| 1 | The Criminal Justice Appropriations Committee recommends the |
| 2 | following: |
| 3 |
|
| 4 | Council/Committee Substitute |
| 5 | Remove the entire bill and insert: |
| 6 | A bill to be entitled |
| 7 | An act relating to electronic communication; requiring |
| 8 | certain governmental entities to post a notice on their |
| 9 | websites that electronic mail addresses sent to them are |
| 10 | subject to release to the public; amending s. 668.606, |
| 11 | F.S.; providing an exemption from criminal liability for |
| 12 | certain carriers and equipment providers whose equipment |
| 13 | transmits commercial electronic mail messages that violate |
| 14 | s. 668.603, F.S., which prohibits specified actions |
| 15 | relating to transmission of false or misleading |
| 16 | unsolicited commercial electronic mail messages; amending |
| 17 | s. 668.6075, F.S., and renumbering and amending subsection |
| 18 | (2) thereof as s. 668.610, F.S.; providing that remedies |
| 19 | and penalties under the Electronic Mail Communications Act |
| 20 | are cumulative; creating s. 668.608, F.S.; providing |
| 21 | criminal penalties for violations of s. 668.603, F.S., |
| 22 | which prohibits specified actions relating to transmission |
| 23 | of false or misleading unsolicited commercial electronic |
| 24 | mail messages; creating part IV of ch. 668, F.S.; |
| 25 | providing a short title; providing definitions; |
| 26 | prohibiting certain acts relating to fraudulent use or |
| 27 | possession of identifying information; authorizing civil |
| 28 | actions for violations; providing for injunctive relief |
| 29 | and damages; authorizing courts to increase awards of |
| 30 | actual damages under certain circumstances; providing for |
| 31 | recovery of attorney's fees and court costs; providing for |
| 32 | jurisdiction and venue; providing for deposit of certain |
| 33 | moneys received by the Attorney General into the Legal |
| 34 | Affairs Revolving Trust Fund; authorizing the Department |
| 35 | of Legal Affairs to adopt rules; providing for |
| 36 | nonapplication to certain entities' good faith handling of |
| 37 | identifying information; specifying the absence of |
| 38 | liability for certain actions taken to prevent certain |
| 39 | violations; providing applicability; providing an |
| 40 | effective date. |
| 41 |
|
| 42 | Be It Enacted by the Legislature of the State of Florida: |
| 43 |
|
| 44 | Section 1. Any agency, as defined in s. 119.011, Florida |
| 45 | Statutes, or legislative entity that operates a website and uses |
| 46 | electronic mail shall post the following statement in a |
| 47 | conspicuous location on its website: |
| 48 |
|
| 49 | Under Florida law, e-mail addresses are public records. If |
| 50 | you do not want your e-mail address released in response to |
| 51 | a public records request, do not send electronic mail to |
| 52 | this entity. Instead, contact this office by phone or in |
| 53 | writing. |
| 54 | Section 2. Subsection (2) of section 668.606, Florida |
| 55 | Statutes, is amended to read: |
| 56 | 668.606 Civil remedies; immunity.-- |
| 57 | (2) This part does not create a cause of action or provide |
| 58 | for criminal charges against an interactive computer service, |
| 59 | customer premise equipment provider, communications services |
| 60 | provider telephone company, or cable provider whose equipment is |
| 61 | used to transport, handle, or retransmit a commercial electronic |
| 62 | mail message that violates s. 668.603. |
| 63 | Section 3. Section 668.6075, Florida Statutes, is amended, |
| 64 | and subsection (2) of that section is renumbered as section |
| 65 | 668.610, Florida Statutes, and amended to read: |
| 66 | 668.6075 Unfair and deceptive trade practices Violations |
| 67 | of s. 668.603.-- |
| 68 | (1) A violation of s. 668.603 shall be deemed an unfair |
| 69 | and deceptive trade practice within the meaning of part II of |
| 70 | chapter 501. In addition to any remedies or penalties set forth |
| 71 | in that part, a violator shall be subject to the penalties and |
| 72 | remedies provided for in this part. |
| 73 | 668.610 Cumulative remedies.-- |
| 74 | (2) The remedies and criminal penalties of this part are |
| 75 | in addition to remedies and criminal penalties otherwise |
| 76 | available for the same conduct under federal or state law. |
| 77 | Section 4. Section 668.608, Florida Statutes, is created |
| 78 | to read: |
| 79 | 668.608 Criminal violations.-- |
| 80 | (1) Except as provided in subsection (2), any person who |
| 81 | violates s. 668.603 commits a misdemeanor of the first degree, |
| 82 | punishable as provided in s. 775.082 or s. 775.083. |
| 83 | (2) Any person who violates s. 668.603 commits a felony of |
| 84 | the third degree, punishable as provided in s. 775.082, s. |
| 85 | 775.083, or s. 775.084, if: |
| 86 | (a) The volume of commercial electronic mail messages |
| 87 | transmitted by the person exceeds 2,500 attempted recipients in |
| 88 | any 24-hour period; |
| 89 | (b) The volume of commercial electronic mail messages |
| 90 | transmitted by the person exceeds 25,000 attempted recipients in |
| 91 | any 30-day period; |
| 92 | (c) The volume of commercial electronic mail messages |
| 93 | transmitted by the person exceeds 250,000 attempted recipients |
| 94 | in any 1-year period; |
| 95 | (d) The revenue generated from a specific commercial |
| 96 | electronic mail message transmitted by the person exceeds |
| 97 | $1,000; |
| 98 | (e) The total revenue generated from all commercial |
| 99 | electronic mail messages transmitted by the person to any |
| 100 | electronic mail message service provider or its subscribers |
| 101 | exceeds $50,000; |
| 102 | (f) The person knowingly hires, employs, uses, or permits |
| 103 | any minor to assist in the transmission of a commercial |
| 104 | electronic mail message in violation of s. 668.603; or |
| 105 | (g) The person commits a violation otherwise punishable |
| 106 | under subsection (1) within a 5-year period after a previous |
| 107 | conviction under this section. |
| 108 | Section 5. Part IV of chapter 668, Florida Statutes, |
| 109 | consisting of sections 668.701, 668.702, 668.703, 668.704, and |
| 110 | 668.705, Florida Statutes, is created to read: |
| 111 |
|
| 112 | PART IV |
| 113 | FRAUDULENT USE OR POSSESSION OF IDENTIFYING INFORMATION |
| 114 |
|
| 115 | 668.701 Short title.--This part may be cited as the "Anti- |
| 116 | "Anti-Phishing Act." |
| 117 | 668.702 Definitions.--As used in this part, the term: |
| 118 | (1) "Department" means the Department of Legal Affairs. |
| 119 | (2) "Electronic mail address" has the same meaning as |
| 120 | provided in s. 668.602. |
| 121 | (3) "Electronic mail message" has the same meaning as |
| 122 | provided in s. 668.602. |
| 123 | (4) "Identifying information" has the same meaning as the |
| 124 | term "personal identification information" as defined in s. |
| 125 | 817.568(1). |
| 126 | (5) "Internet domain name" has the same meaning as |
| 127 | provided in s. 668.602. |
| 128 | (6) "Web page" means a location that has a single uniform |
| 129 | resource locator (URL) with respect to the World Wide Web or |
| 130 | another location that can be accessed on the Internet. |
| 131 | 668.703 Prohibited acts.-- |
| 132 | (1) A person with an intent to engage in conduct involving |
| 133 | the fraudulent use or possession of another person's identifying |
| 134 | information may not represent oneself, directly or by |
| 135 | implication, to be another person without the authority or |
| 136 | approval of such other person through the use of a web page or |
| 137 | Internet domain name and use that web page, Internet domain |
| 138 | name, or a link to that web page or domain name or another site |
| 139 | on the Internet to induce, request, or solicit a resident of |
| 140 | this state to provide identifying information. |
| 141 | (2) A person with an intent to engage in conduct involving |
| 142 | the fraudulent use or possession of identifying information may |
| 143 | not send or cause to be sent to an electronic mail address held |
| 144 | by a resident of this state an electronic mail message that is |
| 145 | falsely represented as being sent by another person without the |
| 146 | authority or approval of such other person, refers or links the |
| 147 | recipient of the message to a web page, and directly or |
| 148 | indirectly induces, requests, or solicits the recipient of the |
| 149 | electronic mail message to provide identifying information. |
| 150 | 668.704 Remedies.-- |
| 151 | (1) The following persons may bring a civil action against |
| 152 | a person who violates this part: |
| 153 | (a) A person engaged in the business of providing Internet |
| 154 | access service to the public who is adversely affected by the |
| 155 | violation. |
| 156 | (b) A financial institution as defined in s. 655.005(1) |
| 157 | that is adversely affected by the violation. |
| 158 | (c) An owner of a web page, trademark, or service mark who |
| 159 | is adversely affected by the violation. |
| 160 | (d) The Attorney General. |
| 161 | (2) A person bringing an action under this section may: |
| 162 | (a) Obtain injunctive relief to restrain the violator from |
| 163 | continuing the violation. |
| 164 | (b) Recover damages in an amount equal to the greater of: |
| 165 | 1. Actual damages arising from the violation; or |
| 166 | 2. The sum of $5,000 for each violation of the same |
| 167 | nature. |
| 168 | (3) The court may increase an award of actual damages in |
| 169 | an action brought under this section to an amount not to exceed |
| 170 | three times the actual damages sustained if the court finds that |
| 171 | the violations have occurred with a frequency as to constitute a |
| 172 | pattern or practice. |
| 173 | (4) For purposes of this section, violations are of the |
| 174 | same nature if the violations consist of the same course of |
| 175 | conduct or action, regardless of the number of times the conduct |
| 176 | or action occurred. |
| 177 | (5) A plaintiff who prevails in an action filed under this |
| 178 | section is entitled to recover reasonable attorney's fees and |
| 179 | court costs. |
| 180 | (6) By committing a violation under this part, the |
| 181 | violator submits personally to the jurisdiction of the courts of |
| 182 | this state. This section does not preclude other methods of |
| 183 | obtaining jurisdiction over a person who commits a violation |
| 184 | under this part. |
| 185 | (7) An action under this part may be brought in any court |
| 186 | of competent jurisdiction to enforce such rights and to recover |
| 187 | damages as stated in this part. |
| 188 | (8) The venue for a civil action brought under this |
| 189 | section shall be the county in which the plaintiff resides or in |
| 190 | any county in which any part of the alleged violation of this |
| 191 | part took place, regardless of whether the defendant was ever |
| 192 | actually present in that county. A civil action filed under this |
| 193 | section must be brought within 3 years after the violation |
| 194 | occurred. |
| 195 | (9) The remedies available under this section are in |
| 196 | addition to remedies otherwise available for the same conduct |
| 197 | under federal or state law. |
| 198 | (10) Any moneys received by the Attorney General for |
| 199 | attorney's fees and costs of investigation or litigation in |
| 200 | proceedings brought under this section shall be deposited as |
| 201 | received into the Legal Affairs Revolving Trust Fund. |
| 202 | (11) Any moneys received by the Attorney General that are |
| 203 | not for attorney's fees and costs of investigation or litigation |
| 204 | or used for reimbursing persons found under this part to be |
| 205 | damaged shall accrue to the state and be deposited as received |
| 206 | into the Legal Affairs Revolving Trust Fund. |
| 207 | (12) The Department of Legal Affairs may adopt rules |
| 208 | pursuant to ss. 120.536(1) and 120.54 to implement the |
| 209 | provisions of this part. |
| 210 | 668.705 Exemptions.-- |
| 211 | (1) This part does not apply to a telecommunications |
| 212 | provider's or Internet service provider's good faith |
| 213 | transmission or routing of, or intermediate temporary storing or |
| 214 | caching of, identifying information. |
| 215 | (2) A provider of an interactive computer service is not |
| 216 | liable under the laws of this state for removing or disabling |
| 217 | access to content that resides on an Internet website or other |
| 218 | online location controlled or operated by such provider if such |
| 219 | provider believes in good faith that the content is used to |
| 220 | engage in a violation of this part. |
| 221 | Section 6. This act shall take effect July 1, 2006, and |
| 222 | shall apply to violations committed on or after that date. |