Electronic Mail (Email)

Prohibits the transmission of unrequested unsolicited commercial
electronic mail (email).  Establishes civil and criminal

HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The internet has revolutionized communication.
 2 Its ability to reach across the globe, to be available day or
 3 night, and to be a low-cost method of information transmission
 4 has imposed a paradigm shift in information transmission.
 5      Electronic mail, or email, has been one of the most popular
 6 features of the internet, widely used for both commercial and
 7 personal purposes.  Unfortunately, there are those who seek to
 8 profit from email at the expense of others through the
 9 transmission of unsolicited commercial email.  Nicknamed "spam",
10 these torrents of unsolicited commercial email -- millions of
11 messages daily -- clog users' mailboxes and the internet itself
12 every day.  Spam inflicts excess use, and therefore excess costs,
13 on the internet service providers, forcing them to increase their
14 processors to handle the extra load.  Internet service providers
15 purchase "bandwidth" -- a measure of how fast they can connect to
16 the Internet -- based on projected usage by their customers. Spam
17 causes them to incur costs to increase their bandwidth, not for
18 their customers' benefit, but so that the spammers can plaster
19 their messages, free of charge, on thousands and even millions of

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 1 email accounts.
 2      Spam also has a negative impact on internet subscribers, who
 3 pay the costs to upgrade the system passed on by their providers,
 4 and who experience the slow downs and delays caused by the
 5 inordinate amount of commercial traffic.
 6      The purpose of this bill is to require those who send
 7 unsolicited commercial email to ensure that their message only
 8 goes to those who want to hear it, and who want to pay the costs
 9 of receiving it.  It does not outlaw commercial speech: it just
10 regulates who shall pay for it.  The sender can send it "free" to
11 those who expressly consent to receive it; otherwise, the sender
12 must pay those consumers and their internet service providers for
13 the burden of doing so. This bill creates a private right of
14 action for consumers who receive this type of email, and for
15 their service providers.
16      SECTION 2.  Chapter 481B, Hawaii Revised Statutes, is
17 amended by adding a new section to be appropriately designated
18 and to read as follows:
19      "481B-    Unsolicited commercial email; prohibited.  (a)
20 No person shall send unsolicited commercial email to an email
21 address in this State unless:
22      (1)  The sender has a pre-existing and ongoing business or
23           personal relationship with the recipient, or the

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 1           recipient has previously provided express consent or
 2           permission to receive commercial email from the sender;
 3           and
 4      (2)  The sender clearly provides, at the beginning of the
 5           unsolicited commercial email, the identity of the
 6           person sending the message and the correct and working
 7           return email address of the sender.
 8      (b)  Any violation of subsection (a) shall entitle the
 9 recipient of the email to damages of $500 for each violation.
10 The recipient may sue the violator in the appropriate state court
11 and recover damages and the costs of the suit, including attorney
12 fees.
13      (c)  A violation of subsection (a) shall constitute a
14 misdemeanor if the civil damages caused by the email to the
15 victims in this State do not exceed $2,000.  If the damages
16 exceed $2,000, a violation shall constitute a class C felony.
17      (d)  Any internet service provider doing business in the
18 State whose customers received unrequested unsolicited commercial
19 email as defined in subsection (a) shall have a right of action
20 against the sender.  The provider's damages shall be the actual
21 cost of the additional burden on the provider's system, including
22 costs relating to any system crash due to the additional burden,
23 or $500, whichever is greater.

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 1      (e)  The State shall have jurisdiction over any sending of
 2 unsolicited email that is received as an address within the State
 3 as though the sender was physically present in the State.  Venue
 4 for any violation of this section shall be in the appropriate
 5 state court.
 6      (f)  As used in this section, "email" means electronic mail
 7 sent via computer."
 8      SECTION 3.  New statutory material is underscored.
 9      SECTION 4.  This Act shall take effect upon its approval.
11                           INTRODUCED BY:  _______________________