September 25, 2020
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HB 1363CS

CHAMBER ACTION




1The Committee on Judiciary 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
26persons receiving or retransmitting unsolicited electronic
27mail to bring an action against persons transmitting that
28mail; providing for declaratory and injunctive relief,
29compensatory damages, and attorney's fees; declaring that
30persons outside this state are subject to the jurisdiction
31of this state's courts under specified circumstances;
32providing a statute-of-limitations period; providing that
33a violation of the act is an unfair and deceptive trade
34practice; providing for severability; providing an
35effective date.
36
37Be It Enacted by the Legislature of the State of Florida:
38
39     Section 1.  Part III of chapter 668, Florida Statutes,
40consisting of sections 668.60, 668.601, 668.602, 668.603,
41668.604, 668.605, 668.606, and 668.6075, is created to read:
42     668.60  Popular name; application.--This part may be known
43by the popular name the "Electronic Mail Communications Act."
44Except as otherwise provided, this part applies to unsolicited
45commercial electronic mail.
46     668.601  Legislative intent.--This part is intended to
47promote the integrity of electronic commerce and shall be
48construed liberally in order to protect the public and
49legitimate businesses from deceptive and unsolicited commercial
50electronic mail.
51     668.602  Definitions.--As used in this part, the term:
52     (1)  "Affirmative consent" means that the recipient of
53electronic mail expressly consented to receive the message
54either in response to a clear and conspicuous request for the
55recipient's consent or at the recipient's own initiative. A
56recipient is deemed to have given affirmative consent if the
57electronic mail message is from a person other than the person
58to whom the recipient directly communicated consent if clear and
59conspicuous notice was given to the recipient that the
60recipient's electronic mail address could be transferred to
61another person for the purpose of that person initiating the
62transmission of a commercial electronic mail message to the
63recipient.
64     (2)  "Assist in the transmission" means to provide
65substantial assistance or support that enables a person to
66formulate, compose, send, originate, initiate, or transmit a
67commercial electronic mail message when the person providing the
68assistance knows or has reason to know that the initiator of the
69commercial electronic mail message is engaged in or intends to
70engage in a practice that violates this chapter. "Assist in the
71transmission" does not include:
72     (a)  Actions that constitute routine conveyance of such
73message; or
74     (b)  Activities of any entity related to the design,
75manufacture, or distribution of any technology, product, or
76component that has a commercially significant use other than to
77violate or circumvent this statute.
78     (3)  "Commercial electronic mail message" means an
79electronic mail message sent to promote the sale or lease of, or
80investment in, property, goods, or services related to any trade
81or commerce. This includes any electronic mail message which may
82interfere with any trade or commerce, including messages which
83contain computer viruses.
84     (4)  "Computer virus" means an unwanted computer program or
85other set of instructions inserted into a computer's memory,
86operating system, or program that is specifically constructed
87with the ability to replicate itself or to affect the other
88programs or files in the computer by attaching a copy of the
89unwanted program or other set of instructions to one or more
90computer programs or files.
91     (5)  "Department" means the Department of Legal Affairs.
92     (6)  "Electronic mail address" means a destination,
93commonly expressed as a string of characters, to which
94electronic mail may be sent or delivered.
95     (7)  "Electronic mail message" means an electronic message
96or computer file that is transmitted between two or more
97telecommunications devices; computers; computer networks,
98regardless of whether the network is a local, regional, or
99global network; or electronic devices capable of receiving
100electronic messages, regardless of whether the message is
101converted to hardcopy format after receipt, viewed upon
102transmission, or stored for later retrieval.
103     (8)  "Initiate the transmission" means the action taken by
104the original sender with respect to a commercial electronic mail
105message.
106     (9)  "Interactive computer service" means any information
107service, system, or access software provider that provides or
108enables computer access by multiple users to a computer server,
109including specifically, but not limited to, a service or system
110that provides access to the Internet and the systems operated or
111services offered by libraries or educational institutions.
112     (10)  "Internet domain name" means a globally unique,
113hierarchical reference to an Internet host or service, which is
114assigned through centralized Internet naming authorities, and
115which is comprised of a series of character strings separated by
116periods, with the right-most string specifying the top of the
117hierarchy.
118     (11)  "Person" means any individual, group of individuals,
119firm, association, corporation, partnership, joint venture, sole
120proprietorship, or any other business entity.
121     (12)  "Routine conveyance" means the transmission, routing,
122relaying, handling, or storing, through an automatic technical
123process, of an electronic mail message for which another person
124has identified the recipients or provided the recipient
125addresses. This does not include any "routine conveyance" which
126is deliberately intended to assist persons in violating this
127part.
128     (13)  "Trade or commerce" means the advertising,
129soliciting, providing, offering, or distributing, whether by
130sale, rental, or otherwise, of any goods or service, or any
131property, whether tangible or intangible, or any other article,
132commodity, or thing of value, wherever situated.
133     (14)  "Unsolicited commercial electronic mail message"
134means any commercial electronic mail message that is not a
135transactional or relationship message and is sent to a recipient
136without 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
139unsolicited commercial electronic mail message from a computer
140located in this state or to an electronic mail address that is
141held by a resident of this state which:
142     (a)  Uses a third party's Internet domain name without
143permission of the third party;
144     (b)  Contains falsified or missing routing information or
145otherwise misrepresents, falsifies, or obscures any information
146in identifying the point of origin or the transmission path of
147the unsolicited commercial electronic mail message;
148     (c)  Contains false or misleading information in the
149subject line; or
150     (d)  Contains false or deceptive information in the body of
151the message which is designed and intended to cause damage to
152the recipient's receiving device and the receiving devices of
153others receiving the message. However, this section does not
154apply to electronic mail messages resulting from or created by a
155computer virus and which are sent or retransmitted from a
156computer or other electronic device without the sender's
157knowledge or consent.
158     (2)  Distribute software or any other system designed to
159falsify missing routing information identifying the point of
160origin or the transmission path of the commercial electronic
161mail message.
162     668.604  Blocking of commercial electronic mail by
163interactive computer service.--Nothing in this part shall be
164construed to:
165     (1)  Require a provider of Internet access service to
166block, transmit, route, relay, handle, or store certain types of
167electronic mail messages;
168     (2)  Prevent or limit, in any way, a provider of Internet
169access service from adopting a policy regarding commercial or
170other electronic mail, including a policy of declining to
171transmit certain types of electronic mail messages, or from
172enforcing such policy through technical means, through contract,
173or pursuant to any remedy available under any other provision of
174federal, state, or local criminal or civil law; or
175     (3)  Render lawful any policy regarding commercial or other
176electronic mail that is unlawful under any other provision of
177law.
178     668.605  Confidentiality of intelligence or investigation
179information.--This part does not contravene the provisions of s.
180501.2065, which provides for maintaining the confidential status
181of certain information.
182     668.606  Remedies.--
183     (1)  The department may bring an action for damages or for
184declaratory or injunctive relief or may impose a civil penalty
185as provided in this section. A cause of action, without regard
186to any other remedy or relief to which a person is entitled,
187including the right to seek declaratory and injunctive relief
188against a person who initiates or assists in the transmission of
189a commercial electronic mail message that violates, has
190violated, or is otherwise likely to violate s. 668.603, is
191available to:
192     (a)  A person who receives an unsolicited commercial
193electronic mail message; and
194     (b)  An interactive computer service, telephone company, or
195cable provider that handles or retransmits the commercial
196electronic mail message.
197     (2)  This part does not create a cause of action against an
198interactive computer service, telephone company, or cable
199provider whose equipment is used to transport, handle, or
200retransmit a commercial electronic mail message that violates s.
201668.603.
202     (3)  A prevailing plaintiff in an action filed under this
203part is entitled to:
204     (a)  An injunction to enjoin future violations of s.
205668.603.
206     (b)  Compensatory damages equal to any actual damage proven
207by the plaintiff to have resulted from the initiation of the
208unsolicited commercial electronic mail message or liquidated
209damages of $500 for each unsolicited commercial electronic mail
210message that violates s. 668.603 when that message is sent by
211the defendant:
212     1.  To the plaintiff;
213     2.  Through the plaintiff's interactive computer service;
214or
215     3.  To any consumer in this state, if the department is the
216plaintiff.
217     (c)  The plaintiff's attorney's fees and other litigation
218costs reasonably incurred in connection with the action.
219     (4)  Any person outside this state who initiates or assists
220in the transmission of a commercial electronic mail message
221received in this state which violates s. 668.603 and who knows,
222or should have known, that the commercial electronic mail
223message will be received in this state submits to the
224jurisdiction of this state for purposes of this part.
225     (5)  An action under this section must be commenced within
2264 years following the date of any activity prohibited by s.
227668.603.
228     668.6075  Violations of s. 668.603.--
229     (1)  A violation of s. 668.603 shall be deemed an unfair
230and deceptive trade practice within the meaning of part II of
231chapter 501. In addition to any remedies or penalties set forth
232in that part, a violator shall be subject to the penalties and
233remedies provided for in this part.
234     (2)  The remedies of this part are in addition to remedies
235otherwise available for the same conduct under federal or state
236law.
237     Section 2.  If any provision of this act or its application
238to any person or circumstance is held invalid, the invalidity
239does not affect other provisions or applications of this act
240which can be given effect without the invalid provision or
241application, and to this end the provisions of this act are
242severable.
243     Section 3.  This act shall take effect July 1, 2004.


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