Report Title:
Crimes; Commercial Electronic Mail
Description:
Establishes the crime of abuse of commercial electronic mail, provides penalties, civil remedies, and a defense to the offense. Permits forfeiture of proceeds of computer crime.
|
HOUSE OF REPRESENTATIVES |
H.B. NO. |
1115 |
|
TWENTY-THIRD LEGISLATURE, 2005 |
||
|
STATE OF HAWAII |
||
|
|
A BILL FOR AN ACT
RELATING TO ELECTRONIC COMMERCE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 708, Hawaii Revised Statutes, is amended by adding three new sections to part IX to be appropriately designated and to read as follows:
"§708-A Abuse of commercial electronic mail. (1) A person commits the offense of abuse of electronic mail if the person intentionally or knowingly:
(a) Uses a protected computer of another to relay or retransmit multiple commercial electronic mail messages with the intent to deceive or mislead recipients or an electronic mail service provider as to the origin of the message;
(b) Materially falsifies header information in multiple commercial electronic mail messages and intentionally initiates the transmission of the messages;
(c) Registers, using information that materially falsifies the identity of the actual registrant, for fifteen or more electronic mail accounts or on-line user accounts or two or more domain names and intentionally initiates the transmission of multiple commercial electronic mail messages from one or any combination of accounts or domain names;
(d) Falsely represents the right to use five or more internet protocol addresses and intentionally initiates the transmission of multiple commercial electronic mail messages from the internet protocol addresses;
(e) Accesses a protected computer of another without authorization and intentionally initiates the transmission of multiple electronic mail advertisements from or through the protected computer;
(f) Violates subsection (1)(a), (1)(b), (1)(c), (1)(d), or (1)(e) by providing or selecting addresses to which a message was transmitted, knowing that:
(i) The electronic mail addresses of the recipients were obtained using an automated means from an internet website or proprietary online service operated by another person; and
(ii) The website or online service included, at the time the addresses were obtained, a notice stating that the operator of the website or online service will not transfer addresses maintained by the website or online service to any other party for the purposes of initiating or enabling others to initiate electronic mail messages; or
(g) Violates subsection (1)(a), (1)(b), (1)(c), (1)(d), or (1)(e) by providing or selecting electronic mail addresses of recipients obtained using an automated means that generates possible electronic mail addresses by combining names, letters, or numbers into numerous permutations.
(2) A person who violates this section shall be guilty of an offense as follows:
(a) A person who violates subsection (1)(a), (1)(b), (1)(c), (1)(d), or (1)(e), except as otherwise provided in this subsection, shall be guilty of a misdemeanor;
(b) A person who violates subsection (1)(a), (1)(b), (1)(c), (1)(d), or (1)(e) involving the transmission of more than two hundred fifty commercial electronic mail messages during a twenty-four-hour period, two thousand five hundred commercial electronic mail messages during any thirty-day period, or twenty-five thousand commercial electronic mail messages during any one-year period shall be guilty of a class C felony;
(c) A person who violates subsection (1)(c) involving twenty or more electronic mail accounts or ten or more domain names and intentionally initiates the transmission of multiple commercial electronic mail messages from the accounts or using the domain names shall be guilty of a class C felony;
(d) A person who commits a violation of subsection (1)(a), (1)(b), (1)(c), (1)(d), or (1)(e) that causes a loss of $500 or more during any one-year period shall be guilty of a misdemeanor;
(e) A person who violates subsection (1)(a), (1)(b), (1)(c), (1)(d), or (1)(e) in concert with three or more other persons as the leader or organizer of the action that constitutes the violation shall be guilty of a class C felony;
(f) Except as provided in section 708-893, a person who violates subsection (1)(a), (1)(b), (1)(c), (1)(d), or (1)(e) in furtherance of a felony, or who has previously been convicted of an offense under the laws of this State, another state, or under any federal law involving the transmission of multiple commercial electronic mail messages shall be guilty of a class B felony; and
(g) A person who violates subsection (1)(f) or (1)(g) shall be guilty of a misdemeanor.
§708-B Defense to abuse of electronic mail. It is a defense to prosecution for abuse of electronic mail that the defendant was an electronic mail service provider that had adopted, implemented, or enforced a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages under any other provision of law.
§708-C Civil remedies. (1) The attorney general may institute a civil action against a person who violates section 708-A to recover a civil penalty not exceeding:
(a) $25,000 per day of violation; or
(b) Not less than $2 nor more than $8 per commercial electronic mail message initiated in violation of section 708-A.
(2) The attorney general may seek an injunction in a civil action to prohibit a person who has engaged in or is engaged in a violation of section 708-A from engaging in the violation."
SECTION 2. Section 708-890, Hawaii Revised Statutes, is amended by inserting twelve new definitions to be appropriately inserted and to read as follows:
""Commercial electronic mail message" means an electronic message sent primarily for the purpose of commercial advertisement or promotion of a commercial product, a commercial service, the content on an internet website, or a website operated for a commercial purpose.
"Domain name" means any alphanumeric designation that is registered with or assigned by a domain name registrar, domain name registry, or other domain name registration authority as part of an electronic mail address on the internet.
"Electronic mail service provider" means any person, including an internet service provider, that is an intermediary in sending and receiving electronic mail and that provides to the public the ability to send or receive electronic mail to or from an electronic mail account or online user account.
"Financial institution" has the same meaning as provided in 412:1-109.
"Header information" means the source, destination, and routing information attached to an electronic mail message, including the originating domain name and originating electronic mail address, and any other information that appears in the line identifying or purporting to identify a person initiating the message, and technical information that authenticates the sender of an electronic mail message for network security or network management purposes.
"Initiate" means to originate or transmit the message or to procure the origination or transmission of the message and does not include actions that constitute routine conveyance of the message.
"Internet" means the international computer network of both federal and nonfederal interoperable packet switched data networks.
"Internet protocol address" means the string of numbers by which a location on the internet is identified by routers or other computers connected to the internet.
"Materially falsified" means altered or concealed in a manner that would impair the ability of one of the following to identify, locate, or respond to a person who initiated an electronic mail message:
(1) A recipient of the message;
(2) An internet access service processing the message on behalf of a recipient;
(3) A person alleging a violation of this section; or
(4) A law enforcement agency.
"Multiple" means:
(1) More than ten commercial electronic mail messages during a twenty-four-hour period;
(2) More than one hundred commercial electronic mail messages during a thirty-day period; or
(3) More than one thousand commercial electronic mail messages during a one-year period.
"Protected computer" means a computer used in intrastate or interstate communication.
"Routine conveyance" means the transmission, routing, relaying, handling, or storing, through an automatic technical process, of an electronic mail message for which another person has identified the recipients or provided the recipient addresses."
SECTION 3. Section 708-894, Hawaii Revised Statutes, is amended to read as follows:
"[[]§708-894[]] Forfeiture of property used in computer crimes. Any property used or intended for use in or that constitutes proceeds derived from the commission of, attempt to commit, or conspiracy to commit an offense under this part, or which facilitated or assisted such activity, shall be forfeited subject to the requirements of chapter 712A."
SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.
SECTION 5. In codifying the new sections added by section 1 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.
SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 7. This Act shall take effect upon its approval.
|
INTRODUCED BY: |
_____________________________ |