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Senate Bill 2368

Senate Bill sb2368

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004                                  SB 2368

    By Senator Posey





    24-1887-04

  1                      A bill to be entitled

  2         An act relating to commercial electronic

  3         messages; providing definitions; prohibiting a

  4         person from transmitting a commercial

  5         electronic mail message that uses a third

  6         party's Internet domain name without permission

  7         or a message that contains false or misleading

  8         information; prohibiting a person from

  9         transmitting an unsolicited commercial

10         electronic mail message without the use of the

11         characters "ADV:" in the subject line or

12         without providing a mechanism allowing

13         recipients to easily remove themselves from the

14         sender's electronic mailing address list at no

15         cost; providing damages and an award for

16         attorney's fees and costs to an injured party

17         for violation of the act; providing the

18         electronic mail service provider immunity from

19         liability; providing an injured electronic mail

20         service provider an award of attorney's fees

21         and costs and, in lieu of actual damages, if

22         the provider so chooses, the greater of $10 for

23         each unsolicited commercial electronic mail

24         message transmitted or $25,000 per day;

25         providing an effective date.

26  

27  Be It Enacted by the Legislature of the State of Florida:

28  

29         Section 1.  Definitions.--As used in this act, the

30  term:

31  

                                  1

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    Florida Senate - 2004                                  SB 2368
    24-1887-04




 1         (1)  "Commercial electronic mail message" means an

 2  electronic mail message sent for the purpose of encouraging

 3  the purchase or rental of, or investment in, property, goods,

 4  or services.

 5         (2)  "Electronic mail" means an electronic message or

 6  computer file containing an image of a message that is

 7  transmitted between two or more computer or electronic

 8  terminals and includes electronic messages that are

 9  transmitted within or between computer networks.

10         (3)  "Electronic mail service provider" means any

11  person who is an intermediary in sending or receiving

12  electronic mail and provides to end-users of electronic mail

13  services the ability to send or receive electronic mail.

14         (4)  "Established business relationship" means a prior

15  or existing relationship formed by a voluntary communication

16  between a person or entity and the recipient with or without

17  an exchange of consideration, on the basis of an inquiry,

18  application, purchase, or use by the recipient regarding

19  products or services offered by the person or entity.

20         (5)  "Unsolicited commercial electronic mail message"

21  means a commercial electronic mail message sent without the

22  consent of the recipient by a person with whom the recipient

23  does not have an established business relationship.

24         (6)  "Unsolicited commercial electronic mail message"

25  does not include electronic mail messages if the sender:

26         (a)  Is an organization using electronic mail to

27  communicate exclusively with its members;

28         (b)  Is an organization using electronic mail to

29  communicate exclusively with its employees or contractors, or

30  both;

31         (c)  Has the consent of the recipient; or

                                  2

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    Florida Senate - 2004                                  SB 2368
    24-1887-04




 1         (d)  Has an established business relationship with the

 2  recipient, as defined in subsection (4).

 3         Section 2.  Prohibitions.--

 4         (1)  It is a violation of this act for any person to

 5  transmit a commercial electronic mail message that:

 6         (a)  Falsifies electronic mail transmission information

 7  or other routing information for the unsolicited commercial

 8  electronic message; or

 9         (b)  Contains false or misleading information in the

10  subject lines.

11         (2)  It is a violation of this act for any person that

12  sends a commercial electronic mail message to use a third

13  party's Internet address or domain name without the third

14  party's consent for the purpose of transmitting electronic

15  mail in a way that makes it appear that the third party was

16  the sender of such mail.

17         (3)  It is a violation of this act for any person that

18  sends an unsolicited commercial electronic mail message to

19  fail to use the exact characters "ADV:" (the capital letters

20  "A," "D," and "V," in that order, followed immediately by a

21  colon) as the first four characters in the subject line of an

22  unsolicited commercial electronic mail message.

23         (4)  It is a violation of this act for any person that

24  sends an unsolicited commercial electronic mail message to

25  fail to provide a mechanism allowing recipients to easily and

26  at no cost remove themselves from the sender's electronic mail

27  address lists so that they are not included in future

28  mailings.

29         Section 3.  Civil relief; damages.--

30         (1)  Any person whose property or person is injured by

31  reason of a violation of any provision of this act may recover

                                  3

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    Florida Senate - 2004                                  SB 2368
    24-1887-04




 1  any damages sustained and the costs of the suit. Without

 2  limiting the generality of the term, "damages" includes loss

 3  of profits.

 4         (2)  If the injury arises from the transmission of

 5  unsolicited or commercial electronic mail messages, the

 6  injured person, other than an electronic mail service

 7  provider, may also recover attorney's fees and costs, and may

 8  elect, in lieu of actual damages, to recover the lesser of $10

 9  for each unsolicited commercial electronic mail message

10  transmitted in violation of this act, or $25,000 per day. The

11  injured person does not have a cause of action against the

12  electronic mail service provider that merely transmits the

13  unsolicited commercial electronic mail message over its

14  computer network.

15         (3)  If the injury arises from the transmission of

16  unsolicited or commercial electronic mail messages, an injured

17  electronic mail service provider may also recover attorney's

18  fees and costs, and may elect, in lieu of actual damages, to

19  recover the greater of $10 for each unsolicited commercial

20  electronic mail message transmitted in violation of this act,

21  or $25,000 per day.

22         (4)  At the request of any party to an action brought

23  under this act, the court may conduct all legal proceedings in

24  a way that protects the secrecy and security of the computer,

25  computer network, computer data, computer program, and

26  computer software involved in order to prevent possible

27  recurrence of the same or a similar act by another person and

28  to protect any trade secrets of any party.

29         (5)  An electronic mail service provider does not

30  violate this act and the injured party does not have a cause

31  

                                  4

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    Florida Senate - 2004                                  SB 2368
    24-1887-04




 1  of action against an electronic mail service provider due to

 2  the fact that the provider:

 3         (a)  Is an intermediary between the sender and the

 4  recipient in the transmission of a commercial electronic mail

 5  message that violates this act; or

 6         (b)  Provides transmission of unsolicited commercial

 7  electronic mail messages over the provider's computer network

 8  or facilities or voluntarily takes action in good faith to

 9  block the receipt or transmission through its service of any

10  electronic mail advertisements that it believes is, or will be

11  sent, in violation of this act.

12         Section 4.  This act shall take effect July 1, 2004.

13  

14            *****************************************

15                          SENATE SUMMARY

16    Prohibits a person from transmitting a commercial
      electronic mail message that uses a third party's
17    Internet domain name without permission or a message that
      contains false or misleading information. Prohibits a
18    person from transmitting an unsolicited commercial
      electronic mail message without the use of the characters
19    "ADV:" in the subject line or without providing a
      mechanism allowing recipients to easily remove themselves
20    from the sender's electronic mailing address list at no
      cost. Provides damages and an award for attorney's fees
21    and costs to an injured party for violation of the act.
      Provides the electronic mail service provider immunity
22    from liability. Provides an injured electronic mail
      service provider an award of attorney's fees and costs,
23    and in lieu of actual damages, if the provider so
      chooses, the greater of $10 for each unsolicited
24    commercial electronic mail message transmitted or $25,000
      per day. (See bill for details.)
25  

26  

27  

28  

29  

30  

31  

                                  5

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