HB 1363

CS

CHAMBER ACTION

1	The Committee on Judiciary recommends the following:
2
3	Committee Substitute
4	Remove the entire bill and insert:
5
6	A bill to be entitled
7	An act relating to commercial relations; creating part III
8	of ch. 668, F.S., relating to unsolicited commercial
9	electronic mail; providing a popular name; providing
10	legislative intent; providing definitions relating to
11	unsolicited commercial electronic mail; prohibiting a
12	person from initiating or assisting in the transmission of
13	unsolicited commercial electronic mail under certain
14	circumstances; prohibiting the distribution of software or
15	any other system designed to falsify missing routing
16	information identifying the point of origin or the
17	transmission path of a commercial electronic mail message;
18	providing construction of the act with respect to
19	blocking, transmission, routing, relaying, handling, and
20	storing of certain types of electronic mail messages by
21	providers of Internet access service, the adoption of
22	policies regarding commercial or other electronic mail by
23	such providers, and policies that are unlawful under other
24	provisions of law; authorizing the Department of Legal
25	Affairs to enforce the act; authorizing the department and
26	persons receiving or retransmitting unsolicited electronic
27	mail to bring an action against persons transmitting that
28	mail; providing for declaratory and injunctive relief,
29	compensatory damages, and attorney's fees; declaring that
30	persons outside this state are subject to the jurisdiction
31	of this state's courts under specified circumstances;
32	providing a statute-of-limitations period; providing that
33	a violation of the act is an unfair and deceptive trade
34	practice; providing for severability; providing an
35	effective date.
36
37	Be It Enacted by the Legislature of the State of Florida:
38
39	Section 1.  Part III of chapter 668, Florida Statutes,
40	consisting of sections 668.60, 668.601, 668.602, 668.603,
41	668.604, 668.605, 668.606, and 668.6075, is created to read:
42	668.60  Popular name; application.--This part may be known
43	by the popular name the "Electronic Mail Communications Act."
44	Except as otherwise provided, this part applies to unsolicited
45	commercial electronic mail.
46	668.601  Legislative intent.--This part is intended to
47	promote the integrity of electronic commerce and shall be
48	construed liberally in order to protect the public and
49	legitimate businesses from deceptive and unsolicited commercial
50	electronic mail.
51	668.602  Definitions.--As used in this part, the term:
52	(1)  "Affirmative consent" means that the recipient of
53	electronic mail expressly consented to receive the message
54	either in response to a clear and conspicuous request for the
55	recipient's consent or at the recipient's own initiative. A
56	recipient is deemed to have given affirmative consent if the
57	electronic mail message is from a person other than the person
58	to whom the recipient directly communicated consent if clear and
59	conspicuous notice was given to the recipient that the
60	recipient's electronic mail address could be transferred to
61	another person for the purpose of that person initiating the
62	transmission of a commercial electronic mail message to the
63	recipient.
64	(2)  "Assist in the transmission" means to provide
65	substantial assistance or support that enables a person to
66	formulate, compose, send, originate, initiate, or transmit a
67	commercial electronic mail message when the person providing the
68	assistance knows or has reason to know that the initiator of the
69	commercial electronic mail message is engaged in or intends to
70	engage in a practice that violates this chapter. "Assist in the
71	transmission" does not include:
72	(a)  Actions that constitute routine conveyance of such
73	message; or
74	(b)  Activities of any entity related to the design,
75	manufacture, or distribution of any technology, product, or
76	component that has a commercially significant use other than to
77	violate or circumvent this statute.
78	(3)  "Commercial electronic mail message" means an
79	electronic mail message sent to promote the sale or lease of, or
80	investment in, property, goods, or services related to any trade
81	or commerce. This includes any electronic mail message which may
82	interfere with any trade or commerce, including messages which
83	contain computer viruses.
84	(4)  "Computer virus" means an unwanted computer program or
85	other set of instructions inserted into a computer's memory,
86	operating system, or program that is specifically constructed
87	with the ability to replicate itself or to affect the other
88	programs or files in the computer by attaching a copy of the
89	unwanted program or other set of instructions to one or more
90	computer programs or files.
91	(5)  "Department" means the Department of Legal Affairs.
92	(6)  "Electronic mail address" means a destination,
93	commonly expressed as a string of characters, to which
94	electronic mail may be sent or delivered.
95	(7)  "Electronic mail message" means an electronic message
96	or computer file that is transmitted between two or more
97	telecommunications devices; computers; computer networks,
98	regardless of whether the network is a local, regional, or
99	global network; or electronic devices capable of receiving
100	electronic messages, regardless of whether the message is
101	converted to hardcopy format after receipt, viewed upon
102	transmission, or stored for later retrieval.
103	(8)  "Initiate the transmission" means the action taken by
104	the original sender with respect to a commercial electronic mail
105	message.
106	(9)  "Interactive computer service" means any information
107	service, system, or access software provider that provides or
108	enables computer access by multiple users to a computer server,
109	including specifically, but not limited to, a service or system
110	that provides access to the Internet and the systems operated or
111	services offered by libraries or educational institutions.
112	(10)  "Internet domain name" means a globally unique,
113	hierarchical reference to an Internet host or service, which is
114	assigned through centralized Internet naming authorities, and
115	which is comprised of a series of character strings separated by
116	periods, with the right-most string specifying the top of the
117	hierarchy.
118	(11)  "Person" means any individual, group of individuals,
119	firm, association, corporation, partnership, joint venture, sole
120	proprietorship, or any other business entity.
121	(12)  "Routine conveyance" means the transmission, routing,
122	relaying, handling, or storing, through an automatic technical
123	process, of an electronic mail message for which another person
124	has identified the recipients or provided the recipient
125	addresses. This does not include any "routine conveyance" which
126	is deliberately intended to assist persons in violating this
127	part.
128	(13)  "Trade or commerce" means the advertising,
129	soliciting, providing, offering, or distributing, whether by
130	sale, rental, or otherwise, of any goods or service, or any
131	property, whether tangible or intangible, or any other article,
132	commodity, or thing of value, wherever situated.
133	(14)  "Unsolicited commercial electronic mail message"
134	means any commercial electronic mail message that is not a
135	transactional or relationship message and is sent to a recipient
136	without the recipient's prior affirmative or implied consent.
137	668.603  Prohibited activity.--A person may not:
138	(1)  Initiate or assist in the transmission of an
139	unsolicited commercial electronic mail message from a computer
140	located in this state or to an electronic mail address that is
141	held by a resident of this state which:
142	(a)  Uses a third party's Internet domain name without
143	permission of the third party;
144	(b)  Contains falsified or missing routing information or
145	otherwise misrepresents, falsifies, or obscures any information
146	in identifying the point of origin or the transmission path of
147	the unsolicited commercial electronic mail message;
148	(c)  Contains false or misleading information in the
149	subject line; or
150	(d)  Contains false or deceptive information in the body of
151	the message which is designed and intended to cause damage to
152	the recipient's receiving device and the receiving devices of
153	others receiving the message. However, this section does not
154	apply to electronic mail messages resulting from or created by a
155	computer virus and which are sent or retransmitted from a
156	computer or other electronic device without the sender's
157	knowledge or consent.
158	(2)  Distribute software or any other system designed to
159	falsify missing routing information identifying the point of
160	origin or the transmission path of the commercial electronic
161	mail message.
162	668.604  Blocking of commercial electronic mail by
163	interactive computer service.--Nothing in this part shall be
164	construed to:
165	(1)  Require a provider of Internet access service to
166	block, transmit, route, relay, handle, or store certain types of
167	electronic mail messages;
168	(2)  Prevent or limit, in any way, a provider of Internet
169	access service from adopting a policy regarding commercial or
170	other electronic mail, including a policy of declining to
171	transmit certain types of electronic mail messages, or from
172	enforcing such policy through technical means, through contract,
173	or pursuant to any remedy available under any other provision of
174	federal, state, or local criminal or civil law; or
175	(3)  Render lawful any policy regarding commercial or other
176	electronic mail that is unlawful under any other provision of
177	law.
178	668.605  Confidentiality of intelligence or investigation
179	information.--This part does not contravene the provisions of s.
180	501.2065, which provides for maintaining the confidential status
181	of certain information.
182	668.606  Remedies.--
183	(1)  The department may bring an action for damages or for
184	declaratory or injunctive relief or may impose a civil penalty
185	as provided in this section. A cause of action, without regard
186	to any other remedy or relief to which a person is entitled,
187	including the right to seek declaratory and injunctive relief
188	against a person who initiates or assists in the transmission of
189	a commercial electronic mail message that violates, has
190	violated, or is otherwise likely to violate s. 668.603, is
191	available to:
192	(a)  A person who receives an unsolicited commercial
193	electronic mail message; and
194	(b)  An interactive computer service, telephone company, or
195	cable provider that handles or retransmits the commercial
196	electronic mail message.
197	(2)  This part does not create a cause of action against an
198	interactive computer service, telephone company, or cable
199	provider whose equipment is used to transport, handle, or
200	retransmit a commercial electronic mail message that violates s.
201	668.603.
202	(3)  A prevailing plaintiff in an action filed under this
203	part is entitled to:
204	(a)  An injunction to enjoin future violations of s.
205	668.603.
206	(b)  Compensatory damages equal to any actual damage proven
207	by the plaintiff to have resulted from the initiation of the
208	unsolicited commercial electronic mail message or liquidated
209	damages of $500 for each unsolicited commercial electronic mail
210	message that violates s. 668.603 when that message is sent by
211	the defendant:
212	1.  To the plaintiff;
213	2.  Through the plaintiff's interactive computer service;
214	or
215	3.  To any consumer in this state, if the department is the
216	plaintiff.
217	(c)  The plaintiff's attorney's fees and other litigation
218	costs reasonably incurred in connection with the action.
219	(4)  Any person outside this state who initiates or assists
220	in the transmission of a commercial electronic mail message
221	received in this state which violates s. 668.603 and who knows,
222	or should have known, that the commercial electronic mail
223	message will be received in this state submits to the
224	jurisdiction of this state for purposes of this part.
225	(5)  An action under this section must be commenced within
226	4 years following the date of any activity prohibited by s.
227	668.603.
228	668.6075  Violations of s. 668.603.--
229	(1)  A violation of s. 668.603 shall be deemed an unfair
230	and deceptive trade practice within the meaning of part II of
231	chapter 501. In addition to any remedies or penalties set forth
232	in that part, a violator shall be subject to the penalties and
233	remedies provided for in this part.
234	(2)  The remedies of this part are in addition to remedies
235	otherwise available for the same conduct under federal or state
236	law.
237	Section 2.  If any provision of this act or its application
238	to any person or circumstance is held invalid, the invalidity
239	does not affect other provisions or applications of this act
240	which can be given effect without the invalid provision or
241	application, and to this end the provisions of this act are
242	severable.
243	Section 3.  This act shall take effect July 1, 2004.

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