Commercial Electronic Mail; False or Misleading Address or Subject Matter; Prohibition
Deems the transmission of an commercial electronic mail message that falsely or misleadingly identify the message's origin, return address, or subject matter, an unfair or deceptive act or practice. Establishes penalties. (SD1)
TWENTY-SECOND LEGISLATURE, 2003
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 Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
COMMERCIAL ELECTRONIC MAIL
§ -1 Definitions. As used in this chapter:
"Assist the transmission" means actions taken by a person to provide substantial assistance or support which 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 this chapter.
"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 mean 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, not to the action by any intervening interactive computer service that may handle or retransmit the message, unless such 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 this chapter.
"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 a person, corporation, partnership, or association.
"Unsolicited commercial electronic mail" means any electronic mail advertisement that is:
(1) Addressed to a recipient with whom the initiator does not have a prior or existing business or personal relationship; or
(2) Not sent at the request of or with the expressed consent of the recipient.
§ -2 Unfair or deceptive acts or practices prohibited. It is an unfair or deceptive act or practice and a violation of this chapter for any person to 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 resident of the State 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.
For purposes of this section, a person knows that the intended recipient of a commercial electronic mail message is a resident of the State if that information is available, upon request, from the registrant of the Internet domain name contained in the recipient's electronic mail address.
§ -3 Violations; damages. Any person who commits an unfair or deceptive act or practice in violation of this chapter shall be liable for damages to:
(1) The recipient of the commercial electronic mail message in the amount of $500, or actual damages, whichever is greater; and
(2) The relevant interactive computer service for $1,000, or actual damages, whichever is greater.
For the purpose of this section, each transmission of a commercial electronic message that violates this chapter to a recipient or relative interactive computer service covered by this chapter, shall constitute a separate violation. The penalties provided in this section shall be cumulative to the remedies or penalties available under all other laws of this State, including section 480-2.
§ -4 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 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.
SECTION 3. This Act shall take effect upon its approval.