county in which
4 25 any of the following apply:
4 26 1. An act was performed in furtherance of any course of
4 27 conduct which violated this chapter.
4 28 2. The owner has a place of business in the state.
4 29 3. An offender has control or possession of any proceeds
4 30 of the violation, or of any books, records, documents,
4 31 property, financial instrument, computer software, computer
4 32 program, computer data, or other material or objects used in
4 33 furtherance of the violation.
4 34 4. Access to a computer or computer network was made by
4 35 wires, electromagnetic waves, microwaves, or any other means
5 1 of communication.
5 2 5. The offender resides.
5 3 6. A computer which is an object or an instrument of the
5 4 violation is located at the time of the alleged offense.
5 5 Sec. 6. NEW SECTION. 716A.6 CIVIL RELIEF == DAMAGES.
5 6 1. A person who is injured by a violation of this chapter
5 7 may bring a civil action seeking relief from a person whose
5 8 conduct violated this chapter and recover any damages incurred
5 9 including loss of profits, attorney fees, and court costs.
5 10 2. A person who is injured by the transmission of
5 11 unsolicited bulk electronic mail in violation of this chapter,
5 12 may elect, in lieu of actual damages, to recover either of the
5 13 following:
5 14 a. The lesser of ten dollars for each unsolicited bulk
5 15 electronic mail message transmitted in violation of this
5 16 chapter, or twenty=five thousand dollars per day the messages
5 17 are transmitted by the violator.
5 18 b. One dollar for each intended recipient of an
5 19 unsolicited bulk electronic mail message where the intended
5 20 recipient is an end user of the electronic mail service
5 21 provider, or twenty=five thousand dollars for each day an
5 22 attempt is made to transmit an unsolicited bulk electronic
5 23 mail message to an end user of the electronic mail service
5 24 provider.
5 25 3. a. A violation of this chapter is a violation of
5 26 section 714.16, subsection 2, paragraph "a". All the powers
5 27 conferred upon the attorney general to accomplish the
5 28 objectives and carry out the duties prescribed pursuant to
5 29 section 714.16 are also conferred upon the attorney general to
5 30 enforce this chapter, including, but not limited to, the power
5 31 to issue subpoenas, adopt rules which shall have the force of
5 32 law, and seek injunctive relief and civil penalties.
5 33 b. In seeking reimbursement pursuant to section 714.16,
5 34 subsection 7, from a person who has committed a violation of
5 35 this chapter, the attorney general may seek an order from the
6 1 court that the person pay to the attorney general on behalf of
6 2 consumers the amounts for which the person would be liable
6 3 under subsection 1 or 2, for each consumer who has a cause of
6 4 action pursuant to this section. Section 714.16, as it
6 5 relates to consumer reimbursement, shall apply to consumer
6 6 reimbursement pursuant to this section.
6 7 4. At the request of any party to an action brought
6 8 pursuant to this section, the court may, in its discretion,
6 9 conduct all legal proceedings in such a way as to protect the
6 10 secrecy and security of the computer, computer network,
6 11 computer data, computer program, and computer software
6 12 involved in order to prevent possible recurrence of the same
6 13 or a similar act by another person, and to protect any trade
6 14 secrets of any party and in such a way as to protect the
6 15 privacy of nonparties who complain about violations pursuant
6 16 to this section.
6 17 5. This section shall not be construed to limit a person's
6 18 right to pursue any additional civil remedy otherwise allowed
6 19 by law.
6 20 6. An action brought pursuant to this section shall be
6 21 commenced before the earlier of five years after the last act
6 22 in the course of conduct constituting a violation of this
6 23 chapter or two years after the injured person discovers or
6 24 reasonably should have discovered the last act in the course
6 25 of conduct constituting a violation of this chapter.
6 26 7. Personal jurisdiction may be exercised over any person
6 27 who engages in any conduct in this state governed by this
6 28 chapter.
6 29 8. The injured person shall not have a cause of action
6 30 against the electronic mail service provider that merely
6 31 transmits the unsolicited bulk electronic mail over its
6 32 computer network.
6 33 Sec. 7. NEW SECTION. 716A.7 FORFEITURES FOR VIOLATIONS
6 34 OF THIS CHAPTER.
6 35 All property, including all income or proceeds earned but
7 1 not yet received from a third party as a result of a violation
7 2 of this chapter, used in connection with a violation of this
7 3 chapter, known by the owner thereof to have been used in
7 4 violation of this chapter, shall be subject to seizure and
7 5 forfeiture pursuant to chapter 809A.
7 6 Sec. 8. Chapter 714E, Code 2005, is repealed.
7 7 EXPLANATION
7 8 This bill relates to the transmission of electronic mail
7 9 including the transmission of unsolicited bulk electronic
7 10 mail, and the solicitation of the purchase of a prescription
7 11 drug and the sale of adulterated or misbranded drugs through
7 12 the use of electronic mail or the internet.
7 13 The bill prohibits the use of a computer or computer
7 14 network to falsify or force electronic mail transmission
7 15 information through an electronic mail service provider. The
7 16 bill prohibits the knowing sale or distribution of computer
7 17 software primarily designed to falsify electronic mail
7 18 transmission information, has limited commercially significant
7 19 purpose or use other than to facilitate false electronic mail
7 20 transmission information, or is marketed for use in
7 21 facilitating false electronic mail transmission information.
7 22 A person violating these provisions is guilty of an aggravated
7 23 misdemeanor. An aggravated misdemeanor is punishable by
7 24 confinement for no more than two years and a fine of at least
7 25 $500 but not more than $5,000.
7 26 However, a person violating the provisions is guilty of a
7 27 class "D" felony if the volume of unsolicited bulk electronic
7 28 mail is either transmitted to more than 10,000 recipients in
7 29 any 24=hour period, 100,000 recipients in any 30=day period,
7 30 1,000,000 recipients in any 12=month period, or if the revenue
7 31 from a specific transmission exceeds $1,000 or the revenues
7 32 from all transactions of the person exceed $50,000. A person
7 33 committing a violation shall also be guilty of a class "D"
7 34 felony if the person employs or uses a minor to assist in the
7 35 violation.
8 1 The bill provides that a person who is not a licensed
8 2 pharmacist, physician, dentist, podiatric physician, or
8 3 veterinarian that solicits the purchase of a prescription drug
8 4 through the use of electronic mail or the internet is guilty
8 5 of a simple misdemeanor. A simple misdemeanor is punishable
8 6 by confinement for no more than 30 days or a fine of at least
8 7 $50 but not more than $500 or by both. A person who knowingly
8 8 sells an adulterated or misbranded drug through the use of
8 9 electronic mail or the internet is guilty of a class "D"
8 10 felony. A class "D" felony is punishable by confinement for
8 11 no more than five years and a fine of at least $750 but not
8 12 more than $7,500. In the event the adulterated or misbranded
8 13 drug sold causes the death of a person who consumes the drug,
8 14 the penalty for the sale is a class "B" felony. A class "B"
8 15 felony is punishable by confinement for no more than 25 years.
8 16 The bill prohibits the use of encryption to further a
8 17 violation of new Code chapter 716A and establishes a separate
8 18 penalty for the use of encryption as an aggravated
8 19 misdemeanor. An aggravated misdemeanor is punishable by
8 20 confinement for no more than two years and a fine of at least
8 21 $500 but not more than $5,000.
8 22 The bill provides for the appropriate place of venue for
8 23 prosecution of criminal violations of new Code chapter 716A.
8 24 The bill provides that persons injured by violations of Code
8 25 chapter 716A may bring a civil action seeking damages,
8 26 attorney fees, and court costs. In a civil action brought by
8 27 a person injured by the transmission of unsolicited bulk
8 28 electronic mail, the person may choose to seek statutory
8 29 damages instead of actual damages. The bill provides that
8 30 statutory damages be the lesser of $10 for each unsolicited
8 31 message transmitted in violation of Code chapter 716A or
8 32 $25,000 per day the unsolicited messages are transmitted by
8 33 the violator, or may seek statutory damages in the amount of
8 34 $1 for each intended recipient of an unsolicited message or
8 35 $25,000 for each day an attempt is made to transmit an
9 1 unsolicited message in violation of Code chapter 716A. The
9 2 bill provides that the attorney general may enforce violations
9 3 of the provisions of Code chapter 716A as violations of Code
9 4 section 714.16 relating to consumer frauds and seek such
9 5 reimbursement as an injured person is also entitled under Code
9 6 chapter 716A.
9 7 The court may take necessary steps to protect the secrecy
9 8 and security of information brought before the court to
9 9 prevent recurrence of the actions, to protect trade secrets,
9 10 and to protect the privacy of the person bringing the action.
9 11 A civil action brought against a violator of Code chapter 716A
9 12 must be commenced within five years after the last violation
9 13 or within two years after discovery of the violation of the
9 14 injured person, whichever is sooner.
9 15 The bill provides that property used in connection with a
9 16 violation of Code chapter 716A shall be subject to seizure and
9 17 forfeiture pursuant to Code chapter 809A. The bill repeals
9 18 Code chapter 714E relating to bulk electronic mail
9 19 transmissions.
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