Report Title:

Unsolicited Commercial Email; Ban

Description:

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 lines. Establishes remedies and penalties.

THE SENATE

S.B. NO.

2703

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to COMMERCIAL electronic mail.

 

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

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

commercial electronic mail

§   -1 Definitions. As used in this chapter:

"Advertiser" means a person or entity that advertises through the use of commercial e-mail advertisements.

"Commercial e-mail advertisement" means any electronic mail message initiated for the purpose of advertising or promoting the lease, sale, rental, gift offer, or other disposition of any property, goods, services, or extension of credit.

"Direct consent" means the express consent of a recipient to receive e-mail advertisements from an advertiser, either in response to a clear and conspicuous request for the consent or at the recipient's own initiative.

"Domain name" means any alphanumeric designation that is registered with or assigned by any domain name registrar as part of an electronic address on the Internet.

"Electronic mail" or "e-mail" means an electronic message that is sent to an e-mail address and transmitted between two or more telecommunications devices, computers, or electronic devices capable of receiving electronic messages, whether or not the message is converted to hard copy format after receipt, viewed upon transmission, or stored for later retrieval. "Electronic mail" or "e-mail" includes electronic messages that are transmitted through a local, regional, or global computer network.

"Electronic mail address" or "e-mail address" means a destination, commonly expressed as a string of characters, to which electronic mail can be sent or delivered, that consists of a user name or mailbox and a reference to an Internet domain.

"Electronic mail service provider" means any person, including an Internet service provider, that is an intermediary in sending or receiving electronic mail or that provides to end users of the electronic mail service the ability to send or receive electronic mail.

"Hawaii electronic mail address" or "Hawaii e-mail address" means an e-mail address:

(1) Furnished by an electronic mail service provider that sends its bills for furnishing and maintaining that e-mail address to a mailing address in this State;

(2) Ordinarily accessed from a computer located in this State; or

(3) Furnished to a resident of this State.

"Incident" means a single transmission or delivery to a single recipient or to multiple recipients of unsolicited commercial e-mail advertisement containing substantially similar content.

"Initiate" means to transmit or cause to be transmitted a commercial e-mail advertisement, or to assist in the transmission of a commercial e-mail advertisement by providing electronic mail addresses where the advertisement may be sent. "Initiate" does not include the routine transmission of the advertisement through the network or system of a telecommunications utility or an electronic mail service provider.

"Internet" has the meaning as set forth in section 231-8.6(c).

"Preexisting or current business relationship", as used in connection with the sending of a commercial e-mail advertisement, means a relationship in which a recipient has made an inquiry of and has provided the recipient's e-mail address to an advertiser, or has made an application, purchase, or transaction, with or without consideration, relating to products or services offered by the advertiser.

"Recipient" means the addressee of an unsolicited commercial e-mail advertisement. If an addressee of an unsolicited commercial e-mail advertisement has one or more e-mail addresses to which an unsolicited commercial e-mail advertisement is sent, the addressee shall be deemed to be a separate recipient for each e-mail address to which the e-mail advertisement is sent.

"Routine transmission" means the transmission, routing, relaying, handling, or storing of an electronic mail message through an automatic technical process. "Routine transmission" does not include the sending, or the knowing participation in the sending, of unsolicited commercial e-mail advertisements.

"Unsolicited commercial e-mail advertisement" means a commercial e-mail advertisement sent to a recipient who:

(1) Has not provided direct consent to receive advertisements from the advertiser; and

(2) Does not have a preexisting or current business relationship with the advertiser promoting the lease, sale, rental, gift offer, or other disposition of any property, goods, services, or extension of credit.

§   -2 Unsolicited commercial e-mail prohibited. (a) It is unlawful for any person or entity to:

(1) Initiate or advertise in an unsolicited commercial e-mail advertisement from Hawaii or advertise in an unsolicited commercial e-mail advertisement sent from Hawaii; or

(2) Initiate or advertise in an unsolicited commercial e-mail advertisement to a Hawaii electronic mail address, or advertise in an unsolicited commercial e-mail advertisement sent to a Hawaii electronic mail address.

(b) It is unlawful for any person or entity to:

(1) Collect electronic mail addresses posted on the Internet;

(2) Use an electronic mail address obtained by using automated means based on a combination of names, letters, or numbers; or

(3) Use scripts or other automated means to register for multiple electronic mail accounts;

for the purpose of committing or facilitating the acts set forth in subsection (a).

(c) A person or entity that transmits commercial e-mail advertisements pursuant to a preexisting or current business relationship shall allow the recipient of the commercial e-mail advertisement to "opt-out" from receiving further commercial e-mail advertisements by calling a toll-free telephone number or by sending an "unsubscribe" e-mail to the advertiser offering the products or services in the commercial e-mail advertisement. This subsection shall not apply to recipients of free e-mail service with regard to commercial e-mail advertisements sent by the provider of the free e-mail service.

§   -3 False or misleading commercial e-mail advertisement. It is unlawful for any person or entity to advertise using a commercial e-mail advertisement either sent from Hawaii or sent to a Hawaii electronic mail address if the commercial e-mail advertisement:

(1) Contains or is accompanied by a third party's domain name without the permission of the third party;

(2) Contains or is accompanied by falsified, misrepresented, obscured, or forged header information; provided that this paragraph does not apply to truthful information used by a third party who has been lawfully authorized by the advertiser to use that information; or

(3) Contains a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.

§   -4 Remedies; penalties. (a) In addition to any other remedies provided by law, a recipient of an unsolicited commercial e-mail advertisement transmitted in violation of this chapter, an electronic mail service provider, or the attorney general may bring an action against an entity that violates this chapter to recover:

(1) Actual damages; and

(2) Liquidated damages of $1,000 for each unsolicited commercial e-mail advertisement transmitted in violation of section    -2, up to $1,000,000 per incident.

(b) The court may award a prevailing plaintiff reasonable attorney's fees and costs.

(c) No action shall lie against an electronic mail service provider that is only involved in the routine transmission of unsolicited commercial e-mail advertisement over its computer network.

(d) If the court finds that the defendant established and implemented, with due care, practices and procedures reasonably designed to effectively prevent unsolicited commercial e-mail advertisements that are in violation of this chapter, the court shall reduce the liquidated damages recoverable under subsection (a) to a maximum of $100 for each unsolicited commercial e-mail advertisement, or a maximum of $100,000 per incident.

§   -5 Internet access service provider e-mail policy not precluded. Nothing in this chapter shall be construed to limit or restrict the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, receive, route, relay, handle, or store certain types of electronic mail messages."

SECTION 2. This Act shall take effect on January 1, 2005.

INTRODUCED BY:

_____________________________