SF 927

1st Engrossment - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to commerce; regulating false and deceptive 
  1.3             commercial electronic mail messages; prescribing 
  1.4             criminal penalties; providing remedies; proposing 
  1.5             coding for new law in Minnesota Statutes, chapter 325F.
  1.6   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.7      Section 1.  [325F.696] [DEFINITIONS.] 
  1.8      Subdivision 1.  [SCOPE.] For the purposes of sections 
  1.9   325F.696 to 325F.6991, the terms in this section have the 
  1.10  meanings given them. 
  1.11     Subd. 2.  [COMMERCIAL ELECTRONIC MAIL MESSAGE.] "Commercial 
  1.12  electronic mail message" means any electronic mail message, the 
  1.13  primary purpose of which is the commercial advertisement or 
  1.14  promotion of a commercial product or service, including content 
  1.15  on an Internet Web site operated for a commercial purpose, but 
  1.16  does not include a transactional or relationship message.  The 
  1.17  inclusion of a reference to a commercial entity or a link to the 
  1.18  Web site of a commercial entity does not, by itself, cause that 
  1.19  message to be treated as a commercial electronic mail message 
  1.20  for the purpose of this section if the contents or circumstances 
  1.21  of the message indicate a primary purpose other than commercial 
  1.22  advertisement or promotion of a commercial product or service. 
  1.23     Subd. 3.  [COMPUTER.] "Computer" means an electronic device 
  1.24  that performs logical, arithmetic, and memory functions by the 
  1.25  manipulation of electronic or magnetic impulses.  "Computer" 
  2.1   includes, but is not limited to, all input, output, processing, 
  2.2   storage, computer program, or communication facilities that are 
  2.3   connected or related in a computer system or network to an 
  2.4   electronic device of that nature. 
  2.5      Subd. 4.  [COMPUTER NETWORK.] "Computer network" means a 
  2.6   set of related and remotely connected computers and 
  2.7   communication facilities that includes more than one computer 
  2.8   system that has the capability to transmit among the connected 
  2.9   computers and communication facilities through the use of 
  2.10  computer facilities. 
  2.11     Subd. 5.  [COMPUTER SYSTEM.] "Computer system" means a 
  2.12  computer and related devices, whether connected or unconnected, 
  2.13  including, but not limited to, data input, output, and storage 
  2.14  devices, data communication links, and computer programs and 
  2.15  data that make the system capable of performing specified 
  2.16  special purpose data processing tasks. 
  2.17     Subd. 6.  [DOMAIN NAME.] "Domain name" means any 
  2.18  alphanumeric designation that is registered with or assigned by 
  2.19  any domain name registrar, domain name registry, or other domain 
  2.20  name registration authority as part of an electronic address on 
  2.21  the Internet. 
  2.22     Subd. 7.  [ELECTRONIC MAIL.] "Electronic mail" means an 
  2.23  electronic message that is transmitted between two or more 
  2.24  telecommunications devices or electronic devices capable of 
  2.25  receiving electronic messages, whether or not the message is 
  2.26  converted to hard copy format after receipt, and whether or not 
  2.27  the message is viewed upon the transmission or stored for later 
  2.28  retrieval.  "Electronic mail" includes electronic messages that 
  2.29  are transmitted through a local, regional, or global computer 
  2.30  network. 
  2.31     Subd. 8.  [ORIGINATING ADDRESS.] "Originating address" 
  2.32  means the string of characters used to specify the source of any 
  2.33  electronic mail message. 
  2.34     Subd. 9.  [RECEIVING ADDRESS.] "Receiving address" means 
  2.35  the string of characters used to specify a recipient with each 
  2.36  receiving address creating a unique and separate recipient. 
  3.1      Subd. 10.  [ELECTRONIC MAIL MESSAGE.] "Electronic mail 
  3.2   message" means each electronic mail addressed to a discrete 
  3.3   addressee. 
  3.4      Subd. 11.  [ELECTRONIC MAIL SERVICE PROVIDER.] "Electronic 
  3.5   mail service provider" means any person, including an Internet 
  3.6   service provider, that is an intermediary in sending and 
  3.7   receiving electronic mail and that provides to the public 
  3.8   electronic mail accounts or online user accounts from which 
  3.9   electronic mail may be sent. 
  3.10     Subd. 12.  [HEADER INFORMATION.] "Header information" means 
  3.11  the source, destination, and routing information attached to an 
  3.12  electronic mail message, including the originating domain name, 
  3.13  originating address, and technical information that 
  3.14  authenticates the sender of an electronic mail message for 
  3.15  computer network security or computer network management 
  3.16  purposes. 
  3.17     Subd. 13.  [INITIATE THE TRANSMISSION; 
  3.18  INITIATED.] "Initiate the transmission" or "initiated" means to 
  3.19  originate or transmit a commercial electronic mail message or to 
  3.20  procure the origination or transmission of that message, 
  3.21  regardless of whether the message reaches its intended 
  3.22  recipients, but does not include actions that constitute routine 
  3.23  conveyance of the message. 
  3.24     Subd. 14.  [INTERNET.] "Internet" means collectively the 
  3.25  myriad of computer and telecommunications facilities, including 
  3.26  equipment and operating software, which comprise the 
  3.27  interconnected worldwide network of networks that employ the 
  3.28  Transmission Control Protocol/Internet Protocol, or any 
  3.29  predecessor or successor protocols to this protocol, to 
  3.30  communication information of all kinds by wire or radio. 
  3.31     Subd. 15.  [INTERNET PROTOCOL ADDRESS.] "Internet protocol 
  3.32  address" means the string of numbers by which locations on the 
  3.33  Internet are identified by routers or other computers connected 
  3.34  to the Internet. 
  3.35     Subd. 16.  [MATERIALLY FALSIFY.] "Materially falsify" means 
  3.36  to alter or conceal in a manner that would impair the ability of 
  4.1   a recipient of an electronic mail message, an electronic mail 
  4.2   service provider processing an electronic mail message on behalf 
  4.3   of a recipient, a person alleging a violation of section 
  4.4   325F.697, or a law enforcement agency to identify, locate, or 
  4.5   respond to the person that initiated the electronic mail message 
  4.6   or to investigate an alleged violation of this section. 
  4.7      Subd. 17.  [MULTIPLE.] "Multiple" means more than ten 
  4.8   commercial electronic mail messages during a 24-hour period, 
  4.9   more than 100 commercial electronic mail messages during a 
  4.10  30-day period, or more than 1,000 commercial electronic mail 
  4.11  messages during a one-year period. 
  4.12     Subd. 18.  [RECIPIENT.] "Recipient" means a person who 
  4.13  receives a commercial electronic mail message at any one of the 
  4.14  following receiving addresses: 
  4.15     (1) a receiving address furnished by an electronic mail 
  4.16  service provider that bills for furnishing and maintaining that 
  4.17  receiving address to a mailing address within this state; 
  4.18     (2) a receiving address ordinarily accessed from a computer 
  4.19  located within this state or by a person domiciled within this 
  4.20  state; or 
  4.21     (3) any other receiving address with respect to which this 
  4.22  section can be imposed consistent with the United States 
  4.23  Constitution. 
  4.24     Subd. 19.  [ROUTINE CONVEYANCE.] "Routine conveyance" means 
  4.25  the transmission, routing, relaying, handling, or storing, 
  4.26  through an automated technical process, of an electronic mail 
  4.27  message for which another person has identified the recipients 
  4.28  or provided the recipient addresses. 
  4.29     Subd. 20.  [TRANSACTIONAL OR RELATIONSHIP 
  4.30  MESSAGE.] "Transactional or relationship message" means an 
  4.31  electronic mail message the primary purpose of which is to do 
  4.32  any of the following: 
  4.33     (1) facilitate, complete, or confirm a commercial 
  4.34  transaction that the recipient has previously agreed to enter 
  4.35  into with the sender; 
  4.36     (2) provide warranty information, product recall 
  5.1   information, or safety or security information with respect to a 
  5.2   commercial product or service used or purchased by the 
  5.3   recipient; 
  5.4      (3) provide notification concerning a change in the terms 
  5.5   or features of; a change in the recipient's standing or status 
  5.6   with respect to; or, at regular periodic intervals, account 
  5.7   balance information or other type of account statement with 
  5.8   respect to a subscription, membership, account, loan, or 
  5.9   comparable ongoing commercial relationship involving the ongoing 
  5.10  purchase or use by the recipient of products or services offered 
  5.11  by the sender; 
  5.12     (4) provide information directly related to an employment 
  5.13  relationship or related benefit plan in which the recipient is 
  5.14  currently involved, participating, or enrolled; or 
  5.15     (5) deliver goods or services, including product updates or 
  5.16  upgrades, that the recipient is entitled to receive under the 
  5.17  terms of a transaction that the recipient has previously agreed 
  5.18  to enter into with the sender. 
  5.19     Sec. 2.  [325F.697] [FALSE, MISLEADING, OR DECEPTIVE 
  5.20  COMMERCIAL ELECTRONIC MAIL MESSAGES PROHIBITED.] 
  5.21     No person, with regard to commercial electronic mail 
  5.22  messages sent from or to a computer in this state, shall do any 
  5.23  of the following: 
  5.24     (1) knowingly use a computer to relay or retransmit 
  5.25  multiple commercial electronic mail messages, with the intent to 
  5.26  deceive or mislead recipients or any electronic mail service 
  5.27  provider, as to the origin of those messages; 
  5.28     (2) knowingly and materially falsify header information in 
  5.29  multiple commercial electronic mail messages and purposely 
  5.30  initiate the transmission of those messages; 
  5.31     (3) knowingly register, using information that materially 
  5.32  falsifies the identity of the actual registrant, for five or 
  5.33  more electronic mail accounts or online user accounts or two or 
  5.34  more domain names and purposely initiate the transmission of 
  5.35  multiple commercial electronic mail messages from one, or any 
  5.36  combination, of those accounts or domain names; 
  6.1      (4) knowingly falsely represent the right to use five or 
  6.2   more Internet protocol addresses and purposely initiate the 
  6.3   transmission of multiple commercial electronic mail messages 
  6.4   from those addresses. 
  6.5      Sec. 3.  [325F.698] [ILLEGAL TRANSMISSION OF MULTIPLE 
  6.6   MESSAGES; CRIMINAL PENALTIES.] 
  6.7      (a) Whoever violates section 325F.697 is guilty of 
  6.8   illegally transmitting multiple commercial electronic mail 
  6.9   messages.  Except as otherwise provided in paragraph (b) or 
  6.10  section 325F.699, subdivision 3, illegally transmitting multiple 
  6.11  commercial electronic mail messages is a misdemeanor. 
  6.12     (b) Illegally transmitting multiple commercial electronic 
  6.13  mail messages is a gross misdemeanor if any of the following 
  6.14  apply: 
  6.15     (1) regarding a violation of section 325F.697, clause (3), 
  6.16  the offender, using information that materially falsifies the 
  6.17  identity of the actual registrant, knowingly registers for 20 or 
  6.18  more electronic mail accounts or online user accounts or ten or 
  6.19  more domain names, and purposely initiates, or conspires to 
  6.20  initiate, the transmission of multiple commercial electronic 
  6.21  mail messages from the accounts or domain names; 
  6.22     (2) regarding any violation of section 325F.697, the volume 
  6.23  of commercial electronic mail messages the offender transmitted 
  6.24  in committing the violation exceeds 250 during any 24-hour 
  6.25  period, 2,500 during any 30-day period, or 25,000 during any 
  6.26  one-year period; 
  6.27     (3) regarding any violation of section 325F.697, during any 
  6.28  one-year period the aggregate loss to the victim or victims of 
  6.29  the violation is $500 or more, or during any one-year period the 
  6.30  aggregate value of the property or services obtained by any 
  6.31  offender as a result of the violation is $500 or more; 
  6.32     (4) regarding any violation of section 325F.697, the 
  6.33  offender committed the violation with three or more other 
  6.34  persons with respect to whom the offender was the organizer or 
  6.35  leader of the activity that resulted in the violation; 
  6.36     (5) regarding any violation of section 325F.697, the 
  7.1   offender knowingly assisted in the violation through the 
  7.2   provision or selection of electronic mail addresses to which the 
  7.3   commercial electronic mail message was transmitted, if that 
  7.4   offender knew that the electronic mail addresses of the 
  7.5   recipients were obtained using an automated means from an 
  7.6   Internet Web site or proprietary online service operated by 
  7.7   another person, and that Web site or online service included, at 
  7.8   the time the electronic mail addresses were obtained, a notice 
  7.9   stating that the operator of that Web site or online service 
  7.10  will not transfer addresses maintained by that Web site or 
  7.11  online service to any other party for the purposes of initiating 
  7.12  the transmission of, or enabling others to initiate the 
  7.13  transmission of, electronic mail messages; or 
  7.14     (6) regarding any violation of section 325F.697, the 
  7.15  offender knowingly assisted in the violation through the 
  7.16  provision or selection of electronic mail addresses of the 
  7.17  recipients obtained using an automated means that generates 
  7.18  possible electronic mail addresses by combining names, letters, 
  7.19  or numbers into numerous permutations. 
  7.20     Sec. 4.  [325F.699] [UNAUTHORIZED ACCESS TO A COMPUTER; 
  7.21  CRIMINAL PENALTIES.] 
  7.22     Subdivision 1.  [PROHIBITION.] No person, with regard to 
  7.23  commercial electronic mail messages sent from or to a computer 
  7.24  in this state, shall knowingly access a computer without 
  7.25  authorization and purposely initiate the transmission of 
  7.26  multiple commercial electronic mail messages from or through the 
  7.27  computer. 
  7.28     Subd. 2.  [GROSS MISDEMEANOR.] Except as otherwise provided 
  7.29  in subdivision 3, whoever violates subdivision 1 is guilty of 
  7.30  unauthorized access of a computer, a gross misdemeanor. 
  7.31     Subd. 3.  [FELONY.] Illegally transmitting multiple 
  7.32  commercial electronic mail messages and unauthorized access of a 
  7.33  computer in violation of this section are felonies if the 
  7.34  offender previously has been convicted of a violation of this 
  7.35  section, or a violation of a law of another state or the United 
  7.36  States regarding the transmission of electronic mail messages or 
  8.1   unauthorized access to a computer, or if the offender committed 
  8.2   the violation of this section in the furtherance of a felony. 
  8.3      Sec. 5.  [325F.6991] [CIVIL ACTIONS.] 
  8.4      (a) The attorney general or an electronic mail service 
  8.5   provider that is injured by a violation of section 325F.697 may 
  8.6   bring a civil action in district court seeking relief from any 
  8.7   person whose conduct violated section 325F.697.  The civil 
  8.8   action may be commenced at any time within one year of the date 
  8.9   after the act that is the basis of the civil action. 
  8.10     (b) In a civil action brought by the attorney general for a 
  8.11  violation of section 325F.697, the court may award temporary, 
  8.12  preliminary, or permanent injunctive relief.  The court also may 
  8.13  impose a civil penalty against the offender, as the court 
  8.14  considers just, in an amount that is the lesser of:  (1) $25,000 
  8.15  for each day a violation occurs; or (2) not less than $2 but not 
  8.16  more than $8 for each commercial electronic mail message 
  8.17  initiated in violation of this section. 
  8.18     (c) In a civil action brought by an electronic mail service 
  8.19  provider for a violation of section 325F.697, the court may 
  8.20  award temporary, preliminary, or permanent injunctive relief, 
  8.21  and also may award damages in an amount equal to the greater of 
  8.22  the following:  
  8.23     (1) the sum of the actual damages incurred by the 
  8.24  electronic mail service provider as a result of a violation of 
  8.25  section 325F.697, plus any receipts of the offender that are 
  8.26  attributable to a violation of this section and that were not 
  8.27  taken into account in computing actual damages; 
  8.28     (2) statutory damages, as the court considers just, in an 
  8.29  amount that is the lesser of:  (i) $25,000 for each day a 
  8.30  violation occurs; or (ii) not less than $2 but not more than $8 
  8.31  for each commercial electronic mail message initiated in 
  8.32  violation of section 325F.697. 
  8.33     (d) In assessing damages, the court may consider whether 
  8.34  the offender has established and implemented, with due care, 
  8.35  commercially reasonable practices and procedures designed to 
  8.36  effectively prevent the violation, or the violation occurred 
  9.1   despite commercially reasonable efforts to maintain the 
  9.2   practices and procedures established. 
  9.3      (e) Equipment, software, or other technology of a person 
  9.4   who violates this section that is used or intended to be used in 
  9.5   the commission of a violation of section 325F.697, and any real 
  9.6   or personal property that constitutes or is traceable to the 
  9.7   gross proceeds obtained from the commission of a violation of 
  9.8   section 325F.697, is contraband and is subject to seizure and 
  9.9   forfeiture pursuant to section 609.531. 
  9.10     (f) The attorney general may bring a civil action, pursuant 
  9.11  to the "CAN-SPAM Act of 2003," Public Law 108-187, 117 Stat. 
  9.12  2699, United States Code, title 15, section 7701 et seq., on 
  9.13  behalf of the residents of the state in a district court of the 
  9.14  United States that has jurisdiction for a violation of the 
  9.15  CAN-SPAM Act of 2003, but the attorney general shall not bring a 
  9.16  civil action under both this paragraph and paragraph (a).  If a 
  9.17  federal court dismisses a civil action brought under this 
  9.18  section for reasons other than upon the merits, a civil action 
  9.19  may be brought under this section in the appropriate district 
  9.20  court of this state. 
  9.21     (g) Nothing in sections 325F.696 to 325F.6991: 
  9.22     (1) requires an electronic mail service provider to block, 
  9.23  transmit, route, relay, handle, or store certain types of 
  9.24  electronic mail messages; 
  9.25     (2) prevents or limits, in any way, an electronic mail 
  9.26  service provider from adopting a policy regarding electronic 
  9.27  mail, including a policy of declining to transmit certain types 
  9.28  of electronic mail messages or from enforcing such policy 
  9.29  through technical means, through contract, or pursuant to any 
  9.30  remedy available under any other federal, state, or local 
  9.31  criminal or civil law; and 
  9.32     (3) renders lawful any policy adopted under clause (2) that 
  9.33  is unlawful under any other law. 
  9.34     Sec. 6.  [EFFECTIVE DATE; APPLICATION.] 
  9.35     This act is effective August 1, 2005.  Sections 3 and 4 
  9.36  apply to crimes committed on or after that date.