House File 463 - Introduced
HOUSE FILE
BY RANTS
Passed House, Date Passed Senate, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved
A BILL FOR
1 An Act regulating the transmission of commercial electronic mail
2 messages involving multiple messages, false routing
3 information, false registration information, and unauthorized
4 computer access, and providing remedies and penalties.
5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
6 TLSB 1484YH 81
7 kk/gg/14
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. "Commercial electronic mail message" means any
1 5 electronic mail message having the primary purpose of the
1 6 commercial advertisement or promotion of a commercial product
1 7 or service, including content on an internet website operated
1 8 for a commercial purpose, but does not include a transactional
1 9 or relationship message. The inclusion in an electronic mail
1 10 message of a reference to a commercial entity or a link to the
1 11 website of a commercial entity does not, by itself, cause that
1 12 electronic mail message to be treated as a commercial
1 13 electronic mail message for the purpose of this section, if
1 14 the contents or circumstances of the electronic mail message
1 15 indicate a primary purpose other than commercial advertisement
1 16 or promotion of a commercial product or service.
1 17 2. "Computer" means the same as defined in section 702.1A.
1 18 3. "Computer network" means the same as defined in section
1 19 702.1A.
1 20 4. "Computer system" means the same as defined in section
1 21 702.1A.
1 22 5. "Domain name" means any alphanumeric designation that
1 23 is registered with or assigned by any domain name registrar,
1 24 domain name registry, or other domain name registration
1 25 authority as part of an electronic address on the internet.
1 26 6. "Electronic mail" means an electronic message, file,
1 27 data, or other electronic information that is transmitted
1 28 using an internet or intranet computer network to one or more
1 29 persons.
1 30 7. "Electronic mail service provider" means any person,
1 31 including an internet service provider, that is an
1 32 intermediary in sending and receiving electronic mail and that
1 33 provides to the public electronic mail accounts or online user
1 34 accounts from which electronic mail may be sent and received.
1 35 8. "Header information" means the source, destination, and
2 1 routing information attached to an electronic mail message,
2 2 including the originating domain name, the originating
2 3 address, and technical information that authenticates the
2 4 sender of an electronic mail message for computer network
2 5 security or computer network management purposes.
2 6 9. "Initiate the transmission" means to originate or
2 7 transmit a commercial electronic mail message or to procure
2 8 the origination or transmission of that message, regardless of
2 9 whether the message reaches its intended recipients, but does
2 10 not include actions that constitute routine conveyance of such
2 11 message.
2 12 10. "Internet" has the same meaning as in section 4.1.
2 13 11. "Internet protocol address" means the string of
2 14 numbers by which locations on the internet are identified by
2 15 routers or other computers connected to the internet.
2 16 12. "Materially falsify" means to alter or conceal in a
2 17 manner that would impair the ability of a recipient of an
2 18 electronic mail message, an electronic mail service provider
2 19 processing an electronic mail message on behalf of a
2 20 recipient, a person alleging a violation of this chapter, or a
2 21 law enforcement agency to identify, locate, or respond to the
2 22 person that initiated the electronic mail message or to
2 23 investigate an alleged violation of this chapter.
2 24 13. "Multiple" means more than ten commercial electronic
2 25 mail messages during a twenty=four=hour period, more than one
2 26 hundred commercial electronic mail messages during a thirty=
2 27 day period, or more than one thousand commercial electronic
2 28 mail messages during a one=year period.
2 29 14. "Originating address" means the string of characters
2 30 used to specify the source of any electronic mail message.
2 31 15. "Receiving address" means a unique string of
2 32 characters used to specify a recipient.
2 33 16. "Recipient" means a person who receives a commercial
2 34 electronic mail message at any one of the following receiving
2 35 addresses:
3 1 a. That is furnished by an electronic mail service
3 2 provider that bills for furnishing and maintaining that
3 3 receiving address to a mailing address within this state.
3 4 b. That is ordinarily accessed from a computer located
3 5 within this state or by a person domiciled within this state.
3 6 c. Any other receiving address with respect to which this
3 7 section can be imposed consistent with the Constitution of the
3 8 United States.
3 9 17. "Routine conveyance" means the transmission, routing,
3 10 relaying, handling, or storing, through an automated technical
3 11 process, of an electronic mail message for which another
3 12 person has identified the recipients or provided the recipient
3 13 addresses.
3 14 18. "Transactional or relationship message" means an
3 15 electronic mail message the primary purpose of which is to do
3 16 any of the following:
3 17 a. Facilitate, complete, or confirm a commercial
3 18 transaction that the recipient has previously agreed to enter
3 19 into with the sender.
3 20 b. Provide warranty information, product recall
3 21 information, or safety or security information with respect to
3 22 a commercial product or service used or purchased by the
3 23 recipient.
3 24 c. Provide notification concerning a change in the terms
3 25 or features of; a change in the recipient's standing or status
3 26 with respect to; or, at regular periodic intervals, account
3 27 balance information or other type of account statement with
3 28 respect to, a subscription, membership, account, loan, or
3 29 comparable ongoing commercial relationship involving the
3 30 ongoing purchase or use by the recipient of products or
3 31 services offered by the sender.
3 32 d. Provide information directly related to an employment
3 33 relationship or related benefit plan in which the recipient is
3 34 currently involved, participating, or enrolled.
3 35 e. Deliver goods or services, including product updates or
4 1 upgrades, that the recipient is entitled to receive under the
4 2 terms of a transaction that the recipient has previously
4 3 agreed to enter into with the sender.
4 4 Sec. 2. NEW SECTION. 716A.2 PROHIBITED ACTS ==
4 5 PENALTIES.
4 6 1. It is unlawful for a person, with regard to commercial
4 7 electronic mail messages sent from or to a computer in this
4 8 state, to knowingly violate any of the following:
4 9 a. Use a computer to relay or retransmit multiple
4 10 commercial electronic mail messages, with the intent to
4 11 deceive or mislead recipients or any electronic mail service
4 12 provider, as to the origin of those messages.
4 13 b. Materially falsify header information in multiple
4 14 commercial electronic mail messages and purposely initiate the
4 15 transmission of those messages.
4 16 c. Register, using information that materially falsifies
4 17 the identity of the actual registrant, five or more electronic
4 18 mail accounts or online user accounts or two or more domain
4 19 names and purposely initiate the transmission of multiple
4 20 commercial electronic mail messages from one, or any
4 21 combination, of those accounts or domain names.
4 22 d. Falsely represent the right to use five or more
4 23 internet protocol addresses, and purposely initiate the
4 24 transmission of multiple commercial electronic mail messages
4 25 from those addresses.
4 26 2. a. A person who violates subsection 1 is guilty of
4 27 illegally transmitting multiple commercial electronic mail
4 28 messages. Except as otherwise provided in paragraph "b",
4 29 illegally transmitting multiple commercial electronic mail
4 30 messages is a class "D" felony.
4 31 b. Illegally transmitting multiple commercial electronic
4 32 mail messages is a class "C" felony if any of the following
4 33 occur:
4 34 (1) Regarding a violation of subsection 1, paragraph "c",
4 35 the offender, using information that materially falsifies the
5 1 identity of the actual registrant, knowingly registers twenty
5 2 or more electronic mail accounts or online user accounts or
5 3 ten or more domain names, and purposely initiates, or
5 4 conspires to initiate, the transmission of multiple commercial
5 5 electronic mail messages from the accounts or domain names.
5 6 (2) Regarding any violation of subsection 1, the volume of
5 7 commercial electronic mail messages the person transmits in
5 8 committing the violation exceeds two hundred fifty during any
5 9 twenty=four=hour period, two thousand five hundred during any
5 10 thirty=day period, or twenty=five thousand during any one=
5 11 year period.
5 12 (3) Regarding any violation of subsection 1, during any
5 13 one=year period the aggregate loss to the victim or victims of
5 14 the violation is five hundred dollars or more, or during any
5 15 one=year period the aggregate value of the property or
5 16 services obtained by the person as a result of the violation
5 17 is five hundred dollars or more.
5 18 (4) Regarding any violation of subsection 1, the person
5 19 commits the violation with three or more other persons with
5 20 respect to whom the person was the organizer or leader of the
5 21 activity that resulted in the violation.
5 22 (5) Regarding any violation of subsection 1, the person
5 23 knowingly assists in the violation through the provision or
5 24 selection of electronic mail addresses to which the commercial
5 25 electronic mail message is transmitted, if the person knows
5 26 that the electronic mail addresses of the recipients were
5 27 obtained using an automated means from an internet website or
5 28 proprietary online service operated by another person, and
5 29 that website or online service included, at the time the
5 30 electronic mail addresses were obtained, a notice stating that
5 31 the operator of that website or online service will not
5 32 transfer addresses maintained by that website or online
5 33 service to any other party for the purpose of initiating the
5 34 transmission of, or enabling others to initiate the
5 35 transmission of, electronic mail messages.
6 1 (6) Regarding any violation of subsection 1, the person
6 2 knowingly assists in the violation through the provision or
6 3 selection of electronic mail addresses of the recipients
6 4 obtained using an automated means that generates possible
6 5 electronic mail addresses by combining names, letters, or
6 6 numbers into numerous permutations.
6 7 3. Illegally transmitting multiple commercial electronic
6 8 mail messages and unauthorized computer access in violation of
6 9 this section are class "B" felonies if the offender has been
6 10 previously convicted of a violation of this chapter, or a
6 11 violation of a law of another state or federal law regarding
6 12 the transmission of electronic mail messages or unauthorized
6 13 access to a computer, or if the person commits the violation
6 14 of this section in the furtherance of a felony.
6 15 4. A person, with regard to commercial electronic mail
6 16 messages sent from or to a computer in this state, shall not
6 17 knowingly access a computer without authorization and
6 18 purposely initiate the transmission of multiple commercial
6 19 electronic mail messages from or through the computer. Except
6 20 as otherwise provided in subsection 3, a violation of this
6 21 subsection is a violation of section 716.6B.
6 22 Sec. 3. NEW SECTION. 716A.3 CIVIL ENFORCEMENT.
6 23 1. a. The attorney general or an electronic mail service
6 24 provider that is injured by a violation of this chapter may
6 25 bring a civil action seeking relief from a person whose
6 26 conduct violated this chapter. The civil action may be
6 27 commenced at any time within one year of the date of the act
6 28 that is the basis of the civil action.
6 29 b. In a civil action brought by the attorney general
6 30 pursuant to this subsection, the court may award injunctive
6 31 relief and attorney fees. The court also may impose a civil
6 32 penalty against the offender in an amount that is the lesser
6 33 of twenty=five thousand dollars for each day a violation
6 34 occurs, or not less than two dollars but not more than eight
6 35 dollars for each commercial electronic mail message initiated
7 1 in violation of this chapter. Civil penalties collected by
7 2 the attorney general pursuant to this paragraph shall be
7 3 deposited in the general fund of the state.
7 4 c. In a civil action brought by an electronic mail service
7 5 provider pursuant to this subsection, the court may award
7 6 injunctive relief, attorney fees, and damages in an amount
7 7 equal to the greater of the following:
7 8 (1) The sum of the actual damages incurred by the
7 9 electronic mail service provider as a result of a violation of
7 10 this chapter, including any receipts of the offender that are
7 11 attributable to a violation of this chapter.
7 12 (2) Liquidated damages in an amount that is the lesser of
7 13 twenty=five thousand dollars for each day a violation occurs,
7 14 or not less than two dollars but not more than eight dollars
7 15 for each commercial electronic mail message initiated in
7 16 violation of this chapter.
7 17 d. In assessing damages awarded under paragraph "c", the
7 18 court may consider whether the offender has established and
7 19 implemented commercially reasonable practices and procedures
7 20 designed to effectively prevent such violations, or whether
7 21 the violation occurred despite commercially reasonable efforts
7 22 to maintain the practices and procedures established.
7 23 2. Any equipment, software, or other technology of a
7 24 person who violates this chapter that is used or intended to
7 25 be used in the commission of a violation of this chapter, and
7 26 any real or personal property that constitutes or is traceable
7 27 to the gross proceeds obtained from the commission of a
7 28 violation of this chapter, is subject to seizure and
7 29 forfeiture pursuant to chapter 809A.
7 30 3. The attorney general may bring a civil action, pursuant
7 31 to the federal CAN=SPAM Act of 2003, 15 U.S.C. } 7701 et seq.,
7 32 on behalf of the residents of the state in a federal district
7 33 court that has jurisdiction for a violation of the federal
7 34 CAN=SPAM Act of 2003, but the attorney general shall not bring
7 35 a civil action under both this subsection and subsection 1.
8 1 If a federal court dismisses a civil action brought under this
8 2 subsection for reasons other than upon the merits, a civil
8 3 action may be brought under subsection 1.
8 4 Sec. 4. NEW SECTION. 716A.4 CONSTRUCTION OF CHAPTER.
8 5 This chapter shall not be construed to do any of the
8 6 following:
8 7 1. To require an electronic mail service provider to
8 8 block, transmit, route, relay, handle, or store certain types
8 9 of electronic mail messages.
8 10 2. To prevent or limit, in any way, an electronic mail
8 11 service provider from adopting a policy regarding electronic
8 12 mail, including a policy of declining to transmit certain
8 13 types of electronic mail messages, or from enforcing such
8 14 policy through technical means, through contract, or pursuant
8 15 to any remedy available under any other federal, state, or
8 16 local criminal or civil law.
8 17 3. To render lawful any policy adopted under this chapter
8 18 that is unlawful under any other law.
8 19 Sec. 5. Chapter 714E, Code 2005, is repealed.
8 20 EXPLANATION
8 21 This bill relates to the transmission of electronic mail
8 22 messages, including establishing restrictions on the
8 23 transmission of multiple commercial electronic mail messages,
8 24 falsifying routing information, falsifying registration
8 25 information for electronic mail user accounts and internet
8 26 protocol addresses, and prohibiting unauthorized access to a
8 27 computer for transmitting multiple electronic mail messages.
8 28 The bill creates the crime of illegal transmission of
8 29 multiple commercial electronic mail messages which is
8 30 punishable as a class "D" felony for a person who uses a
8 31 computer to send multiple commercial electronic mail messages
8 32 with the intent to deceive the recipient as to the origin of
8 33 the messages; for a person who falsifies the source,
8 34 destination, and routing information attached to an electronic
8 35 mail message; for a person who registers five or more
9 1 electronic mail accounts using information that falsifies the
9 2 identity of the registrant and transmits multiple mail
9 3 messages from those accounts; and for a person who falsely
9 4 represents the right to use five or more internet protocol
9 5 addresses and transmits multiple electronic mail messages from
9 6 those addresses. A class "D" felony is punishable by
9 7 confinement for no more than five years and a fine of at least
9 8 $750 but not more than $7,500.
9 9 Violations regarding the transmission of multiple
9 10 electronic mail messages may be upgraded to a class "C" felony
9 11 if an offender registered for 20 or more electronic mail
9 12 accounts or 10 or more domain names and transmits multiple
9 13 electronic mail messages; if the number of electronic mail
9 14 messages transmitted is more than 250 during any 24=hour
9 15 period or 2,500 during any 30=day period or 25,000 during any
9 16 one=year period; if during any one=year period the total loss
9 17 of the victim is $500 or more; if the violation was committed
9 18 with three or more people and the offender was the leader of
9 19 the violation; if the victims were selected through automated
9 20 means from a website or from a proprietary website which
9 21 stated it would not transfer addresses to any other party; and
9 22 if electronic mail addresses were obtained through an
9 23 automated process of generating possible electronic mail
9 24 addresses. A class "C" felony is punishable by confinement
9 25 for no more than 10 years and a fine of at least $1,000 but
9 26 not more than $10,000.
9 27 Violations regarding the transmission of multiple
9 28 electronic mail messages may be upgraded to a class "B" felony
9 29 if the offender has been previously convicted of an unlawful
9 30 transmission of multiple electronic mail messages in this
9 31 state or of a similar violation in another state or against
9 32 federal law, or if the violation occurred in furtherance of a
9 33 felony. A class "B" felony is punishable by confinement for
9 34 no more than 25 years.
9 35 The bill provides that knowingly accessing a computer
10 1 without authorization to initiate the transmission of multiple
10 2 electronic mail messages is a violation of Code section 716.6B
10 3 and subject to the penalties thereunder.
10 4 The bill provides for civil enforcement for violations by
10 5 the attorney general of this state or by an electronic mail
10 6 service provider injured by the violation. Actions for civil
10 7 enforcement must be brought within one year from the date of
10 8 the violation. The attorney general may seek injunctive
10 9 relief, attorney fees, and civil penalties in the amount of
10 10 $25,000 for each day a violation occurs or an amount not less
10 11 than $2 but not more than $8 for each electronic mail message
10 12 initiated in violation of new Code chapter 716A, whichever is
10 13 lesser. In a civil action brought by an electronic mail
10 14 service provider, the court may award injunctive relief,
10 15 attorney fees, and damages equaling the greater of the amount
10 16 of actual damages incurred as a result of the violation
10 17 including the offender's receipts resulting from the
10 18 violation, or liquidated damages of $25,000 for each day a
10 19 violation occurs or an amount not less than $2 but not more
10 20 than $8 for each electronic mail message initiated in
10 21 violation of new Code chapter 716A. In actions brought by an
10 22 electronic mail service provider, the court may consider
10 23 whether the offender uses commercially reasonable practices
10 24 and procedures designed to effectively prevent such violations
10 25 or if the violation occurred despite the offender having such
10 26 reasonable practices and procedures.
10 27 The bill provides that the attorney general may also
10 28 initiate a civil action under the provisions of the federal
10 29 CAN=SPAM Act of 2003, unless the attorney general has brought
10 30 an action under new Code chapter 716A.
10 31 The bill provides that any equipment, software, or other
10 32 technology of an offender that is used in the commission of
10 33 the violation, including any proceeds from commission of the
10 34 violation, is subject to seizure and forfeiture.
10 35 The bill repeals Code chapter 714E, relating to
11 1 restrictions on use of electronic mail transmissions and the
11 2 civil enforcement of those restrictions.
11 3 LSB 1484YH 81
11 4 kk:rj/gg/14.1