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News From the States

Winter 2002

Index of Articles
 

Communications and Information Policy Committee News

Meetings

AFI/ASI Washington, DC, December 5-7, 2001
Focusing on the terrorism and security theme of the Winter AFI/ASI Meeting, the Committee held two joint sessions with the Criminal Justice Committee, Antiterrorism Technology and Protection vs. Privacy. And, continuing their examination of ways to improve legislator e-communications, the Committee focused on legislator web pages at a program entitled, Web Magic: How to Create and Manage Effective Web Pages. Following that, the Committee explored new tools to provide electronic privacy protection at a joint program with the AFI Commerce and Communications Committee on P3P. In addition, the Committee examined Telecommunications Deregulation and the Digital Divide. To access the handouts and view the four committee sessions which were videotaped and encoded for the web courtesy of the IBM Institute of Electronic Government www.ieg.ibm.com , see the Committee web page. http://www.ncsl.org/programs/lis/CIP/CIPCOMM/afiasi01.htm

ASI New Orleans, Louisiana, April 19-21, 2001
The spring committee meeting will begin on Friday, April 19^th with a tour of a local youth technology center established to help bridge the digital divide center. On Saturday morning, April 20^th, the committee will hold a session on state spamming laws and recent court challenges. Next, in the session This Old Website', legislators can learn how to create effective web pages. Experts will also be on hand Saturday afternoon to provide individual assistance, on a sign-up basis, to legislators who would like to create or improve their web pages. Saturday afternoon the committee will meet jointly with the Criminal Justice Committee to address several terrorism and technology issues: how to preserve communications during emergencies situations, state efforts to integrate justice information systems and an update on state wiretapping and electronic surveillance laws. You'll find the agenda at http://www.ncsl.org/programs/lis/CIP/CIPCOMM/asi02.htm

The Committee sponsored production of the following articles and publications:

• Integrated Criminal Justice Information Systems, November 2001 (produced for the joint U.S. Bureau of Justice Assistance criminal justice-information services project on integrated justice)

• Information Technology: State Legislative Committee Structures, NCSL Information Policy and Technology Series, December 2001.

For information about the Communications and Information Policy Committee, contact Jo Anne Bourquard, jo.anne.bourquard@ncsl.org

A new NCSL project, formed through a partnership of legislators, staff and private sector representatives working together, will identify ways to help legislators develop effective websites and manage large volumes of e-mail. The project has already sponsored two programs at NCSL meetings, "E-Mail Explosion: Getting a Handle on IT," and " Web Magic: How to Create and Manage Effective Web Pages." Both of these programs were videotaped and are available for viewing on the NCSL Web site at, http://www.ncsl.org/programs/lis/communicate/ecommeetings.htm. In addition to sessions at NCSL meetings, the project will also develop an online video program and a short publication, which will outline best practices for state legislators in developing effective web sites and communicating with the public electronically.

At NCSL's upcoming Spring ASI Meeting in New Orleans, Louisiana, April 19-21, 2002, the project will sponsor a 'This Old Web Page" and a "Website Makeover" session during which legislators can sign-up to get expert advice about their own web sites and receive a free 'makeover'.

The "Making E-CommunicationsWork" Web site provides information on past and upcoming sessions of the project and resources and links to useful information that can help legislators use the power of the Internet and electronic communications to communicate with citizens.

For more information about this project, contact Pam Greenberg, Pam.Greenberg@ncsl.org, or Jo Anne Bourquard, jo.anne.bourquad@ncsl.org, 303-364-7700
 

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E-Commerce

Update on UETA

With the adoption of UETA in 15 states and the District of Columbia in 2001, 38 states and the District of Columbia now have Uniform Electronic Transactions Act (UETA) laws in place. UETA, drafted by the National Conference on Uniform State Laws (NCCUSL), is a uniform act which authorizes the use of electronic records and signatures in government and business operations.

In 2001, the District of Columbia, Mississippi, Nevada, New Jersey, North Dakota and Tennessee enacted UETA, with few amendments. Arkansas enacted a modified UETA, with additional provisions under the "Attribution and Effect of Electronic Record and Electronic Signature" section and "Time and Place of Sending and Receipt" section. The Indiana General Assembly made its UETA applicable to the Uniform Commercial Code sections on sales and leases. Montana also modified UETA through additional provisions to determine when an electronic record or electronic signature is attributable to a person. In adopting UETA, New Mexico altered the "Legal Recognition of Electronic Records," "Attribution and Effect of Electronic Record and Electronic Signature," and "Time and Place of Sending and Receipt" sections. Among the amendments North Carolina made to its version of UETA, written copies must now be made available or disclosed to a consumer where a North Carolina statute, regulation or rule requires it. Oklahoma added registered certification authority requirements to its version of UETA. Oregon enacted additional applicability and procedures for electronic transactions. Virginia made technical amendments to its version of UETA.

- submitted by  Heather Morton

The Uniform Computer Information Transactions Act (UCITA), another model act promulgated by NCCUSL, was introduced by a handful of legislatures and the District of Columbia in 2001, but not adopted. This act establishes rules for licensing computer software and computerized databases, music, and information, whether on or off the Internet. Virginia and Maryland adopted UCITA in 2000. However, Virginia delayed the effective date of UCITA until July 2001 and directed Virginia's Joint Commission on Technology and Science to study and complete a report on it. The report is available at http://jcots.state.va.us/documents/00-01/SD24.pdf. Based on recommendations from the UCITA study, Virginia amended UCITA in 2001 (H.B. 2412), clarifying definitions and modifying some of the terms. In 2001, Iowa passed H.F. 569 indicating the intent to consider UCITA in 2002.

- submitted by  Jo Anne Bourquard

The results are in! Checks appear to be giving way to electronic payments according to a new Federal Reserve System study. Of the 80 billion retail payments made annually by consumers and businesses, nearly 50 billion are by check and 30 billion are by electronic instruments, such as credit cards, debit cards and the Automated Clearing House (ACH). The Federal Reserve System found that checks have declined from approximately 85 percent of non-cash payments since the last study in 1979 to about 60 percent today.

- submitted by  Heather Morton

E-Government

Digital States Report

For the past four years, the Center for Digital Government, in conjunction with Government Technology Magazine and The Progress & Freedom Foundation, has examined how states are using digital technology. The 2001 survey was divided into the four areas indicated below. States were ranked in each area of study:

Part 1: Law Enforcement and the Courts

Part II: Electronic Commerce/Business Regulation and Taxation and Revenue

Part III: Digital Democracy and Management/Administration

Part IV: Education and GIS/Transportation

The 2002 study is currently underway. More information about it is available at www.centerdigitalgov.com

- submitted by  Jo Anne Bourquard

Through H.B. 4140, the Michigan Legislature has created the nation's first cybercourt. Expected to be operational in October 2002, the court will have concurrect jurisdiction over business and commercial actions in which the amount in dispute exceeds $25,000. Cases will be tried by judges, assigned by the Michigan Supreme Court.

There will be a $200 filing fee for actions in the court and the court will use electronic document filing and teleconferencing for arguments. The practices and procedures will be governed by special rules adopted by the Michigan Supreme Court. Cases filed in the cybercourt can be removed to the circuit court system, and decisions can be contested at the appeals court.

The technological aspects of the cybercourt will be modeled in part on Courtroom 21, a cybercourt prototype developed by the College of William and Mary and the National Center for State Courts. For additional information regarding Michigan's Cybercourt, please see http://www.michigancybercourt.net/ Additional information regarding Courtroom 21, is available at http://www.courtroom21.net/

- submitted by  Heather Morton

Internet

Two recent court decisions have bolstered state efforts targeted at regulating the ever-growing volume of unsolicited advertisements sent by e-mail.

In January, California's First District Court of Appeals in San Francisco upheld that state's anti-spam law (Calif. Business & Professions Code sec. 17538.4). The California law requires unsolicited advertising e-mail messages to be labeled if they contain advertising (ADV:) or adult materials (ADV:ADLT). In a unanimous decision, the court found that the law did not violate the U.S. Constitution's Commerce Clause because it "does not directly regulate commerce occurring wholly outside the state." The law applies only when junk e-mail is sent to a California resident through an Internet service provider who has equipment within the state, a provision common in most other state anti-spam laws.

In October, the U.S. Supreme Court declined to hear an appeal of a June 2001 Washington Supreme Court decision that upheld Washington's anti-spam law. The Washington state law was designed to protect Internet users from deceptive commercial e-mail, such as e-mail with a false header, a misleading subject line, or with a third party's address used without permission.

Twenty states have enacted laws regulating unsolicited commercial or bulk electronic mail advertising. Most of these laws, like Washington's, target spammers who misrepresent, falsify, or forge the point of origin or the routing information of messages. Many states also prohibit the sale or distribution of software that is primarily designed to allow a sender to falsify the point of origin or routing of a message. Other aspects of state anti-spam laws include "opt-out" provisions that require advertisers to include certain information, such as a toll-free telephone number or valid e-mail address, in the message so that recipients can decline any future messages. Several states' laws include a provision like California's requiring senders to include a label in the subject line of a message, to indicate whether the message contains an advertisement that is not suitable for children.

In 2001 two states passed laws aimed at regulating spam. Arkansas (S.B. 975) established felony criminal penalties for falsifying information in the header, subject line, routing, or information concerning the sender or point of origin of any electronic messages, not just commercial or bulk e-mails. Wisconsin (S.B. 55) took aim at messages that contain obscene or sexually explicit materials by requiring labeling--"ADULT ADVERTISEMENT"--in the subject line.

While state anti-spam enactments were limited in 2001, fourteen states already introduced anti-spam legislation this year. Legislative actions relating to spam are likely to increase in 2002, considering these most recent court decisions and the public's growing frustration with spam.

- submitted by Pam Greenberg

A federal appeals court ruled that the Federal Trade Commission (FTC) has the authority to investigate online advertising claims against companies, even if those companies are already under inquiry by other regulatory agencies for violations of their business practices.

In Federal Trade Commission v. Ken Roberts Company, et al, the U.S. Court of Appeals for the District of Columbia ruled in favor of the FTC and against Ken Roberts Company, a business that sells instructional materials to potential investors in the commodities and securities markets. The company is currently under investigation from the Commodities Futures Trading Commission and the Securities and Exchange Commission for deceptive day-trading practices. In 1999, the FTC had asked the Ken Roberts Company to provide more information on the advertising claims made about the efficacy of its course materials. The company declined to provide the requested information, contending it had already provided relevant information to the other agencies, and those agencies - not the FTC - had exclusive jurisdiction over Ken Roberts Company.

- submitted by Janna Goodwin

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Privacy

Top Fraud Grievance is Identity Theft

According to a new report released by the FTC, there were more complaints about identity theft in 2001 than any other charge. Forty-two percent of the FTC's 204,000 complaints last year were about identity theft. Some of the methods used by thieves include opening a new credit card account using a victim's name, birth date and Social Security number; calling the card issuer, pretending to be the card owner, changing the address on the account, and then running up charges; or opening a bank account in the victim's name and writing bad checks.

More than 39 states currently have laws that address identity theft. In 2001, California and Washington enacted legislation that enhanced their existing statutes. California now requires credit reporting agencies to upon request remove a consumer's name from credit card solicitation lists and block certain information on an identity theft victim's credit report. Another California law requires credit reporting agencies to accept security alerts from consumers and place security freezes on consumer credit reports upon request. The new Washington law requires releasing personal information to identity theft victims and requires law enforcement to upon request record fingerprints for identification in cases of identity theft.

- submitted by Rita Thaemert

At least 27 laws were passed in states last year that considered the use or non-use of SSNs. Applications for hunting and fishing licenses in Alaska and Montana no longer require the number. Professional licenses in Washington will not require a SSN. Education systems in Louisiana, Rhode Island and Washington must develop new student identifier numbers instead of SSNs. Some voter records in Kansas and Louisiana will have SSNs removed. Certain employers in Louisiana and Minnesota must substitute an I.D. number for the SSN. New Jersey requires the removal of an SSN from a public utility employee's I.D. badge.

Connecticut takes SSNs off of land records. Along with several other kinds of personal data, SSNs in Georgia are exempt from public disclosure. Agencies and court clerks in Virginia are prohibited from disclosure of account information or SSNs. The Washington Division of Child Support may not release personal data, including SSNs, if physical harm may come to a child.

- submitted by Rita Thaemert

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Telecommunications

Following the tragic events of September 11, 2001, NCSL created a "Protecting Democracy - States Respond to Terrorism" Web site, located at http://www.ncsl.org/programs/press/2001/usaattack.htm. The site is designed to track state legislative activity in response to the terrorist attacks.

Linked to this site are a series of issue briefs designed to help public policy makers in the months ahead. One of the briefs is Electronic Surveillance, written by Janna Goodwin, Bob Boerner and Susan Frederick. The brief offers an overview on recent state actions, law enforcement, federal proposals and selected references. It is located at http://www.ncsl.org/programs/press/2002/issues/surveillance.htm.

In January, the California legislature removed language authorizing expanded electronic surveillance and "roving" wiretaps from a pending counter- terrorism proposal. The original legislation, backed by Governor Gray Davis, would have expanded wiretapping authority to e-mail and Internet communications as well as allowing roving wiretaps. Roving wiretap orders are granted for particular suspects, rather than specific phones, so that law enforcers eavesdrop on a suspect's conversations, regardless of what telephone line a suspect uses.

As of February 2002, states are considering at least 17 other electronic surveillance bills.  For example, VA H. B. 38 expands the law of wiretaps and enables an attorney of the Commonwealth to request a wiretap when terrorist activity is suspected.

- submitted by Bob Boerner

In a landmark decision, the United State Supreme Court ruled on January 16, 2002  the Federal Communications Commission (FCC) does have the authority to set the rates cable television companies pay to share conduits, rights-of-way or utility poles for the delivery of high-speed Internet services. The Court held that the federal Pole Attachments Act does cover attachments that provide high-speed Internet access and cable television services. The act was clear in stating the FCC should limit how much a utility could charge a company using the utility's poles to carry a cable television feed. But there was some doubt as to whether prices could be regulated when cables were being used for Internet access. In the 6-2 ruling, the Court reversed a decision of the 11^th Circuit Court of Appeals holding the federal act did not cover specific rate formulas for attachments.

- submitted by Bob Boerner

A Minnesota bill (S.B. 2349) was introduced in 2001 that would break Qwest into separate wholesale and retail operations. Qwest would be required to separate its retail business that serves business and residential customers from its wholesale business that serves only other telephone companies. The bill was referred to committee and it carried over to 2002 legislative session. At least one state, Wisconsin, currently has a structural separation provision in their state statutes (Wis. Stat. Sec. 196.204).

Illinois (H.B. 3120 and S.B. 928), Maryland (H.B. 957), Michigan (H.B. 4764), New Jersey (A.B. 3428), Pennsylvania (H.B. 1246) considered similar legislation and the state public utility agencies in Florida, New Jersey and Virginia considered similar proposals in 2001. Pennsylvania also considered a resolution (H.R. 103) encouraging the Pennsylvania Public Utility Commission to reject the structural separation of Verizon's retail operations. This is an issue state lawmakers will likely revisit during 2002 legislative sessions.

- submitted by Bob Boerner

The Federal Trade Commission (FTC) announced on January 22, 2002, that it is considering the creation of a national "do not call" registery. And, it is considering the strengthening of telemarketing rules that forbid late-night calls and deceptive telephone sales pitches. The proposal would allow consumers to call one toll-free telephone number in order to stop most telemarketing calls made from outside a consumer's state. The FTC plans to hold public hearings in June, 2002.

But, state legislatures have been at the forefront of the telemarketing issue for many years. As of January, 2001, nearly half of the states require some form of licensing by telemarketers. In 2001, 17 states enacted additional regulations pertaining to telemarketing and consumer rights. Arizona and Virginia passed measures that regulate the time that telemarketers may call residents of the state. And, Colorado, Louisiana, Oregon and Wyoming created or modified state do-not-call list acts, bringing the total number of states with telemarketing laws to 26.

The Professional Firefighters Union of Indiana filed a federal lawsuit in December, 2001, challenging that state's new no-call law. The union's ability to contact supporters is threatened, according to the plaintiffs, because over 784,000 state residents have been placed on the state "no-call" list. The union argues the law is unconstitutional because the state allows anyone to enter a number on the list and there is no provision for taking a number off the list. The union is also challenging the exemptions for insurance agents, newspapers and non-profit organizations.

- submitted by Bob Boerner

Recently, marketers have begun to use wireless text messaging -- essentially e-mail via cellular phones -- to deliver sales pitches. The messages, known commonly as "spam," can be annoying and sometimes costly to cell phone users, particularly if they have to pay to receive the message.

As cellular phone technology grows, the issue has the potential to become a problem. There are more than 100,000,000 wireless subscriptions nationally, and many text-message services rely on a phone number plus server name as an address. Cellular phone numbers are issued in blocks of 9,999, so if a company gets one viable number, it can determine hundreds of other potentially valid numbers.

In 2002, California State Assemblyman Tim Leslie introduced A.B. 1769, legislation that would make it illegal for a marketer to send unsolicited mail to cellular phone or pagers. Federal lawmakers have already introduced legislation that would make it illegal to send  unsolicited advertisements to a wireless phone.  The proposal, HR 113, would prohibit any unsolicited commercial text, graphic or image from being sent to wireless phones. The Wireless Telephone Spam Protection Act was sponsored by Rep. Rush Holt, D-NJ, in September 2000 and was referred the next month to a House subcommittee, where it languished. The act is actually an amendment to the Communications Act of 1934 and seeks to "prohibit the use of text, graphic, or image messaging systems of wireless telephone systems to transmit unsolicited commercial messages."

Critics say the legislation not only would make spam illegal, but also would prevent the transmission of legitimate marketing messages. They argue a more effective tactic would be to build anti-spam protections into the escalating wireless infrastructure.

- submitted by Janna Goodwin