05 LC 29
1605-EC
Senate
Bill 62
By:
Senators Shafer of the 48th and Staton of the 18th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
provide for a short title; to provide for legislative findings; to amend Article
6 of Chapter 9 of Title 16 of the Official Code of Georgia Annotated, relating
to computer systems protections, so as to add a new part to create the new crime
of initiation of deceptive commercial e-mail; to provide for definitions; to
provide for criminal penalties; to provide for civil relief and venue for civil
proceedings; to provide for certain prosecuting officials to prosecute deceptive
commercial e-mail; to provide for applicability; to provide for exceptions; to
change provisions relating to the definition of racketeering activity in the
Georgia RICO Act; to provide for related matters; to repeal conflicting laws;
and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
This
Act shall be known and may be cited as the "Georgia Slam Spam E-mail
Act."
SECTION
2.
The
General Assembly finds and declares that electronic mail has become an important
and popular means of communication, relied on by millions of Georgians on a
daily basis for personal and commercial purposes. The low cost and global reach
of electronic mail make it convenient and efficient. Electronic mail serves as a
catalyst for economic development and frictionless commerce. The General
Assembly further finds that the convenience and efficiency of electronic mail is
threatened by an ever-increasing glut of deceptive commercial electronic mail.
The senders of these electronic messages engage in a variety of fraudulent and
deceptive practices to hide their identities, to disguise the true source of
their electronic mail, and to evade the criminal and civil consequences of their
actions. Deceptive commercial electronic mail imposes costs upon its ultimate
recipients who are forced to receive, review, and delete unwanted messages and
upon the electronic mail service providers forced to carry the messages. The
General Assembly further finds that our state has a paramount interest in
protecting its businesses and citizens from the deleterious effects of deceptive
commercial electronic mail, including the impermissible shifting of cost and
economic burden that results from the false and fraudulent nature of deceptive
commercial electronic mail. Georgia´s enforcement of this interest imposes
no additional burden upon the senders of such electronic mails in relation to
the laws of any other state, in that such enforcement requires nothing more than
the senders´ forbearance from active deception.
SECTION
3.
Article
6 of Chapter 9 of Title 16 of the Official Code of Georgia Annotated, relating
to computer systems protection, is amended by striking paragraph (1) of Code
Section 16-9-92, definitions in the "Georgia Computer Systems Protection Act,"
and inserting in lieu thereof the following:
"(1)
'Computer' means an electronic, magnetic, optical,
electrochemical,
or other high-speed data processing device or system performing computer
operations with or on data and includes any data storage facility or
communications facility directly related to or operating in conjunction with
such device; but such term does not include an automated typewriter or
typesetter, portable hand-held calculator, household appliance, or other similar
device that is not used to communicate with or to manipulate any other
computer
hydraulic,
electrochemical, or organic device or group of devices which, pursuant to a
computer program, to human instruction, or to permanent instructions contained
in the device or group of devices, can automatically perform computer operations
with or on computer data and can communicate the results to another computer or
to a person. The term includes any connected or directly related device,
equipment, or facility which enables the computer to store, retrieve, or
communicate computer programs, computer data, or the results of computer
operations to or from a person, another computer, or another device. This term
specifically includes, but is not limited to, mail servers and e-mail networks.
This term does not include a device that is not used to communicate with or to
manipulate any other
computer."
SECTION
4.
Said
article is further amended by designating the existing matter thereof as Part 1
and by adding a new part to the end of the article to read as
follows:
"Part
2
16-9-100.
As
used in this part, the term:
(1)
'Advertiser' means a person or entity that advertises through the use of
commercial e-mail.
(2)
'Commercial e-mail' means any e-mail message initiated for the purpose of
advertising or promoting the lease, sale, rental, gift, offer, or other
disposition of any property, services, or extension of credit.
(3)
'Direct consent' means that the recipient has expressly consented to receive
e-mail advertisements from the advertiser or initiator, either in response to a
clear and conspicuous request for direct consent or at the recipient´s own
initiative.
(4)
'Domain' means any alphanumeric designation which is registered with or assigned
by any domain name registrar, domain name registry, or other domain name
registration authority as part of an electronic address on the
Internet.
(5)
'Domain owner' means, in relation to an e-mail address, the actual owner at the
time an e-mail is received at that address of a domain that appears in or
comprises a portion of the e-mail address. The registrant of a domain is
presumed to be the actual owner of that domain.
(6)
'E-mail' means an electronic message that is sent to an e-mail address and
transmitted between two or more telecommunications devices, computers, or
electronic devices capable of receiving electronic messages, whether or not the
message is converted to hard copy format after receipt, viewed upon
transmission, or stored for later retrieval. The term includes electronic
messages that are transmitted through a local, regional, or global computer
network.
(7)
'E-mail address' means a destination, commonly expressed as a string of
characters, to which e-mail can be sent or delivered. An e-mail address consists
of a user name or mailbox, the '@' symbol, and reference to a
domain.
(8)
'E-mail service provider' means any person, including an Internet service
provider, that is an intermediary in sending or receiving e-mail or that
provides to end-users of the e-mail service the ability to send or receive
e-mail.
(9)
'False or misleading,' when used in relation to a commercial e-mail, means
that:
(A)
The header information includes an originating or intermediate e-mail address,
domain name, or Internet protocol address which was obtained by means of false
or fraudulent pretenses or representations;
(B)
The header information fails to accurately identify the computer used to
initiate the e-mail;
(C)
The subject line of the e-mail is likely to mislead a recipient about a material
fact regarding the content or subject matter of the e-mail;
(D)
The header information is altered or modified in a manner that impedes or
precludes the recipient of the e-mail or an e-mail service provider from
identifying, locating, or contacting the person who initiated the
e-mail;
(E)
The header information or content of the commercial e-mail, without
authorization and with intent to mislead, references a personal name, entity
name, trade name, mark, domain, address, phone number, or other personally
identifying information belonging to a third party in such manner as would cause
a recipient to believe that the third party authorized, endorsed, sponsored,
sent, or was otherwise involved in the transmission of the commercial
e-mail;
(F)
The header information or content of the commercial e-mail contains false or
fraudulent information regarding the identity, location, or means of contacting
the initiator of the commercial e-mail; or
(G)
The commercial e-mail falsely or erroneously states or represents that the
transmission of the e-mail was authorized on the basis of:
(i)
The recipient´s prior direct consent to receive the commercial e-mail; or
(ii)
A preexisting or current business relationship between the recipient and either
the initiator or advertiser.
(10)
'Header information' means those portions of an e-mail message which designate
or otherwise identify:
(A)
The sender;
(B)
All recipients;
(C)
An alternative return e-mail address, if any; and
(D)
The names or Internet protocol addresses of the computers, systems, or other
means used to send, transmit, route, or receive the e-mail message.
The
term does not include either the subject line or the content of an e-mail
message.
(11)
'Incident' means the contemporaneous initiation in violation of this part of one
or more commercial e-mails containing substantially similar
content.
(12)
'Initiate' or 'initiator' means to transmit or cause to be transmitted a
commercial e-mail, but does not include the routine transmission of an
advertisement through the network or system of a telecommunications utility or
an e-mail service provider.
(13)
'Internet protocol address' means the unique numerical address assigned to and
used to identify a specific computer or computer network that is directly
connected to the Internet.
(14)
'Minor' means any person under the age of 18 years.
(15)
'Person' means a person as defined by Code Section 16-1-3 and specifically
includes any limited liability company, trust, joint venture, or other legally
cognizable entity.
(16)
'Preexisting or current business relationship,' as used in connection with the
sending of a commercial e-mail, means that the recipient has made an inquiry and
has provided his or her e-mail address, or has made an application, purchase, or
transaction, with or without consideration, regarding products or services
offered by the advertiser.
(17)
'Protected computer' means any computer that, at the time of an alleged
violation of any provision of this part involving that computer, was located
within the geographic boundaries of the State of Georgia.
(18)
'Recipient' means any addressee of a commercial e-mail advertisement. If an
addressee of a commercial e-mail has one or more e-mail addresses to which a
commercial e-mail is sent, the addressee shall be deemed to be a separate
recipient for each e-mail address to which the e-mail is sent.
(19)
'Routine transmission' means the forwarding, routing, relaying, handling, or
storing of an e-mail message through an automatic technical process. The term
shall not include the sending, or the knowing participation in the sending, of
commercial e-mail advertisements.
16-9-101.
Any
person who initiates a commercial e-mail that the person knew or should have
known to be false or misleading that is sent from, passes through, or is
received by a protected computer shall be guilty of the crime of initiation of
deceptive commercial e-mail.
16-9-102.
(a)
Any person convicted of a violation of Code Section 16-9-101 shall be guilty of
a misdemeanor and punished by a fine of not more than $1,000.00 or by
imprisonment of not more than 12 months, or both, except:
(1)
Where the volume of commercial e-mail transmitted exceeded 10,000 attempted
recipients in any 24 hour period;
(2)
Where the volume of commercial e-mail transmitted exceeded 100,000 attempted
recipients in any 30 day period;
(3)
Where the volume of commercial e-mail transmitted exceeded one million attempted
recipients in any one-year period;
(4)
Where the revenue generated from a specific commercial e-mail exceeded
$1,000.00;
(5)
Where the total revenue generated from all commercial e-mail transmitted to any
e-mail service provider or its subscribers exceeded $50,000.00; or
(6)
Where any person knowingly hires, employs, uses, or permits any minor to assist
in the transmission of commercial e-mail in violation of Code Section
16-9-101,
the
person shall be guilty of a felony and punished by a fine of not more than
$50,000.00 or by imprisonment of not more than five years, or both.
(b)
For the second conviction of Code Section 16-9-101 within a five-year period, as
measured from the dates of previous arrests for which convictions were obtained
to the date of the current arrest for which a conviction is obtained, the person
shall be guilty of a felony and punished by a fine of not more than $50,000.00
or by imprisonment of not more than five years, or both. For the purpose of this
subsection, the term 'conviction' shall include a plea of nolo
contendere.
16-9-103.
For
the purpose of venue under this part, any violation of this part shall be
considered to have been committed:
(1)
In the county of the principal place of business in this state of the owner of
an involved protected computer, computer network, or any part
thereof;
(2)
In any county in which any person alleged to have violated any provision of this
part had control or possession of any proceeds of the violation or of any books,
records, documents, or property which were used in furtherance of the
violation;
(3)
In any county in which any act was performed in furtherance of any transaction
which violated this part; and
(4)
In any county from which, to which, or through which any use of an involved
protected computer or computer network was made, whether by wires,
electromagnetic waves, microwaves, or any other means of
communication.
16-9-104.
The
Attorney General shall have concurrent jurisdiction with the district attorneys
and solicitors-general to conduct the criminal prosecution of violations of this
part.
16-9-105.
(a)
The following persons shall have standing to assert a civil action under this
part:
(1)
Any e-mail service provider whose protected computer was used to send, receive,
or transmit an e-mail that was sent in violation of this part; and
(2)
A domain owner of any e-mail address to which a deceptive commercial e-mail is
sent in violation of this part, provided that the domain owner also owns a
protected computer at which the e-mail was received.
(b)
Any person who suffers personal, property, or economic damage by reason of a
violation of any provision of this part may initiate a civil action for and
recover the greater of:
(1)
Five thousand dollars plus expenses of litigation and reasonable attorney´s
fees;
(2)
Liquidated damages of $1,000.00 for each offending commercial e-mail, up to a
limit of $2 million per incident, plus expenses of litigation and reasonable
attorney´s fees; or
(3)
Actual damages, plus expenses of litigation and reasonable attorney´s
fees.
16-9-106.
(a)
Any crime committed in violation of this part shall be considered a separate
offense.
(b)
The provisions of this part shall not be construed as limiting or precluding the
application of any other provision of law which applies to any transaction or
course of conduct which violates this part.
(c)
Nothing in this part shall be construed to limit or restrict the adoption,
implementation, or enforcement by an e-mail service provider or Internet service
provider of a policy of declining to transmit, receive, route, relay, handle, or
store certain types of e-mail.
16-9-107.
There
shall be no cause of action under this part against an e-mail service provider
on the basis of its routine transmission of any commercial e-mail over its
computer
network."
SECTION
5.
Said
title is further amended in Code Section 16-14-3, relating to definitions
relative to the "Georgia RICO (Racketeer Influenced and Corrupt Organizations)
Act," by striking the word "or" at the end of division (9)(A)(xxxvii), by
striking the symbol "." at the end of division (9)(A)(xxxviii) and inserting in
lieu thereof the symbol and word "; or", and by adding a new division
(9)(A)(xxxix) to read as follows:
"(xxxix)
Code Section 16-9-101, relating to deceptive commercial
e-mail."
SECTION
6.
All
laws and parts of laws in conflict with this Act are repealed.