Report Title:

E-mail, Unsolicited, Restrictions

Description:

Restricts the sending of unsolicited e-mail. Requires labeling in the subject line to distinguish this type of e-mail. Establishes civil and criminal penalties.

HOUSE OF REPRESENTATIVES

H.B. NO.

327

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO E-MAIL.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter in Title 26 to be appropriately designated and to read as follows:

"Chapter

UNSOLICITED E-MAIL ADVERTISEMENT

§   -1 Definitions. As used in this chapter,

"E-mail" means, as a noun, an electronic computer message sent to an e-mail system or service, including a computer, cellular phone, or other hand-held e-mail-reading device. "E-mail" or "cause to be e-mailed" means, as a verb, the act of sending an e-mail message, but does not include or refer to the transmission of any documents by a telecommunications utility or internet service provider to the extent that the telecommunications utility or internet service provider merely carries that transmission over its network.

"E-mail advertisement" means any e-mail consisting of advertising material, including material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit.

"E-mail service provider" means any business or organization qualified to do business in this State that provides individuals, corporations, or other entities the ability to send or receive e-mail through equipment located in this State and that is an intermediary in sending or receiving e-mail.

"Initiate" refers to the action by the initial sender of an unsolicited e-mail advertisement in sending the e-mail or causing it to be sent. It does not refer to the actions of any intervening e-mail service provider that may handle or retransmit the electronic message.

"Registered user" means any individual, corporation, or other entity that maintains an e-mail address with an e-mail service provider.

"Unsolicited e-mail advertisement" means an e-mail advertisement that meets both of the following requirements:

(1) The e-mail is addressed to a recipient with whom the initiator does not have an existing business or personal relationship; and

(2) The documents are not sent at the request of, or with the express consent of, the recipient.

§   -2 Conduct prohibited. (a) No person or entity conducting business in this State shall initiate the sending of an e-mail advertisement for delivery to a state resident via an e-mail service provider's service or equipment located in this State, unless that person or entity:

(1) Establishes a toll-free telephone number or valid sender-operated return e-mail address that the recipient of the unsolicited documents may call or e-mail to notify the sender not to e-mail any further unsolicited documents;

(2) The e-mail includes a statement informing the recipient of the toll-free telephone number or valid return e-mail address and notifies the recipient that the number or e-mail can be used to notify the sender not to e-mail the recipient any further unsolicited documents to the e-mail address or addresses specified by the recipient. The statement shall be the first text in the body of the message and shall be of the same size as the majority of the text of the message; and

(3) The subject line of each message shall include "ADV:" as the first four characters. If these messages contain information that consists of unsolicited advertising material, including the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit, that may only be viewed, purchased, rented, leased, or held in possession by an individual eighteen years of age and older, the subject line of each message shall include "ADV:ADLT" as the first eight characters.

(b) Any recipient of an unsolicited e-mail advertisement that does not comport with this section is entitled to bring action in district court in the district in which the e-mail was received. The court shall award damages of at least $25 for each e-mail that does not contain the appropriate subject line. If the sender fails to have valid contact information, or fails to honor a request to cease the unsolicited e-mail advertisements, the court shall award damages of at least $500.

§   -3 Employer's rights. An employer who provides e-mail addresses for the employer's employees may notify the person or entity conducting business in this State who initiates the unsolicited e-mail advertisement to cease e-mailing on behalf of all of the employees who may use employer-provided and employer-controlled e-mail addresses.

§   -4 Sender's response. Upon notification by a recipient of the request not to receive any further e-mail advertisements pursuant to section    -2, no person or entity conducting business in this State may e-mail or cause to be e-mailed any e-mail advertisements to that recipient.

§   -5 E-mail service provider's rights. (a) No registered user of an e-mail service provider shall use or cause to be used that e-mail service provider's equipment located in this State in violation of that e-mail service provider's policy prohibiting or restricting the use of its service or equipment for the initiation of unsolicited e-mail advertisements.

(b) No individual, corporation, or other entity shall use or cause to be used, by initiating an unsolicited e-mail advertisement, an e-mail service provider's equipment located in this State in violation of that e-mail service provider's policy prohibiting or restricting the use of its equipment to deliver unsolicited e-mail advertisements to its registered users.

(c) An e-mail service provider shall not be required to create a policy prohibiting or restricting the use of its equipment for the initiation or delivery of unsolicited e-mail advertisements.

(d) Nothing in this section shall be construed to limit or restrict the rights of an e-mail service provider under title 47 United States Code section 230(c)(1), or any decision of an e-mail service provider to permit or to restrict access to or use of its system, or any exercise of its editorial function.

(e) In addition to any other action available under law, any e-mail service provider whose policy on unsolicited e-mail advertisements is violated as provided in this section may bring a civil action to recover the actual monetary loss suffered by that provider by reason of that violation, or liquidated damages of $50 for each e-mail initiated or delivered in violation of this section, whichever amount is greater, up to a maximum of $25,000 per day.

The court may award reasonable attorney's fees to a prevailing party.

(f) The e-mail service provider shall be required to establish as an element of its cause of action that, prior to the alleged violation, the defendant had actual notice of both of the following:

(1) The e-mail service provider's policy on unsolicited e-mail advertising; and

(2) The fact that the defendant's unsolicited e-mail advertisements would use the e-mail service provider's equipment located in this State, or cause it to be used.

§   -6 Jurisdiction. For purposes of bringing a civil action under this chapter, a person who initiates e-mail in one jurisdiction from another jurisdiction is deemed to have personally accessed the computer, cellular phone, or other hand-held e-mail-reading device in each jurisdiction.

§   -7 Chapter in relation to federal law. The attorney general shall monitor federal legislation regulating unsolicited advertising by e-mail and shall notify the president of the senate and speaker of the house of representatives in writing if such legislation is enacted, so that they may determine if additional legislative action need be taken."

SECTION 2. Chapter 708, Hawaii Revised Statutes, is amended by adding a new section to part IX to be appropriately designated and to read as follows:

"§708- Computer damage by e-mail. (1) A person commits the offense of computer damage by e-mail if the person knowingly and without permission uses the internet domain name of another individual, corporation, or entity in connection with the sending of one or more e-mail messages, and thereby damages or causes damage to a computer, computer system, or computer network.

(2) As used in this section, "e-mail" means an electronic computer message sent to an e-mail system or service, including a computer, cellular phone, or other hand-held e-mail-reading device.

(3) Computer damage by e-mail is a misdemeanor.

(4) For purposes of bringing a criminal action under this section, a defendant who accesses a computer, cellular phone, or other hand-held e-mail-reading device computer system in one jurisdiction from another jurisdiction is deemed to have personally accessed the computer, computer system, or computer network in each jurisdiction."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________