HB 1363CS

CHAMBER ACTION



1The Committee on Appropriations recommends the following:
2
3     Committee Substitute
4     Remove the entire bill and insert:
5
6
A bill to be entitled
7An act relating to commercial relations; creating part III
8of ch. 668, F.S., relating to unsolicited commercial
9electronic mail; providing a popular name; providing
10legislative intent; providing definitions relating to
11unsolicited commercial electronic mail; prohibiting a
12person from initiating or assisting in the transmission of
13unsolicited commercial electronic mail under certain
14circumstances; prohibiting the distribution of software or
15any other system designed to falsify missing routing
16information identifying the point of origin or the
17transmission path of a commercial electronic mail message;
18providing construction of the act with respect to
19blocking, transmission, routing, relaying, handling, and
20storing of certain types of electronic mail messages by
21providers of Internet access service, the adoption of
22policies regarding commercial or other electronic mail by
23such providers, and policies that are unlawful under other
24provisions of law; authorizing the Department of Legal
25Affairs to enforce the act; authorizing the department and
26an interactive computer service, telephone company, or
27cable provider that handles or retransmits unsolicited
28electronic mail to bring an action against persons
29transmitting that mail; providing for declaratory and
30injunctive relief, compensatory damages, and attorney's
31fees; declaring that persons outside this state are
32subject to the jurisdiction of this state's courts under
33specified circumstances; providing a statute-of-
34limitations period; providing that a violation of the act
35is an unfair and deceptive trade practice; providing for
36severability; providing an effective date.
37
38Be It Enacted by the Legislature of the State of Florida:
39
40     Section 1.  Part III of chapter 668, Florida Statutes,
41consisting of sections 668.60, 668.601, 668.602, 668.603,
42668.604, 668.605, 668.606, and 668.6075, is created to read:
43     668.60  Popular name; application.--This part may be known
44by the popular name the "Electronic Mail Communications Act."
45Except as otherwise provided, this part applies to unsolicited
46commercial electronic mail.
47     668.601  Legislative intent.--This part is intended to
48promote the integrity of electronic commerce and shall be
49construed liberally in order to protect the public and
50legitimate businesses from deceptive and unsolicited commercial
51electronic mail.
52     668.602  Definitions.--As used in this part, the term:
53     (1)  "Affirmative consent" means that the recipient of
54electronic mail expressly consented to receive the message
55either in response to a clear and conspicuous request for the
56recipient's consent or at the recipient's own initiative. A
57recipient is deemed to have given affirmative consent if the
58electronic mail message is from a person other than the person
59to whom the recipient directly communicated consent if clear and
60conspicuous notice was given to the recipient that the
61recipient's electronic mail address could be transferred to
62another person for the purpose of that person initiating the
63transmission of a commercial electronic mail message to the
64recipient.
65     (2)  "Assist in the transmission" means to provide
66substantial assistance or support that enables a person to
67formulate, compose, send, originate, initiate, or transmit a
68commercial electronic mail message when the person providing the
69assistance knows or has reason to know that the initiator of the
70commercial electronic mail message is engaged in or intends to
71engage in a practice that violates this chapter. "Assist in the
72transmission" does not include:
73     (a)  Actions that constitute routine conveyance of such
74message; or
75     (b)  Activities of any entity related to the design,
76manufacture, or distribution of any technology, product, or
77component that has a commercially significant use other than to
78violate or circumvent this statute.
79     (3)  "Commercial electronic mail message" means an
80electronic mail message sent to promote the sale or lease of, or
81investment in, property, goods, or services related to any trade
82or commerce. This includes any electronic mail message which may
83interfere with any trade or commerce, including messages which
84contain computer viruses.
85     (4)  "Computer virus" means a computer program that is
86designed to replicate itself or affect another program or file
87in the computer by attaching a copy of the program or other set
88of instructions to one or more computer programs or files
89without the consent of the owner or lawful user. "Computer
90virus" includes, but is not limited to, programs that are
91designed to contaminate other computer programs; compromise
92computer security; consume computer resources; modify, destroy,
93record, or transmit data; or disrupt the normal operation of the
94computer, computer system, or computer network. "Computer virus"
95also includes, but is not limited to, programs that are designed
96to use a computer without the knowledge and consent of the owner
97or authorized user and to send large quantities of data to a
98targeted computer network without their consent for the purpose
99of degrading the targeted computer's or network's performance or
100for the purpose of denying access through the network to the
101targeted computer or network.
102     (5)  "Department" means the Department of Legal Affairs.
103     (6)  "Electronic mail address" means a destination,
104commonly expressed as a string of characters, to which
105electronic mail may be sent or delivered.
106     (7)  "Electronic mail message" means an electronic message
107or computer file that is transmitted between two or more
108telecommunications devices; computers; computer networks,
109regardless of whether the network is a local, regional, or
110global network; or electronic devices capable of receiving
111electronic messages, regardless of whether the message is
112converted to hardcopy format after receipt, viewed upon
113transmission, or stored for later retrieval.
114     (8)  "Initiate the transmission" means the action taken by
115the original sender with respect to a commercial electronic mail
116message.
117     (9)  "Interactive computer service" means any information
118service, system, or access software provider that provides or
119enables computer access by multiple users to a computer server,
120including specifically, but not limited to, a service or system
121that provides access to the Internet and the systems operated or
122services offered by libraries or educational institutions.
123     (10)  "Internet domain name" means a globally unique,
124hierarchical reference to an Internet host or service, which is
125assigned through centralized Internet naming authorities, and
126which is comprised of a series of character strings separated by
127periods, with the right-most string specifying the top of the
128hierarchy.
129     (11)  "Person" means any individual, group of individuals,
130firm, association, corporation, partnership, joint venture, sole
131proprietorship, or any other business entity.
132     (12)  "Routine conveyance" means the transmission, routing,
133relaying, handling, or storing, through an automatic technical
134process, of an electronic mail message for which another person
135has identified the recipients or provided the recipient
136addresses. This does not include any "routine conveyance" which
137is deliberately intended to assist persons in violating this
138part.
139     (13)  "Trade or commerce" means the advertising,
140soliciting, providing, offering, or distributing, whether by
141sale, rental, or otherwise, of any goods or service, or any
142property, whether tangible or intangible, or any other article,
143commodity, or thing of value, wherever situated.
144     (14)  "Unsolicited commercial electronic mail message"
145means any commercial electronic mail message that is not a
146transactional or relationship message and is sent to a recipient
147without the recipient's prior affirmative or implied consent.
148     668.603  Prohibited activity.--A person may not:
149     (1)  Initiate or assist in the transmission of an
150unsolicited commercial electronic mail message from a computer
151located in this state or to an electronic mail address that is
152held by a resident of this state which:
153     (a)  Uses a third party's Internet domain name without
154permission of the third party;
155     (b)  Contains falsified or missing routing information or
156otherwise misrepresents, falsifies, or obscures any information
157in identifying the point of origin or the transmission path of
158the unsolicited commercial electronic mail message;
159     (c)  Contains false or misleading information in the
160subject line; or
161     (d)  Contains false or deceptive information in the body of
162the message which is designed and intended to cause damage to
163the recipient's receiving device and the receiving devices of
164others receiving the message. However, this section does not
165apply to electronic mail messages resulting from or created by a
166computer virus and which are sent or retransmitted from a
167computer or other electronic device without the sender's
168knowledge or consent.
169     (2)  Distribute software or any other system designed to
170falsify missing routing information identifying the point of
171origin or the transmission path of the commercial electronic
172mail message.
173     668.604  Blocking of commercial electronic mail by
174interactive computer service.--Nothing in this part shall be
175construed to:
176     (1)  Require a provider of Internet access service to
177block, transmit, route, relay, handle, or store certain types of
178electronic mail messages;
179     (2)  Prevent or limit, in any way, a provider of Internet
180access service from adopting a policy regarding commercial or
181other electronic mail, including a policy of declining to
182transmit certain types of electronic mail messages, or from
183enforcing such policy through technical means, through contract,
184or pursuant to any remedy available under any other provision of
185federal, state, or local criminal or civil law; or
186     (3)  Render lawful any policy regarding commercial or other
187electronic mail that is unlawful under any other provision of
188law.
189     668.605  Confidentiality of intelligence or investigation
190information.--This part does not contravene the provisions of s.
191501.2065, which provides for maintaining the confidential status
192of certain information.
193     668.606  Remedies.--
194     (1)  The department may bring an action for damages or for
195declaratory or injunctive relief or may impose a civil penalty
196as provided in this section. A cause of action, without regard
197to any other remedy or relief to which a person is entitled,
198including the right to seek declaratory and injunctive relief
199against a person who initiates or assists in the transmission of
200a commercial electronic mail message that violates, has
201violated, or is otherwise likely to violate s. 668.603, is
202available to an interactive computer service, telephone company,
203or cable provider that handles or retransmits the commercial
204electronic mail message.
205     (2)  This part does not create a cause of action against an
206interactive computer service, telephone company, or cable
207provider whose equipment is used to transport, handle, or
208retransmit a commercial electronic mail message that violates s.
209668.603.
210     (3)  A prevailing plaintiff in an action filed under this
211part is entitled to:
212     (a)  An injunction to enjoin future violations of s.
213668.603.
214     (b)  Compensatory damages equal to any actual damage proven
215by the plaintiff to have resulted from the initiation of the
216unsolicited commercial electronic mail message or liquidated
217damages of $500 for each unsolicited commercial electronic mail
218message that violates s. 668.603 when that message is sent by
219the defendant:
220     1.  To the plaintiff;
221     2.  Through the plaintiff's interactive computer service;
222or
223     3.  To any consumer in this state, if the department is the
224plaintiff.
225     (c)  The plaintiff's attorney's fees and other litigation
226costs reasonably incurred in connection with the action.
227     (4)  Any person outside this state who initiates or assists
228in the transmission of a commercial electronic mail message
229received in this state which violates s. 668.603 and who knows,
230or should have known, that the commercial electronic mail
231message will be received in this state submits to the
232jurisdiction of this state for purposes of this part.
233     (5)  An action under this section must be commenced within
2344 years following the date of any activity prohibited by s.
235668.603.
236     668.6075  Violations of s. 668.603.--
237     (1)  A violation of s. 668.603 shall be deemed an unfair
238and deceptive trade practice within the meaning of part II of
239chapter 501. In addition to any remedies or penalties set forth
240in that part, a violator shall be subject to the penalties and
241remedies provided for in this part.
242     (2)  The remedies of this part are in addition to remedies
243otherwise available for the same conduct under federal or state
244law.
245     Section 2.  If any provision of this act or its application
246to any person or circumstance is held invalid, the invalidity
247does not affect other provisions or applications of this act
248which can be given effect without the invalid provision or
249application, and to this end the provisions of this act are
250severable.
251     Section 3.  This act shall take effect July 1, 2004.


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