H. B. 4710
(By Delegate Webb)
[Introduced February 27, 2004
; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §46A-6G-1 of the code of West Virginia,
1931, as amended; and to further amend said code by adding
thereto two new sections, designated §46A-6G-2a and
§46A-6G-2b,
all relating to electronic mail protection;
defining additional terms; providing additional prohibitions
relative to the dissemination of "spam" on the internet; and,
providing for damages against violators of the provisions of
the article.
Be it enacted by the Legislature of West Virginia:
That §46A-6G-1
of the code of West Virginia, 1931, as amended,
be amended and reenacted; and to further amend said code by adding
thereto two new sections, designated §46A-6G-2a and §46A-6G-2b, all
to read
as follows:
ARTICLE 6G. ELECTRONIC MAIL PROTECTION ACT.
§46A-6G-1. Legislative findings and declarations; definitions.
(a) The Legislature hereby finds and declares as follows:
(1) Roughly forty percent of all e-mail traffic in the United
States is comprised of unsolicited commercial e-mail advertisements
(hereinafter spam).
(2) The increase in spam is not only an annoyance but is also
an increasing drain on corporate budgets and possibly a threat to
the continued usefulness of the most successful tool of the
computer age.
(3) Complaints from irate business and home-computer users
regarding spam have skyrocketed, and polls have reported that
seventy-four percent of respondents favor making mass spamming
illegal and only twelve percent are opposed, and that eighty
percent of respondents consider spam very annoying.
(4) According to some reputable estimates, spam will cost
United States organizations more than ten billion dollars in the
coming year alone, including lost productivity and the additional
equipment, software and manpower needed to combat the problem.
(5) Like junk faxes, spam imposes a cost on users, using up
valuable storage space in e-mail in-boxes, as well as costly
computer band width, and on networks and the computer servers that
power them, and discourages people from using e-mail.
(6) Spam filters have not proven effective.
(7) Like traditional paper "junk" mail, spam can be annoying
and waste time, but it also causes many additional problems because it is easy and inexpensive to create, but difficult and costly to
eliminate.
(8) The "cost shifting" from deceptive spammers to Internet
business and e-mail users has been likened to sending junk mail
with postage due or making telemarketing calls to someone's
pay-per-minute cellular phone.
(9) Many spammers have become so adept at masking their tracks
that they are rarely found, and are so technologically
sophisticated that they can adjust their systems to counter special
filters and other barriers against spam and can even electronically
commandeer unprotected computers, turning them into spam-launching
weapons of mass production.
(10) There is a need to regulate the advertisers who use spam,
as well as the actual spammers, because the actual spammers can be
difficult to track down due to some return addresses that show up
on the display as "unknown" and many others being obvious fakes and
they are often located offshore.
(11) The true beneficiaries of spam are the advertisers who
benefit from the marketing derived from the advertisements.
In addition, spam is responsible for virus proliferation that
can cause tremendous damage both to individual computers and to
business systems.
(12) Because of the multiple problems caused by spam, it is
necessary that spam be prohibited and that commercial advertising e-mails be regulated as set forth in this article.
(b) As used in this article:
(1) "Advertiser" means a person or entity that advertises
through the use of commercial e-mail advertisements.
(1) (2) "Bulk electronic mail message" means an electronic
mail message sent in bulk to users of an interactive computer
service who have not requested or solicited the message.
Unauthorized for purposes of a bulk electronic mail message, means
a bulk electronic mail message sent in quantity in contravention of
the authorization granted by or in violation of the policies or
contractual rights of the electronic mail service provider.
(3) "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.
(4) "Direct consent" means that the recipient has expressly
consented to receive e-mail advertisements from the advertiser,
either in response to a clear and conspicuous request for the
consent or at the recipient's own initiative.
(5) "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.
(2) "Electronic mail address" means a destination, commonly
expressed as a string of characters, to which electronic mail may be sent or delivered.
(6) "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 or is 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.
(7) "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. An "electronic mail
address" or "e-mail address" consists of a user name or mailbox and
a reference to an Internet domain.
(8) "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.
(9) "Initiate" means to transmit or cause to be transmitted a
commercial e-mail advertisement or assist in the transmission of a
commercial e-mail advertisement by providing electronic mail
addresses where the advertisement may be sent, but does not include
the routine transmission of the advertisement through the network or system of a telecommunications utility or an electronic mail
service provider through its network or system.
(10) "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.
(3) "Initiate the transmission" means the action by the
original sender of an electronic mail message, not the action by
any intervening interactive computer service that may handle or
retransmit the message.
(4) (11) "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.
(5) (12) "Internet domain name" means 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.
(6) (13) "Person" means any individual, corporation,
partnership, association, limited liability company or any other
form or business association.
(14) "Preexisting or current business relationship," as used in connection with the sending of a commercial e-mail
advertisement, means that the recipient has made an inquiry and has
provided his or her e-mail address, or has made an application,
purchase, or transaction, with or without consideration, regarding
products or services offered by the advertiser.
Commercial e-mail advertisements sent pursuant to the
exemption provided for a preexisting or current business
relationship shall provide the recipient of the commercial e-mail
advertisement with the ability 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 opt-out provision does not apply to recipients
who are receiving free e-mail service with regard to commercial
e-mail advertisements sent by the provider of the e-mail service.
(15) "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.
(16) "Routine transmission" means the transmission, routing,
relaying, handling or storing of an electronic mail message through
an automatic technical process. "Routine transmission" shall not include the sending, or the knowing participation in the sending,
of unsolicited commercial e-mail advertisements.
(17) "Unsolicited commercial e-mail advertisement" means a
commercial e-mail advertisement sent to a recipient who meets both
of the following criteria:
(A) The recipient has not provided direct consent to receive
advertisements from the advertiser.
(B) The recipient 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.
(18) "West Virginia electronic mail address" or "West Virginia
e-mail address" means any of the following:
(A) An e-mail address furnished by an electronic mail service
provider that sends bills for furnishing and maintaining that
e-mail address to a mailing address in this state.
(B) An e-mail address ordinarily accessed from a computer
located in this state.
(C) An e-mail address furnished to a resident of this state.
§46A-6G-2a. Further Limitations on unauthorized electronic mail.
Notwithstanding any other provision of law, a person may not
do any of the following:
(a) Initiate or advertise in an unsolicited commercial e-mail
advertisement from California or advertise in an unsolicited commercial e-mail advertisement sent from this state.
(b) Initiate or advertise in an unsolicited commercial e-mail
advertisement to an electronic mail address in this state, or
advertise in an unsolicited commercial e-mail advertisement sent to
an electronic mail address in this state.
Nothing in this article 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.
(c) It is unlawful for any person or entity to collect
electronic mail addresses posted on the Internet if the purpose of
the collection is for the electronic mail addresses to be used to
do either of the following:
(1) Initiate or advertise in an unsolicited commercial e-mail
advertisement from this state, or advertise in an unsolicited
commercial e-mail advertisement sent from this state.
(2) Initiate or advertise in an unsolicited commercial e-mail
advertisement to an electronic mail address in this state, or
advertise in an unsolicited commercial e-mail advertisement sent to
an electronic mail address in this state.
(d) It is unlawful for any person to use an electronic mail
address obtained by using automated means based on a combination of
names, letters, or numbers to do either of the following:
(1) Initiate or advertise in an unsolicited commercial e-mail
advertisement from this state, or advertise in an unsolicited
commercial e-mail advertisement sent from this state.
(2) Initiate or advertise in an unsolicited commercial e-mail
advertisement to an electronic mail address in this state, or
advertise in an unsolicited commercial e-mail advertisement sent to
an electronic mail address in this state.
(e) It is unlawful for any person to use scripts or other
automated means to register for multiple electronic mail accounts
from which to do, or to enable another person to do, either of the
following:
(1) Initiate or advertise in an unsolicited commercial e-mail
advertisement from, or advertise in an unsolicited commercial
e-mail advertisement sent from this state.
(2) Initiate or advertise in an unsolicited commercial e-mail
advertisement to an electronic mail address in this state, or
advertise in an unsolicited commercial e-mail advertisement sent to
an electronic mail address in this state.
It is unlawful for any person or entity to advertise using a
commercial e-mail advertisement either sent from this state or sent
to an electronic mail address in this state under any of the
following circumstances:
(A) The commercial e-mail advertisement contains or is
accompanied by a third party's domain name without the permission of the third party;
(B) The Commercial e-mail advertisement contains or is
accompanied by falsified, misrepresented, obscured or forged header
information. 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;
(C) The commercial e-mail advertisement has 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.
(f) In addition to any other remedies provided by this article
or by any other provisions of law, a recipient of an unsolicited
commercial e-mail advertisement transmitted in violation of this
article, an electronic mail service provider, or the attorney
general may bring an action against an entity that violates any
provision of this article to recover either or both of the
following:
(A) Actual damages;
(B) Liquidated damages of one thousand dollars for each
unsolicited commercial e-mail advertisement transmitted in
violation of this article, up to one million dollars per incident.
(g) The recipient, an electronic mail service provider, or the
attorney general, if the prevailing plaintiff, may also recover
reasonable attorney's fees and costs.
(h) However, there shall not be a cause of action against an
electronic mail service provider that is only involved in the
routine transmission of the unsolicited commercial e-mail
advertisement over its computer network.
(i) 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 article, the court
shall reduce the liquidated damages recoverable under this article,
to a maximum of one hundred dollars for each unsolicited commercial
e-mail advertisement, or a maximum of one hundred thousand dollars
per incident.
§46A-6G-2b. Additional definitions; additional prohibitions.
(a) For purposes of this section, the following words have the
following meanings:
(1) "Electronic mail advertisement" means any electronic mail
message, the principal purpose of which is to promote, directly or
indirectly, the sale or other distribution of goods or services to
the recipient.
(2) "Unsolicited electronic mail advertisement" means any
electronic mail advertisement that meets both of the following
requirements:
(A) It is addressed to a recipient with whom the initiator
does not have an existing business or personal relationship;
(B) It is not sent at the request of or with the express
consent of the recipient.
(3) "Electronic mail service provider" means any business or
organization qualified to do business in California that provides
registered users the ability to send or receive electronic mail
through equipment located in this state and that is an intermediary
in sending or receiving electronic mail.
(4) "Initiation" of an unsolicited electronic mail
advertisement refers to the action by the initial sender of the
electronic mail advertisement. It does not refer to the actions of
any intervening electronic mail service provider that may handle or
retransmit the electronic message.
(5) "Registered user" means any individual, corporation or
other entity that maintains an electronic mail address with an
electronic mail service provider.
(b) No registered user of an electronic mail service provider
shall use or cause to be used that electronic mail service
provider's equipment located in this state in violation of that
electronic mail service provider's policy prohibiting or
restricting the use of its service or equipment for the initiation
of unsolicited electronic mail advertisements.
(c) No individual, corporation or other entity shall use or
cause to be used, by initiating an unsolicited electronic mail
advertisement, an electronic mail service provider's equipment located in this state in violation of that electronic mail service
provider's policy prohibiting or restricting the use of its
equipment to deliver unsolicited electronic mail advertisements to
its registered users.
(d) An electronic mail service provider shall not be required
to create a policy prohibiting or restricting the use of its
equipment for the initiation or delivery of unsolicited electronic
mail advertisements.
(e) Nothing in this section shall be construed to limit or
restrict the rights of an electronic mail service provider under
Section 230(c)(1) of Title 47 of the United States Code, or any
decision of an electronic mail service provider to permit or to
restrict access to or use of its system, or any exercise of its
editorial function.
(f) (1) In addition to any other action available under law,
any electronic mail service provider whose policy on unsolicited
electronic mail advertisements is violated as provided in this
section may bring a civil action to recover the actual monetary
loss suffered by that provider by reason of that violation, or
liquidated damages of fifty dollars for each electronic mail
message initiated or delivered in violation of this section, up to
a maximum of twenty-five thousand dollars per day, whichever amount
is greater.
(2) In any action brought under the provisions of this article, the court may award reasonable attorney's fees to a
prevailing party.
(3) In any action brought pursuant to paragraph (1) above, the
electronic mail service provider shall be required to establish as
an element of its cause of action that prior to the alleged
violation, the defendant had actual notice of both of the
following:
(A) The electronic mail service provider's policy on
unsolicited electronic mail advertising.
(B) The fact that the defendant's unsolicited electronic mail
advertisements would use or cause to be used the electronic mail
service provider's equipment located in this state.
In this regard, the Legislature finds that with rapid advances
in Internet technology, and electronic mail technology in
particular, Internet service providers are already experimenting
with embedding policy statements directly into the software running
on the computers used to provide electronic mail services in a
manner that displays the policy statements every time an electronic
mail delivery is requested. While the state of the technology does
not support such a finding at present, the Legislature believes
that, in a given case at some future date, a showing that notice
was supplied via electronic means between the sending and receiving
computers could be held to constitute actual notice to the sender
for purposes of this section.
(4) An electronic mail service provider who has brought an
action against a party for a violation under the provisions of this
article shall not bring an action against that party under this
section for the same unsolicited commercial electronic mail
advertisement.
NOTE: The purpose of this bill is to strengthen the current
law against the dissemination of "spam" on the Internet while
making prohibitions concerning the dissemination of spam much more
comprehensive. The bill also provides for damages against
violators.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Section 2a and 2b are new; therefore, strike-throughs and
underscoring have been omitted.
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