HB 1363

1	A bill to be entitled
2	An act relating to commercial relations; creating part III
3	of ch. 668, F.S., relating to unsolicited commercial
4	electronic mail; providing a popular name; providing
5	legislative intent; providing definitions relating to
6	unsolicited commercial electronic mail; prohibiting a
7	person from initiating or assisting in the transmission of
8	unsolicited commercial electronic mail under certain
9	circumstances; prohibiting the distribution of software or
10	any other system designed to falsify missing routing
11	information identifying the point of origin or the
12	transmission path of a commercial electronic mail message;
13	authorizing interactive computer service providers to
14	block unsolicited commercial electronic mail; authorizing
15	the Department of Legal Affairs to enforce the act;
16	authorizing the department and persons receiving or
17	retransmitting unsolicited electronic mail to bring an
18	action against persons transmitting that mail; providing
19	for declaratory and injunctive relief, compensatory
20	damages, and attorney's fees; declaring that persons
21	outside this state are subject to the jurisdiction of this
22	state's courts under specified circumstances; providing a
23	statute-of-limitations period; providing that a violation
24	of the act is an unfair and deceptive trade practice;
25	providing for severability; providing an effective date.
26
27	Be It Enacted by the Legislature of the State of Florida:
28
29	Section 1.  Part III of chapter 668, Florida Statutes,
30	consisting of sections 668.60, 668.601, 668.602, 668.603,
31	668.604, 668.605, 668.606, and 668.6075, is created to read:
32	668.60  Popular name; application.--This part may be known
33	by the popular name the "Electronic Mail Communications Act."
34	Except as otherwise provided, this part applies to unsolicited
35	commercial electronic mail.
36	668.601  Legislative intent.--This part is intended to
37	promote the integrity of electronic commerce and shall be
38	construed liberally in order to protect the public and
39	legitimate businesses from deceptive and unsolicited commercial
40	electronic mail.
41	668.602  Definitions.--As used in this part, the term:
42	(1)  "Affirmative consent" means that the recipient of
43	electronic mail expressly consented to receive the message
44	either in response to a clear and conspicuous request for the
45	recipient's consent or at the recipient's own initiative. A
46	recipient is deemed to have given affirmative consent if the
47	electronic mail message is from a person other than the person
48	to whom the recipient directly communicated consent if clear and
49	conspicuous notice was given to the recipient that the
50	recipient's electronic mail address could be transferred to
51	another person for the purpose of that person initiating the
52	transmission of a commercial electronic mail message to the
53	recipient.
54	(2)  "Assist in the transmission" means to provide
55	substantial assistance or support that enables a person to
56	formulate, compose, send, originate, initiate, or transmit a
57	commercial electronic mail message when the person providing the
58	assistance knows or has reason to know that the initiator of the
59	commercial electronic mail message is engaged in or intends to
60	engage in a practice that violates this chapter.
61	(3)  "Commercial electronic mail message" means an
62	electronic mail message sent to promote the sale or lease of, or
63	investment in, property, goods, or services related to any trade
64	or commerce.
65	(4)  "Department" means the Department of Legal Affairs.
66	(5)  "Electronic mail address" means a destination,
67	commonly expressed as a string of characters, to which
68	electronic mail may be sent or delivered.
69	(6)  "Electronic mail message" means an electronic message
70	or computer file that is transmitted between two or more
71	telecommunications devices; computers; computer networks,
72	regardless of whether the network is a local, regional, or
73	global network; or electronic devices capable of receiving
74	electronic messages, regardless of whether the message is
75	converted to hardcopy format after receipt, viewed upon
76	transmission, or stored for later retrieval.
77	(7)  "Initiate the transmission" means the action taken by
78	the original sender with respect to a commercial electronic mail
79	message.
80	(8)  "Interactive computer service" means any information
81	service, system, or access software provider that provides or
82	enables computer access by multiple users to a computer server,
83	including specifically, but not limited to, a service or system
84	that provides access to the Internet and the systems operated or
85	services offered by libraries or educational institutions.
86	(9)  "Internet domain name" means a globally unique,
87	hierarchical reference to an Internet host or service, which is
88	assigned through centralized Internet naming authorities, and
89	which is comprised of a series of character strings separated by
90	periods, with the right-most string specifying the top of the
91	hierarchy.
92	(10)  ?Person? means any individual, group of individuals,
93	firm, association, corporation, partnership, joint venture, sole
94	proprietorship, or any other business entity.
95	(11)  "Trade or commerce" means the advertising,
96	soliciting, providing, offering, or distributing, whether by
97	sale, rental, or otherwise, of any goods or service, or any
98	property, whether tangible or intangible, or any other article,
99	commodity, or thing of value, wherever situated.
100	(12)  "Unsolicited commercial electronic mail message"
101	means any commercial electronic mail message that is not a
102	transactional or relationship message and is sent to a recipient
103	without the recipient's prior affirmative or implied consent.
104	668.603  Prohibited activity.--A person may not:
105	(1)  Initiate or assist in the transmission of an
106	unsolicited commercial electronic mail message from a computer
107	located in this state or to an electronic mail address that is
108	held by a resident of this state which:
109	(a)  Uses a third party's Internet domain name without
110	permission of the third party;
111	(b)  Contains falsified or missing routing information or
112	otherwise misrepresents, falsifies, or obscures any information
113	in identifying the point of origin or the transmission path of
114	the unsolicited commercial electronic mail message; or
115	(c)  Contains false or misleading information in the
116	subject line.
117
118	A person is not initiating a transmission if the activity is
119	undertaken by an intervening interactive computer service or
120	wireless network that handles or retransmits a commercial
121	electronic mail message, unless the intervening interactive
122	computer service knows, or has reason to know, that the person
123	initiating the transmission is engaged, or intends to engage, in
124	any act or practice that violates this section.
125	(2)  Distribute software or any other system designed to
126	falsify missing routing information identifying the point of
127	origin or the transmission path of the commercial electronic
128	mail message.
129	668.604  Blocking of commercial electronic mail by
130	interactive computer service.--
131	(1)  An interactive computer service may, upon its own
132	initiative, block the receipt or transmission through its
133	service of any commercial electronic mail message that it
134	reasonably believes is, or will be sent, in violation of s.
135	668.603.
136	(2)  An interactive computer service is not liable for any
137	action voluntarily taken in good faith to block the receipt or
138	transmission through its service of any commercial electronic
139	mail message that it reasonably believes is, or will be sent, in
140	violation of s. 668.603.
141	668.605  Confidentiality of intelligence or investigation
142	information.--This part does not contravene the provisions of s.
143	501.2065, which provides for maintaining the confidential status
144	of certain information.
145	668.606  Remedies.--
146	(1)  The department may bring an action for damages or for
147	declaratory or injunctive relief or may impose a civil penalty
148	as provided in this section. A cause of action, without regard
149	to any other remedy or relief to which a person is entitled,
150	including the right to seek declaratory and injunctive relief
151	against a person who initiates or assists in the transmission of
152	a commercial electronic mail message that violates, has
153	violated, or is otherwise likely to violate s. 668.603, is
154	available to:
155	(a)  A person who receives an unsolicited commercial
156	electronic mail message; and
157	(b)  An interactive computer service, telephone company, or
158	cable provider that handles or retransmits the commercial
159	electronic mail message.
160	(2)  This part does not create a cause of action against an
161	interactive computer service, telephone company, or cable
162	provider whose equipment is used to transport, handle, or
163	retransmit a commercial electronic mail message that violates s.
164	668.603.
165	(3)  A prevailing plaintiff in an action filed under this
166	part is entitled to:
167	(a)  An injunction to enjoin future violations of s.
168	668.603.
169	(b)  Compensatory damages equal to any actual damage proven
170	by the plaintiff to have resulted from the initiation of the
171	unsolicited commercial electronic mail message or liquidated
172	damages of $500 for each unsolicited commercial electronic mail
173	message that violates s. 668.603 when that message is sent by
174	the defendant:
175	1.  To the plaintiff;
176	2.  Through the plaintiff's interactive computer service;
177	or
178	3.  To any consumer in this state, if the department is the
179	plaintiff.
180	(c)  The plaintiff's attorney's fees and other litigation
181	costs reasonably incurred in connection with the action.
182	(4)  Any person outside this state who initiates or assists
183	in the transmission of a commercial electronic mail message
184	received in this state which violates s. 668.603 and who knows,
185	or should have known, that the commercial electronic mail
186	message will be received in this state submits to the
187	jurisdiction of this state for purposes of this part.
188	(5)  An action under this section must be commenced within
189	4 years following the date of any activity prohibited by s.
190	668.603.
191	668.6075  Violations of s. 668.603.--
192	(1)  A violation of s. 668.603 shall be deemed an unfair
193	and deceptive trade practice within the meaning of part II of
194	chapter 501. In addition to any remedies or penalties set forth
195	in that part, a violator shall be subject to the penalties and
196	remedies provided for in this part.
197	(2)  The remedies of this part are in addition to remedies
198	otherwise available for the same conduct under federal or state
199	law.
200	Section 2.  If any provision of this act or its application
201	to any person or circumstance is held invalid, the invalidity
202	does not affect other provisions or applications of this act
203	which can be given effect without the invalid provision or
204	application, and to this end the provisions of this act are
205	severable.
206	Section 3.  This act shall take effect July 1, 2004.

CODING: Words stricken are deletions; words underlined are additions.