|
Unsolicited Commercial E-Mail Advertisements (Anti-Spam Legislation)
2004 Legislative Activity
Updated 4-2-05
Summary: Legislation aimed at controlling unsolicited commercial e-mail has been enacted in five states in 2004: California, Florida, Maryland, Michigan, and Utah. Bills were introduced in at least 25 states in 2004.
The federal CAN-SPAM Act of 2003, effective January 1, 2004, prohibits fraudulent and deceptive commercial e-mail messages and requires senders to include information allowing recipients to opt-out of receiving further messages.
The law preempts any state law that "expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto."
The federal law does not "preempt the applicability of--
(A) State laws that are not specific to electronic mail, including State trespass, contract, or tort law; or
(B) other State laws to the extent that those laws relate to acts of fraud or computer crime."
CALIFORNIA
S.B. 342
This bill would also require the [opt-out] statement to include the sender's identity, postal address, and e-mail address or telephone number. The bill would state that the recipient of an unsolicited e-mailed advertisement may notify the sender not to e-mail any further unsolicited advertising materials to the e-mail address or addresses specified by the recipient.
S.B. 1457
Signed by Governor, 9/17/04
This bill would define commercial e-mail advertisements to include both solicited and unsolicited advertisements. The bill would prohibit a person or entity from initiating or advertising in a commercial e-mail advertisement either sent from California or sent to a California e-mail address if the e-mail or an attachment to the e-mail contains or is accompanied by any false, misrepresented, obscured, forged, or misleading information. The bill would also prohibit a commercial e-mail advertisement sent from California or to a California e-mail address, or an attachment thereto, from containing a statement that includes deceptive information regarding the authorization by the recipient to send commercial e-mail advertisements or regarding opting out of receiving future commercial e-mail advertisements. This bill would authorize the recipient of an e-mail advertisement transmitted in violation of any of the above provisions, the e-mail service provider, or the Attorney General to bring an action to recover actual damages and liquidated damages of $1,000 per e-mail advertisement transmitted in violation of the provisions, up to $1,000,000 per incident, subject to reduction by the court, and would authorize the award of reasonable attorney's fees and costs to a prevailing plaintiff.
FLORIDA
H.B. 1363
Prohibits initiating or assisting in transmission of unsolicited commercial electronic mail under certain circumstances; prohibits distribution of software or any other system designed to falsify missing routing information identifying point of origin or transmission path of such mail message, etc.
S.B. 1084
This bill would prohibit the fraudulent use of a computer or computer network to transmit unsolicited bulk e-mail. It would also prohibit the sale, distribution or possession of software designed to facilitate the falsification of information concerning the transmission of e-mail. Criminal penalties are provided for, with enhanced damages based on the volume of e-mail transmitted, or the amount of revenue generated in violation of the act.
S.B. 2360
This bill would prohibit a person from transmitting a commercial electronic mail (e-mail) message that uses a third party's Internet domain name without permission or a message that contains false or misleading information. It would prohibit a person from transmitting an unsolicited commercial e-mail message without the use of the characters "ADV:" in the subject line or without providing a mechanism allowing recipients to easily remove themselves from the sender's electronic mailing address list at no cost. This bill provides damages and an award for attorney's fees and costs to an injured party for violation of the act. It provides the electronic mail service provider immunity from liability. The bill also provides an injured electronic mail service provider an award of attorney's fees and costs and, in lieu of actual damages, if the provider so chooses, the greater of $10 for each unsolicited commercial electronic mail message transmitted or $25,000 per day.
S.B. 2574
Signed by Governor, 5/25/04
The bill would prohibit a person from initiating or assisting in the initiation of unsolicited commercial e-mail under certain circumstances. It would authorize ISPs to block unsolicited commercial e-mail and authorize the Department of Legal Affairs to enforce the act. It would provide a cause of action for people receiving or retransmitting such e-mail, providing for declaratory and injunctive relief, as well as compensatory damages and attorney’s fees. Further, it would make persons outside of the state subject to Florida jurisdiction under specified circumstances.
GEORGIA
H.B. 1424
This bill would prohibit any person from using a computer or computer network to intentionally falsify or forge e-mail transmission information or other routing information in connection with the transmission of bulk unsolicited e-mail through or into the computer network of an e-mail service provider or its subscribers. This bill would also prohibit the sale, distribution or possession of software that is primarily designed to facilitate this practice. Contingent on meeting certain volume or revenue thresholds, a violation would be a felony punishable by up to five years and a fine of $50,000. Additional penalties for knowingly hiring, employing, using or permitting a minor to assist in the transmission of bulk unsolicited e-mails.
H.B. 1809
This bill would create a child protection registry of "Contact Points," e.g. e-mail addresses, telephone numbers, or fax numbers that belong to a minor, or a minor has access to. Any person sending advertising to a registered Contact Point that a minor is prohibited by law from purchasing, or that is statutorily defined as harmful to minors, is guilty of a computer crime, and subject to civil liability.
HAWAII
H.B. 1834
Establishes that unpermitted or misleading electronic mail is prohibited and constitutes an unfair trade practice; provides for damages; establishes immunity from liability for interactive computer services.
H.B. 1910
Establishes that unpermitted or misleading electronic mail is prohibited and constitutes an unfair trade practice; provides for damages; establishes immunity from liability for interactive computer services.
S.B. 2703
Prohibits transmission of unsolicited commercial email from or to a Hawaii email address, and related acts. Allows recipient of email received pursuant to prior/current business relationship to opt-out. Bans misleading headers and subject.
ILLINOIS
H.B. 4171
Amends the Illinois Procurement Code. Requires that electronic mail service provided under State contracts must be provided reasonably free of unsolicited electronic mail advertisements (sometimes known as "spam").
House Amendment No. 1
Deletes everything and reinserts the provisions of the introduced bill with the following change: requires that the service provider take measures reasonably designed to provide service free of spam (now, requires that the service be provided reasonably free of spam).
KANSAS
S.B. 517
Adds definitions and additional prohibited activities related to computer virus transmission in the Commercial Electronic Mail Act. In addition, the bill would make violations of the act a criminal offense.
KENTUCKY
H.B. 64
Makes initiating or advertising in unsolicited commercial e-mail advertisements from Kentucky or sent to a Kentucky e-mail address unlawful. Establishes a cause of action for violations of the act and provides a remedy for a recipient of an unsolicited commercial e-mail advertisement.
LOUISIANA
S.B. 116
This bill allows residential or business Internet electronic mail subscribers to be placed on a "no junk mail" listing, which indicates that the subscriber does not wish to receive electronic mail solicitations. Requires the subscriber to notify the Public Service Commission (PSC) of his wish to be placed on the listing and requires a $5 initial listing fee, renewable every five years. Exempts certain e-mail solicitations, such as those which the subscriber has requested, as well as those related to debt collection, non-profit organizations, marketing research, and political activity.
MAINE
LD 255
Restricts unsolicited commercial e-mail, defined as e-mail that is sent for the purpose of advertising or conveying information about real property, goods or services or extending credit or soliciting contributions, by requiring the e-mail to contain a valid return e-mail address maintained by the sender to which the recipient may respond indicating that the recipient does not wish to receive further unsolicited commercial e-mail from the sender. The restriction does not apply to e-mail sent to persons with whom the sender has a prior relationship or who have requested the information from the sender. Unsolicited commercial e-mail would need to include in the subject line a label, as specified, so that recipients are made aware of the nature of the e-mail. Each unsolicited commercial e-mail sent to a recipient in violation is considered an unfair trade practice.
L.D. 1188
Makes "computer trespass" a crime. "Computer trespass" is defined as using a computer or computer network without authority and with the intent to disable or damage computer software, data, or programs; to make an unauthorized copy of computer software, data or programs; to falsify e-mail transmission information in connection with unsolicited bulk e-mail; or to possess with the intent to distribute software designed to facilitate the falsification of e-mail transmission information. Creates civil relief when a person or person's property is damaged by computer trespass.
L.D. 1360
Restricts unsolicited commercial e-mail, defined as e-mail that is sent for the purpose of advertising or conveying information about real property, goods or services or extending credit or soliciting contributions, by requiring the e-mail to contain a valid toll-free telephone number, physical postal address and a return e-mail address maintained by the sender to which the recipient may respond indicating that the recipient does not wish to receive further unsolicited commercial e-mail from the sender. The restriction does not apply to e-mail sent to persons with whom the sender has a prior relationship or who have requested the information from the sender. Unsolicited commercial e-mail would need to include in the subject line a label, as specified, so that recipients are made aware of the nature of the e-mail. Each unsolicited commercial e-mail sent to a recipient in violation is considered an unfair trade practice.
MASSACHUSETTS
H.B. 3326
This bill would prohibit intra-state unsolicited commercial electronic mail messages.
MARYLAND
H.B. 196
Prohibits a person from initiating, conspiring to initiate, or assisting in the transmission of unsolicited sexually explicit commercial electronic mail that does not include in the subject line "ADV:ADULT" as the first nine characters; prohibiting a specified person from manipulating an individual's computer to display a pop-up advertisement under specified circumstances; etc.
H.B. 1320
Vetoed by Governor
Prohibits a person from using specified protected computers to relay or retransmit commercial electronic mail messages with the intent to deceive or mislead recipients or an Internet service provider under specified circumstances; prohibiting a person from materially falsifying header information in commercial electronic mail messages under specified circumstances; prohibiting a person from registering for electronic mail accounts or domain names under specified circumstances; etc.
S.B. 278
Prohibits a person from initiating, conspiring to initiate, or assisting in the transmission of unsolicited sexually explicit commercial electronic mail that does not include in the subject line "ADV:ADULT" as the first nine characters; prohibiting a specified person from manipulating an individual's computer to display a pop-up advertisement under specified circumstances; etc.
S.B. 604
Signed by Governor, 5/27/04
Prohibits a person from using protected computers to relay or retransmit commercial electronic mail messages with the intent to deceive or mislead recipients or an Internet service provider under specified circumstances; prohibiting a person from falsifying header information in commercial electronic mail messages under specified circumstances; prohibiting a person from registering for electronic mail accounts or domain names under specified circumstances; providing specified penalties and fines; etc.
MICHIGAN
H.B. 5663
This bill would create a child protection registry, prohibiting the sending of certain communications to registered contact points. It would proscribe the powers and duties of certain state agencies and officials and provide for penalties and remedies.
S.B. 1025
Signed by Governor, July 21, 2004
This bill would create a child protection registry, prohibiting the sending of certain communications to registered contact points. It would proscribe the powers and duties of certain state agencies and officials and provide for penalties and remedies.
MISSISSIPPI
H.B. 491
Prohibits the use of computers with the intent to falsify or forge electronic mail transmission informatio nor other routing information or the sale or distribution of software for such purposes.
H.B. 123
An act to prohibit the use of computers with the intent to falsify or forge electronic mail transmission information or other routing information or the sale or distribution of software for such purposes; to provide penalties for violations; and for related purposes.
NEBRASKA
L.B. 901
Provides criminal statutes to cover the actions of persons who intentionally falsify or forge certain information related to electronic mail or who sell or otherwise distribute software for such purposes.
LB 901 also provides that commercial electronic mail message has the same meaning as in the federal CAN-SPAM Act of 2003, as such act existed on the effective date of LB 901.
L.B. 1236
Adds two provisions to Nebraska’s Computer Crimes Act that would serve to curb the proliferation of unsolicited, bulk electronic mail, commonly known as Spam. The provisions offered through LB 1236 are complimentary to the Federal Can-Spam law passed late last year. LB1236 includes prohibitions against false or forged e-mail transmission or routing information and also prohibits the sale or distribution of software that is primarily designed to allow falsification of e-mail transmission or routing information. All money or income generated by a violation of LB 1236 or all personal property used to violate the provisions of the bill can be seized by the state. Proceeds go to the permanent school fund.
NEW HAMPSHIRE
S.B. 313
This bill prohibits unsolicited commercial electronic mail advertising unless the recipient consents or has a business relationship with the sender.
NEW JERSEY
A.B. 2030
Establishes certain penalties for transmission of unsolicited commercial electronic mail. Criminalizes: (1) the use of false or forged electronic mail information or other routing information in the transmission of unsolicited commercial electronic mail; and (2) the distribution of software designed primarily for falsification of electronic mail transmission information or other routing information. In addition, the bill would provide that the assets of a person convicted of transmitting large quantities of unsolicited commercial electronic mail involving falsification of electronic mail transmission information or other routing information may be seized by the authorities. This bill would also permit any electronic mail service provider, Internet service provider or registered user, damaged in business or property or who suffers any type of loss as a result of transmission of unsolicited commercial electronic mail, to bring the appropriate action in the Superior Court of New Jersey for actual damages, or $50 for each transmission of unsolicited commercial electronic mail, as well as injunctive relief, reasonable attorney's fees and costs, or such other equitable relief. This bill would also permit a registered user who is the recipient of unsolicited commercial electronic mail, to file a formal complaint to the Attorney General of the State of New Jersey seeking an award of damages.
S.B. 1037
Prohibits transmission of false or deceptive unsolicited commercial electronic mail messages. This bill would prohibit the sender of a commercial electronic mail message over the Internet and who is doing business in this State, from initiating, procuring, or causing to initiate or procure to a recipient located in this State, a commercial electronic mail message which contains in any portion of the domain name, header information, electronic mail address, electronic mail message, or in any information attached thereto, any fraudulent or deceptive information.
NEW YORK
A.B. 5153
Makes unsolicited electronic mail advertising unlawful unless certain information is provided by the sender, including the sender`s name and street and e-mail address; prohibits sale, lease or exchange of certain personal identifying information obtained online without the knowledge and affirmative consent of the consumer; makes provisions for penalties for violations.
A.B. 9582
Amends the General Business Law by adding a new article 28-E which states, "No person shall transmit or cause to be transmitted an unsolicited commercial text message to a wireless telephone number that the person knows or has reason to know is held by a resident of the state." Noncompliance of this article is in defiance of the law, and the court may impose a civil penalty of not more than five hundred dollars for each unsolicited text message transmitted to a resident of New York State.
A.B. 9597
Prohibits the transmission of unsolicited advertising text messages to cellular telephones or pagers; makes an exception for providers of such services and their affiliates who have permission; provides for enforcement by the attorney general and a private right of action.
S.B. 1680
Enacts the "unsolicited commercial electronic mail regulation act"; regulates the transmission of unsolicited commercial electronic mail advertising to require certain information to be included therein and requiring termination of such transmissions upon the request of the recipient thereof; provides for civil remedies for noncompliance.
OHIO
H.B. 383
Signed by Governor, 2/1/05
Prohibits a person from transmitting multiple electronic mail advertisements, falsifying the originating address or other routing information in multiple electronic mail advertisements, or falsifying registration information for multiple electronic mail accounts, and to prohibit unauthorized access to a public computer to transmit multiple electronic mail advertisements.
OKLAHOMA
H.B. 2215
Relates to commercial mail messages; requiring senders of unsolicited commercial electronic mail messages to provide an automatic return electronic mail mechanism; and providing an effective date.
PENNSYLVANIA
S.B. 885
Amends current law prohibiting certain facsimiles, commercial electronic transmissions and the use of text, or graphic or image messaging systems of wireless telephone systems to transmit unsolicited commercial messages. Authorizes the blocking of commercial electronic mail by interactive computer service; and provides for the powers of the Attorney General in establishing a statewide do-not-e-mail list.
H.B. 2426
This bill amends a prior Act to further prohibit unsolicited or misleading commercial or electronic mail messages or facsimiles.
TENNESSEE
H.B. 1208
The Tennessee regulatory authority (TRA) maintains a "do not call" registry for state residents who do not wish to receive telephone calls from telemarketers. This bill would establish similar provisions for unsolicited e-mail. This bill would require the TRA to establish, by July 1, 2004, a state database to compile a list of e-mail addresses for subscribers who object to unsolicited e-mail. The information in such database would only be used for compliance with this bill and would not be considered public record. After July 1, 2004, it would be a violation of state law to transmit unsolicited e-mail to any subscriber in Tennessee who has given notice to the TRA that such subscriber objects to such e-mail.
H.B. 3469
Replaces present law provisions governing spam (unsolicited e-mail) and replaces it with provisions that mirror the CAN-SPAM Act passed by Congress in 2003. This bill would require the Tennessee Regulatory Authority (TRA) to enforce the provisions of this bill and to create rules and regulations to effectuate its purpose. This bill would be enforced by the TRA as if a violation were an unfair or deceptive trade practice under the Consumer Protection Act.
S.B. 2343
Replaces present law provisions governing spam (unsolicited e-mail) and replaces it with provisions that mirror the CAN-SPAM Act passed by Congress in 2003. This bill would require the Tennessee Regulatory Authority (TRA) to enforce the provisions of this bill and to create rules and regulations to effectuate its purpose. This bill would be enforced by the TRA as if a violation were an unfair or deceptive trade practice under the Consumer Protection Act.
S.B. 3186
Prohibits transmission of unsolicited facsimile advertisements; requires any facsimile transmission to include on top or bottom of page margins the identification of the sender and the telephone number of the sending machine or sending party.
UTAH
H.B. 165
Signed by Governor, 3/23/04
This bill requires the Division of Consumer Protection to establish a registry of contact points for minors. A "contact point" is an e-mail address, a telephone number, fax number or other electronic address that is either owned by or is available to a minor, including the domain name of a school or other institution that primarily serves minors. This bill prohibits a person from sending materials to a registered contact point, that advertises a product or service that a minor is prohibited by law from purchasing, or contains or advertises material that is statutorily defined as harmful to minors. The consent of a minor is not a defense to a violation of this section. Criminal, civil and administrative remedies are created.
S.B. 92
Signed by Governor, 3/23/04
Modifies provisions of the Commerce and Trade Code dealing with unsolicited commercial and sexually explicit email.
VERMONT
S.B. 233
Prohibits a person or entity located in Vermont from initiating or advertising in unsolicited commercial e-mail advertisements. Prohibits a person or entity not located in Vermont from initiating or advertising in unsolicited commercial e-mail advertisements sent to a Vermont e-mail address. Prohibits a person or entity from collecting e-mail addresses or registering multiple e-mail addresses for the purpose of initiating or advertising in an unsolicited commercial e-mail advertisement from Vermont or to a Vermont e-mail address. Prohibits a person or entity from using a commercial e-mail advertisement containing certain falsified, misrepresented, obscured, or misleading information.
WASHINGTON
H.B. 1287
Provides that district courts have jurisdiction over actions arising from violations of the unlawful commercial e-mail laws. The action may be brought in cases of a nonresident defendant in a district where service of process may be had, where the cause of action arose, or where one of the plaintiffs resides.
S.B. 6176
Declares that, notwithstanding any other provisions of law, a person may not do any of the following: (1) Initiate or advertise in unsolicited commercial electronic mail from Washington or advertise in unsolicited electronic mail sent from Washington; (2) Initiate or advertise in unsolicited commercial electronic mail to a Washington electronic mail address, or advertise in unsolicited commercial electronic mail sent to a Washington electronic mail address. Declares that it is unlawful for any person to collect electronic mail addresses posted on the internet if the purpose of the collection is for the electronic mail addresses to be used to do either of the following: (1) Initiate or advertise in unsolicited commercial electronic mail from Washington, or advertise in unsolicited commercial electronic mail sent from Washington; or (2) Initiate or advertise in unsolicited commercial electronic mail to a Washington electronic mail address, or advertise in unsolicited commercial electronic mail sent to a Washington electronic mail address. Declares that it is unlawful for any person to use an electronic mail address obtained by using automated means based on a combination of names, letters, or numbers to do either of the above prohibited practices. Declares that it is unlawful for any person to use scripts or other automated means to register for multiple electronic mail accounts from which to do, or to enable another person to do, either of the above prohibited practices.
WEST VIRGINIA
H.B. 2537
Prohibits the transmission of an unsolicited electronic mail message, or a bulk electronic mail message from a computer located in the state of West Virginia or to an electronic mail address that the sender knows, or has reason to know, is held by a West Virginia resident. Any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined no less than three hundred dollars nor more than six hundred dollars.
H.B. 4710
This bill would amend and reenact the Electronic Mail Protection Act and to add additional sections to that Act defining additional terms, and providing additional prohibitions and penalties relative to the dissemination of spam on the internet.
 Unsolicited Commercial E-mail Home
|
