SB2379

Report Title:

Misleading Electronic Mail; Prohibitions

Description:

Adds a new chapter on misleading electronic mail; prohibitions and violations; sets damage amounts.

THE SENATE	S.B. NO.	2379
TWENTY-FIRST LEGISLATURE, 2002
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO ELECTRONIC MAIL.

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

SECTION 1. The legislature finds that in 1998 Washington was the first state to approve legislation aimed at curbing unsolicited commercial bulk electronic mail – popularly known as "spam". Since then, eighteen other states have passed laws that regulate unsolicited electronic mail. Recently, a California appeals court upheld a state "antispam" law protecting consumers from junk electronic mail. In a unanimous ruling, a three-judge panel said that California may require Internet "spammers" to identify electronic mail as advertisements and provide ways for recipients to be removed from electronic mail lists.

The legislature further finds that the Federal Trade Commission testified before the United States Senate Communications Subcommittee in April 2001, in support of federal legislation to limit junk electronic mail by allowing consumers to refuse to receive unsolicited electronic mail and imposing penalties on those who ignore the consumers' choice.

The United States Supreme Court entered the "antispam" arena as well, when it declined in October 2001, to hear a constitutional challenge to the Washington State law. While the Court's refusal to review the case did not offer a legal ruling on the merits of the Washington law, it does mean that beleaguered consumers can continue to fight junk electronic mail at the state level.

The purpose of this Act is to give Hawaii consumers similar protection from unsolicited and misleading electronic mail.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

MISLEADING ELECTRONIC MAIL ACT

§ -1 Definitions. As used in this chapter:

"Assist the transmission" means actions taken by a person to provide substantial assistance or support that enables any person to formulate, compose, send, originate, initiate, or transmit a commercial electronic mail message when the person providing the assistance knows or consciously avoids knowing that the initiator of the commercial electronic mail message is engaged, or intends to engage, in any practice that violates chapter 480.

"Commercial electronic mail message" means an electronic mail message sent for the purpose of promoting real property, goods, or services for sale or lease. It does not include an electronic mail message to which an interactive computer service provider has attached an advertisement in exchange for free use of an electronic mail account, when the sender has agreed to such an arrangement.

"Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.

"Initiate the transmission" refers to the action by the original sender of an electronic mail message, but not the action by any intervening interactive computer service that may handle or retransmit the message, unless the intervening interactive computer service assists in the transmission of an electronic mail message when it knows, or consciously avoids knowing, that the person initiating the transmission is engaged, or intends to engage, in any act or practice that violates chapter 480.

"Interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

"Internet domain name" refers to a globally unique, hierarchical reference to an Internet host or service, assigned through centralized Internet naming authorities, comprising a series of character strings separated by periods, with the right-most string specifying the top of the hierarchy.

"Person" means any individual, corporation, business enterprise, or other legal entity, either public or private.

§ -2 Electronic mail; prohibitions. (a) No person may initiate the transmission, conspire with another to initiate the transmission, or assist the transmission, of a commercial electronic mail message from a computer located in the State or to an electronic mail address that the sender knows, or has reason to know, is held by a Hawaii resident that:

(1) Uses a third party’s Internet domain name without permission of the third party, or otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or

(2) Contains false or misleading information in the subject line.

(b) For the purposes of this section, a person knows that the intended recipient of a commercial electronic mail message is a Hawaii resident if that information is available, upon request, from the registrant of the Internet domain name contained in the recipient’s electronic mail address.

§ -3 Electronic mail; violations. (a) It is a violation of chapter 480 to conspire with another person to initiate the transmission or to initiate the transmission of a commercial electronic mail message that:

(2) Contains false or misleading information in the subject line.

(b) It is a violation of chapter 480 or 481B to assist in the transmission of a commercial electronic mail message, when the person providing the assistance knows, or consciously avoids knowing, that the initiator of the commercial electronic mail message is engaged, or intends to engage, in any act or practice that violates the consumer protection act.

(c) A violation of this chapter is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act or practice in the conduct of any trade or commerce and an unfair method of competition for the purpose of applying chapter 480.

§ -4 Violations; damages. (a) Damages to the recipient of a commercial electronic mail message sent in violation of this chapter shall be $500, or actual damages, whichever is greater.

(b) Damages to an interactive computer service resulting from a violation of this chapter shall be $1,000, or actual damages, whichever is greater.

§ -5 Blocking of commercial electronic mail by interactive computer service; immunity from liability. (a) An interactive computer service, upon its own initiative, may block the receipt or transmission through its service of any commercial electronic mail that it reasonably believes is, or will be, sent in violation of this chapter.

(b) No interactive computer service may be held liable for any action voluntarily taken in good faith to block the receipt or transmission through its service of any commercial electronic mail which it reasonably believes is, or will be, sent in violation of this chapter."

SECTION 3. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________