| 1 | A bill to be entitled |
| 2 | An act relating to fraudulent use or possession of |
| 3 | identifying information; creating part IV of ch. 668, |
| 4 | F.S.; providing a short title; providing definitions; |
| 5 | prohibiting certain acts relating to fraudulent use or |
| 6 | possession of identifying information; authorizing civil |
| 7 | actions for violations; providing for injunctive relief |
| 8 | and damages; authorizing courts to increase awards of |
| 9 | actual damages under certain circumstances; providing for |
| 10 | recovery of attorney's fees and court costs; providing for |
| 11 | jurisdiction and venue; providing for deposit of certain |
| 12 | moneys received by the Attorney General into the Legal |
| 13 | Affairs Revolving Trust Fund; authorizing the Department |
| 14 | of Legal Affairs to adopt rules; providing for |
| 15 | nonapplication to certain entities' good faith handling of |
| 16 | identifying information; specifying the absence of |
| 17 | liability for certain actions taken to prevent certain |
| 18 | violations; providing an effective date. |
| 19 |
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| 20 | Be It Enacted by the Legislature of the State of Florida: |
| 21 |
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| 22 | Section 1. Part IV of chapter 668, Florida Statutes, |
| 23 | consisting of sections 668.701, 668.702, 668.703, 668.704, and |
| 24 | 668.705, Florida Statutes, is created to read: |
| 25 | PART IV |
| 26 | FRAUDULENT USE OR POSSESSION OF IDENTIFYING INFORMATION |
| 27 | 668.701 Short title.--This part may be cited as the "Anti- |
| 28 | "Anti-Phishing Act." |
| 29 | 668.702 Definitions.--As used in this part, the term: |
| 30 | (1) "Department" means the Department of Legal Affairs. |
| 31 | (2) "Electronic mail address" has the same meaning as |
| 32 | provided in s. 668.602. |
| 33 | (3) "Electronic mail message" has the same meaning as |
| 34 | provided in s. 668.602. |
| 35 | (4) "Identifying information" has the same meaning as the |
| 36 | term "personal identification information" as defined in s. |
| 37 | 817.568(1). |
| 38 | (5) "Internet domain name" has the same meaning as |
| 39 | provided in s. 668.602. |
| 40 | (6) "Web page" means a location that has a single uniform |
| 41 | resource locator (URL) with respect to the World Wide Web or |
| 42 | another location that can be accessed on the Internet. |
| 43 | 668.703 Prohibited acts.-- |
| 44 | (1) A person with an intent to engage in conduct involving |
| 45 | the fraudulent use or possession of another person's identifying |
| 46 | information may not represent oneself, directly or by |
| 47 | implication, to be another person without the authority or |
| 48 | approval of such other person through the use of a web page or |
| 49 | Internet domain name and use that web page, Internet domain |
| 50 | name, or a link to that web page or domain name or another site |
| 51 | on the Internet to induce, request, or solicit a resident of |
| 52 | this state to provide identifying information. |
| 53 | (2) A person with an intent to engage in conduct involving |
| 54 | the fraudulent use or possession of identifying information may |
| 55 | not send or cause to be sent to an electronic mail address held |
| 56 | by a resident of this state an electronic mail message that is |
| 57 | falsely represented as being sent by another person without the |
| 58 | authority or approval of such other person, refers or links the |
| 59 | recipient of the message to a web page, and directly or |
| 60 | indirectly induces, requests, or solicits the recipient of the |
| 61 | electronic mail message to provide identifying information. |
| 62 | 668.704 Remedies.-- |
| 63 | (1) The following persons may bring a civil action against |
| 64 | a person who violates this part: |
| 65 | (a) A person engaged in the business of providing Internet |
| 66 | access service to the public who is adversely affected by the |
| 67 | violation. |
| 68 | (b) A financial institution as defined in s. 655.005(1) |
| 69 | that is adversely affected by the violation. |
| 70 | (c) An owner of a web page, trademark, or service mark who |
| 71 | is adversely affected by the violation. |
| 72 | (d) The Attorney General. |
| 73 | (2) A person bringing an action under this section may: |
| 74 | (a) Seek injunctive relief to restrain the violator from |
| 75 | continuing the violation. |
| 76 | (b) Recover damages in an amount equal to the greater of: |
| 77 | 1. Actual damages arising from the violation; or |
| 78 | 2. The sum of $5,000 for each violation of the same |
| 79 | nature. |
| 80 | (3) The court may increase an award of actual damages in |
| 81 | an action brought under this section to an amount not to exceed |
| 82 | three times the actual damages sustained if the court finds that |
| 83 | the violations have occurred with a frequency as to constitute a |
| 84 | pattern or practice. |
| 85 | (4) For purposes of this section, violations are of the |
| 86 | same nature if the violations consist of the same course of |
| 87 | conduct or action, regardless of the number of times the conduct |
| 88 | or action occurred. |
| 89 | (5) A plaintiff who prevails in an action filed under this |
| 90 | section is entitled to recover reasonable attorney's fees and |
| 91 | court costs. |
| 92 | (6) By committing a violation under this part, the |
| 93 | violator submits personally to the jurisdiction of the courts of |
| 94 | this state. This section does not preclude other methods of |
| 95 | obtaining jurisdiction over a person who commits a violation |
| 96 | under this part. |
| 97 | (7) An action under this part may be brought in any court |
| 98 | of competent jurisdiction to enforce such rights and to recover |
| 99 | damages as stated in this part. |
| 100 | (8) The venue for a civil action brought under this |
| 101 | section shall be the county in which the plaintiff resides or in |
| 102 | any county in which any part of the alleged violation under this |
| 103 | part took place, regardless of whether the defendant was ever |
| 104 | actually present in that county. A civil action filed under this |
| 105 | section must be brought within 3 years after the violation |
| 106 | occurred. |
| 107 | (9) The remedies available under this section are in |
| 108 | addition to remedies otherwise available for the same conduct |
| 109 | under federal or state law. |
| 110 | (10) Any moneys received by the Attorney General for |
| 111 | attorney's fees and costs of investigation or litigation in |
| 112 | proceedings brought under this section shall be deposited as |
| 113 | received into the Legal Affairs Revolving Trust Fund. |
| 114 | (11) Any moneys received by the Attorney General which are |
| 115 | not for attorney's fees and costs of investigation or litigation |
| 116 | or used for reimbursing persons found under this part to be |
| 117 | damaged shall accrue to the state and be deposited as received |
| 118 | into the Legal Affairs Revolving Trust Fund. |
| 119 | (12) The Department of Legal Affairs may adopt rules |
| 120 | pursuant to ss. 120.536(1) and 120.54 to implement the |
| 121 | provisions of this part. |
| 122 | 668.705 Exemptions.-- |
| 123 | (1) This part does not apply to a telecommunications |
| 124 | provider's or Internet service provider's good faith |
| 125 | transmission or routing of, or intermediate temporary storing or |
| 126 | caching of, identifying information. |
| 127 | (2) A provider of an interactive computer service is not |
| 128 | liable under the laws of this state for removing or disabling |
| 129 | access to content that resides on an Internet website or other |
| 130 | online location controlled or operated by such provider if such |
| 131 | provider believes in good faith that the content is used to |
| 132 | engage in a violation of this part. |
| 133 | Section 2. This act shall take effect July 1, 2006. |