Senate Bill sb2574er

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  1                                 

  2         An act relating to commercial relations;

  3         creating part III of ch. 668, F.S., relating to

  4         unsolicited commercial electronic mail;

  5         providing a short title; providing legislative

  6         intent; providing definitions relating to

  7         unsolicited commercial electronic mail;

  8         prohibiting a person from initiating or

  9         assisting in the initiation of unsolicited

10         commercial electronic mail under certain

11         circumstances; providing that a provider of

12         Internet access service is not required to

13         undertake certain actions with regard to

14         electronic mail; providing that acts that are

15         otherwise unlawful are not rendered lawful;

16         authorizing the Department of Legal Affairs to

17         enforce the act; authorizing the department and

18         persons receiving or retransmitting unsolicited

19         electronic mail to bring an action against

20         persons transmitting that mail; providing for

21         declaratory and injunctive relief, compensatory

22         damages, and attorney's fees; declaring that

23         persons outside this state are subject to the

24         jurisdiction of this state's courts under

25         specified circumstances; providing a

26         statute-of-limitations period; providing that a

27         violation of the act is an unfair and deceptive

28         trade practice; providing for severability;

29         providing an effective date.

30  

31  Be It Enacted by the Legislature of the State of Florida:


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 1         Section 1.  Part III of chapter 668, Florida Statutes,

 2  consisting of sections 668.60, 668.601, 668.602, 668.603,

 3  668.604, 668.605, 668.606, and 668.6075, is created to read:

 4         668.60  Short title; application.--This part may be

 5  known by the popular name of the "Electronic Mail

 6  Communications Act." Except as otherwise provided, this part

 7  applies to unsolicited commercial electronic mail.

 8         668.601  Legislative intent.--This part is intended to

 9  promote the integrity of electronic commerce and shall be

10  construed liberally in order to protect the public and

11  legitimate businesses from deceptive and unsolicited

12  commercial electronic mail.

13         668.602  Definitions.--As used in this part, the term:

14         (1)  "Affirmative consent" means that the recipient of

15  electronic mail expressly consented to receive the message

16  either in response to a clear and conspicuous request for the

17  recipient's consent or at the recipient's own initiative. A

18  recipient is deemed to have given affirmative consent if the

19  electronic mail message is from a person other than the person

20  to whom the recipient directly communicated consent if clear

21  and conspicuous notice was given to the recipient that the

22  recipient's electronic mail address could be transferred to

23  another person for the purpose of that person initiating the

24  transmission of a commercial electronic mail message to the

25  recipient.

26         (2)  "Assist in the transmission" means to provide

27  substantial assistance or support that enables a person to

28  formulate, compose, send, originate, initiate, or transmit a

29  commercial electronic mail message when the person providing

30  the assistance knows or has reason to know that the initiator

31  of the commercial electronic mail message is engaged in or


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 1  intends to engage in a practice that violates this chapter.

 2  "Assist in the transmission" does not include:

 3         (a)  Actions that constitute routine conveyance of such

 4  message; or

 5         (b)  Activities of any entity related to the design,

 6  manufacture, or distribution of any technology, product, or

 7  component that has a commercially significant use other than

 8  to violate or circumvent this part.

 9         (3)  "Commercial electronic mail message" means an

10  electronic mail message sent to promote the sale or lease of,

11  or investment in, property, goods, or services related to any

12  trade or commerce. This includes any electronic mail message

13  that may interfere with any trade or commerce, including

14  messages that contain computer viruses.

15         (4)  "Computer virus" means a computer program that is

16  designed to replicate itself or affect another program or file

17  in the computer by attaching a copy of the program or other

18  set of instructions to one or more computer programs or files

19  without the consent of the owner or lawful user. The term

20  includes, but is not limited to, programs that are designed to

21  contaminate other computer programs; compromise computer

22  security; consumer computer resources; modify, destroy,

23  record, or transmit data; or disrupt the normal operation of

24  the computer, computer system, or computer network. The term

25  also includes, but is not limited to, programs that are

26  designed to use a computer without the knowledge and consent

27  of the owner or authorized user and to send large quantities

28  of data to a targeted computer network without the consent of

29  the network for the purpose of degrading the targeted

30  computer's or network's performance or for the purpose of

31  


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 1  denying access through the network to the targeted computer or

 2  network.

 3         (5)  "Department" means the Department of Legal

 4  Affairs.

 5         (6)  "Electronic mail address" means a destination,

 6  commonly expressed as a string of characters, to which

 7  electronic mail may be sent or delivered.

 8         (7)  "Electronic mail message" means an electronic

 9  message or computer file that is transmitted between two or

10  more telecommunications devices; computers; computer networks,

11  regardless of whether the network is a local, regional, or

12  global network; or electronic devices capable of receiving

13  electronic messages, regardless of whether the message is

14  converted to hardcopy format after receipt, viewed upon

15  transmission, or stored for later retrieval.

16         (8)  "Initiate the transmission" means the action taken

17  by the original sender with respect to a commercial electronic

18  mail message.

19         (9)  "Interactive computer service" means any

20  information service, system, or access software provider that

21  provides or enables computer access by multiple users to a

22  computer server, including specifically, but not limited to, a

23  service or system that provides access to the Internet and the

24  systems operated or services offered by libraries or

25  educational institutions.

26         (10)  "Internet domain name" means a globally unique,

27  hierarchical reference to an Internet host or service, which

28  is assigned through centralized Internet naming authorities

29  and which is comprised of a series of character strings

30  separated by periods, with the right-most string specifying

31  the top of the hierarchy.


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 1         (11)  "Person" means any individual, group of

 2  individuals, firm, association, corporation, partnership,

 3  joint venture, sole proprietorship, or any other business

 4  entity.

 5         (12)  "Routine conveyance" means the transmission,

 6  routing, relaying, handling, or storing, through an automatic

 7  technical process, of an electronic mail message for which

 8  another person has identified the recipients or provided the

 9  recipient addresses. This does not include any routine

10  conveyance which is deliberately intended to assist persons in

11  violating this part.

12         (13)  "Trade or commerce" means the advertising,

13  soliciting, providing, offering, or distributing, whether by

14  sale, rental, or otherwise, of any goods or service, or any

15  property, whether tangible or intangible, or any other

16  article, commodity, or thing of value, wherever situated.

17         (14)  "Unsolicited commercial electronic mail message"

18  means any commercial electronic mail message that is not a

19  transactional or relationship message and is sent to a

20  recipient without the recipient's affirmative or implied

21  consent.

22         668.603  Prohibited activity.--A person may not:

23         (1)  Initiate or assist in the transmission of an

24  unsolicited commercial electronic mail message from a computer

25  located in this state or to an electronic mail address that is

26  held by a resident of this state which:

27         (a)  Uses a third party's Internet domain name without

28  permission of the third party;

29         (b)  Contains falsified or missing routing information

30  or otherwise misrepresents, falsifies, or obscures any

31  information in identifying the point of origin or the


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 1  transmission path of the unsolicited commercial electronic

 2  mail message;

 3         (c)  Contains false or misleading information in the

 4  subject line; or

 5         (d)  Contains false or deceptive information in the

 6  body of the message which is designed and intended to cause

 7  damage to the receiving device of an addressee or of another

 8  recipient of the message. However, this section does not apply

 9  to electronic mail messages resulting from or created by a

10  computer virus which are sent or retransmitted from a computer

11  or other electronic device without the sender's knowledge or

12  consent.

13         (2)  Distribute software or any other system designed

14  to falsify missing routing information identifying the point

15  of origin or the transmission path of the commercial

16  electronic mail message.

17         668.604  Blocking of commercial electronic mail by

18  interactive computer service.--This part does not:

19         (1)  Require a provider of Internet access service to

20  block, transmit, route, relay, handle, or store certain types

21  of electronic mail messages;

22         (2)  Prevent or limit, in any way, a provider of

23  Internet access service from adopting a policy regarding

24  commercial or other electronic mail, including a policy of

25  declining to transmit certain types of electronic mail

26  messages, or from enforcing such policy through technical

27  means, through contract, or pursuant to any remedy available

28  under any other provision of law; or

29         (3)  Render lawful any policy or action that is

30  unlawful under any other provision of law.

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 1         668.605  Confidentiality of intelligence or

 2  investigation information.--This part does not contravene the

 3  provisions of s. 501.2065, which provides for maintaining the

 4  confidential status of certain information.

 5         668.606  Remedies.--

 6         (1)  The department may bring an action for damages or

 7  for declaratory or injunctive relief or may impose a civil

 8  penalty as provided in s. 668.6075. A cause of action, without

 9  regard to any other remedy or relief to which a person is

10  entitled, including the right to seek declaratory and

11  injunctive relief against a person who initiates or assists in

12  the transmission of a commercial electronic mail message that

13  violates, has violated, or is otherwise likely to violate s.

14  668.603, is also available to an interactive computer service,

15  telephone company, or cable provider that handles or

16  retransmits the commercial electronic mail message.

17         (2)  This part does not create a cause of action

18  against an interactive computer service, telephone company, or

19  cable provider whose equipment is used to transport, handle,

20  or retransmit a commercial electronic mail message that

21  violates s. 668.603.

22         (3)  A prevailing plaintiff in an action filed under

23  this part is entitled to:

24         (a)  An injunction to enjoin future violations of s.

25  668.603.

26         (b)  Compensatory damages equal to any actual damage

27  proven by the plaintiff to have resulted from the initiation

28  of the unsolicited commercial electronic mail message or

29  liquidated damages of $500 for each unsolicited commercial

30  electronic mail message that violates s. 668.603.

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 1         (c)  The plaintiff's attorney's fees and other

 2  litigation costs reasonably incurred in connection with the

 3  action.

 4         (4)  Any person outside this state who initiates or

 5  assists in the transmission of a commercial electronic mail

 6  message received in this state which violates s. 668.603 and

 7  who knows, or should have known, that the commercial

 8  electronic mail message will be received in this state submits

 9  to the jurisdiction of this state for purposes of this part.

10         (5)  An action under this section must be commenced

11  within 4 years following the date of any activity prohibited

12  by s. 668.603.

13         668.6075  Violations of s. 668.603.--

14         (1)  A violation of s. 668.603 shall be deemed an

15  unfair and deceptive trade practice within the meaning of part

16  II of chapter 501. In addition to any remedies or penalties

17  set forth in that part, a violator shall be subject to the

18  penalties and remedies provided for in this part.

19         (2)  The remedies of this part are in addition to

20  remedies otherwise available for the same conduct under

21  federal or state law.

22         Section 2.  If any provision of this act or its

23  application to any person or circumstance is held invalid, the

24  invalidity does not affect other provisions or applications of

25  this act which can be given effect without the invalid

26  provision or application, and to this end the provisions of

27  this act are severable.

28         Section 3.  This act shall take effect July 1, 2004.

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