Introduced Version






HOUSE BILL No. 1963

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 24-4.7-3-6 ; IC 24-4.9; IC 34-30-2-96.5.

Synopsis: Unsolicited electronic mail. Requires the attorney general to establish a list of electronic mail addresses of persons who request not to receive commercial or charitable solicitations by electronic mail. Provides that a person may not send a commercial or charitable solicitation by electronic mail to an electronic mail address on the list. Authorizes the attorney general to seek civil remedies for violations. Provides immunity to an interactive computer service from actions for blocking electronic mail that violates the statute. Changes the name of the telephone solicitation fund.

Effective: July 1, 2003.





Thompson




    January 23, 2003, read first time and referred to Committee on Technology, Research and Development.







Introduced

First Regular Session 113th General Assembly (2003)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
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HOUSE BILL No. 1963



    A BILL FOR AN ACT to amend the Indiana Code concerning trade regulation.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 24-4.7-3-6; (03)IN1963.1.1. -->     SECTION 1. IC 24-4.7-3-6 , AS ADDED BY P.L.189-2001, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2003]: Sec. 6. (a) The consumer protection division telephone consumer protection solicitation fund is established for the purpose of the administration of this article and IC 24-4.9. The fund shall be used exclusively for this purpose.
    (b) The division shall administer the fund.
    (c) The division shall deposit all revenue received under this article or under IC 24-4.9 in the fund.
    (d) Money in the fund is continuously appropriated to the division for the administration of this article.
    (e) Money in the fund at the end of a state fiscal year does not revert to the state general fund. However, if the amount of money in the fund at the end of a particular state fiscal year exceeds two hundred thousand dollars ($200,000), the treasurer of state shall transfer the excess from the fund to the state general fund.
SOURCE: IC 24-4.9; (03)IN1963.1.2. -->     SECTION 2. IC 24-4.9 IS ADDED TO THE INDIANA CODE AS

A NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2003]:
     ARTICLE 4.9. ELECTRONIC MAIL SOLICITATION OF CONSUMERS
    Chapter 1. General Provisions
    Sec. 1. This article does not apply to any of the following:
        (1) An electronic mail message sent in response to an express request of the person to whom the electronic mail message is sent.
        (2) An electronic mail message sent primarily in connection with an existing debt or contract for which payment or performance has not been completed at the time the message is sent.
        (3) An electronic mail message sent on behalf of a charitable organization that is exempt from federal income taxation under Section 501 of the Internal Revenue Code, but only if all the following apply:
            (A) The electronic mail message is sent by a volunteer or an employee of the charitable organization.
            (B) The electronic mail message discloses all the following information upon making contact with the consumer:
                (i) The true first and last name of the individual sending the electronic mail message.
                (ii) The name, address, and electronic mail address of the charitable organization.
        (4) An electronic mail message sent by an individual licensed under IC 25-34.1 if:
            (A) the sale of goods or services is not completed; and
            (B) payment or authorization of payment is not required;
        until after a face to face sales presentation by the seller.
        (5) An electronic mail message sent by an individual licensed under IC 27-1-15.5 when the individual is soliciting an application for insurance or negotiating a policy of insurance on behalf of an insurer (as defined in IC 27-1-2-3 ).
        (6) An electronic mail message sent soliciting the sale of a newspaper of general circulation, but only if the electronic mail message is sent by a volunteer or an employee of the newspaper.
    Chapter 2. Definitions
    Sec. 1. The definitions in this chapter apply throughout this article.
    Sec. 2. "Assist the transmission" means to provide substantial

assistance or support that enables a person to formulate, compose, send, originate, initiate, or transmit a commercial electronic mail message when the person providing the assistance knows or consciously avoids knowing that the initiator of the commercial electronic mail message is engaged, or intends to engage, in a practice that violates this article.
    Sec. 3. (a) "Commercial electronic mail message" refers to an electronic mail message sent for any of the following purposes:
        (1) Promoting the sale or lease of real property, goods, or services.
        (2) Soliciting a donation to a charitable organization and the electronic mail message does not satisfy IC 24-4.9-1-1 (3).
        (3) Obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.
    (b) The term does not include an electronic mail message to which an interactive computer service provider has attached an advertisement in exchange for free use of an electronic mail account, if the sender has agreed to such an arrangement.
    Sec. 4. "Consumer" means a person with an electronic mail address who is an actual or a prospective:
        (1) purchaser, lessee, or recipient of consumer goods or services; or
        (2) donor to a charitable organization.
    Sec. 5. "Consumer goods or services" means any of the following:
        (1) Tangible or intangible personal property or real property that is normally used for personal, family, or household purposes.
        (2) Property intended to be attached to or installed on real property without regard to whether it is attached or installed.
        (3) Services related to property described in subdivision (1) or (2).
        (4) Credit cards or the extension of credit.
    Sec. 6. "Division" refers to the consumer protection division of the office of the attorney general.
    Sec. 7. "Doing business in Indiana" means sending a commercial electronic mail message to consumers located in Indiana, whether the electronic mail message is sent from a location in Indiana or outside Indiana.
    Sec. 8. "Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic

mail may be sent or delivered.
    Sec. 9. "Electronic mail solicitor" means an individual, a firm, an organization, a partnership, an association, or a corporation, including affiliates and subsidiaries, doing business in Indiana.
    Sec. 10. "Fund" refers to the consumer protection division consumer protection solicitation fund established by IC 24-4.7-3-6.
    Sec. 11. (a) "Initiate the transmission" refers to the action by the original sender of an electronic mail message.
    (b) The term does not include an action by any intervening interactive computer service that may handle or retransmit the message.
    Sec. 12. (a) "Interactive computer service" means an information service, a system, or an access software provider that provides or enables computer access to a computer server by multiple users.
    (b) The term includes the following:
        (1) A service or system that provides access to the Internet.
        (2) A system operated or services offered by a library, a school, a state educational institution (as defined in IC 20-12-0.5-1 ), or a private college or university.
    Sec. 13. "Internet domain name" refers to a globally unique, hierarchical reference to an Internet host or service, assigned through centralized Internet naming authorities, comprising a series of character strings separated by periods, with the rightmost string specifying the top of the hierarchy.
    Sec. 14. "Listing" refers to the no electronic mail solicitation listing published by the division under IC 24-4.9-3 that lists the names of persons who do not wish to receive commercial electronic mail messages.
    Chapter 3. Duties of the Division
    Sec. 1. (a) The division shall establish, maintain, and publish a listing of electronic mail addresses of Indiana consumers who request not to be solicited by electronic mail as provided in this chapter.
    (b) A consumer's electronic mail address shall be placed on the listing if the consumer requests to be added to the listing according to a procedure approved by the division.
    (c) The listing shall be updated upon receipt of a request from a consumer.
    (d) The division shall publish the listing on the computer gateway administered by the intelenet commission under IC 5-21-2.
    Sec. 2. The division shall investigate complaints received

concerning violations of this article.
    Sec. 3. The division shall notify Indiana residents of the rights and duties created by this article.
    Sec. 4. The division may adopt rules under IC 4-22-2 to implement this article.
    Chapter 4. Transmission of Commercial Electronic Mail
    Sec. 1. A person may not initiate the transmission of, conspire with another to initiate the transmission of, or assist the transmission of a commercial electronic mail message to an electronic mail address on the most current listing.
    Sec. 2. (a) An interactive computer service may, upon its own initiative, block the receipt or transmission through its service of a commercial electronic mail message that it reasonably believes is, or will be, sent in violation of this chapter.
    (b) An interactive computer service is not liable for any action voluntarily taken in good faith to block the receipt or transmission through its service of any commercial electronic mail message that it reasonably believes is, or will be, sent in violation of this chapter.
    Chapter 5. Civil Remedies

     Sec. 1. An electronic mail solicitor who violates IC 24-4.9-4 commits an act that is actionable by the attorney general under this chapter.
    Sec. 2. In an action under this chapter, the attorney general may obtain any or all of the following:
        (1) An injunction to enjoin future violations of IC 24-4.9-4.
        (2) A civil penalty of not more than the following:
            (A) Ten thousand dollars ($10,000) for the first violation of IC 24-4.9-4.
            (B) Twenty-five thousand dollars ($25,000) for each violation after the first violation.
        For purposes of this subdivision, each electronic mail message sent in violation of IC 24-4.9-4 is considered a separate violation.
        (3) The attorney general's reasonable costs in:
            (A) the investigation; and
            (B) maintaining the action.
        (4) Reasonable attorney's fees.
        (5) Costs of the action.
    Sec. 3. An action brought under this chapter may not be brought more than two (2) years after the date the electronic mail message complained about was sent.
    Sec. 4. An action under this chapter may be brought in the

circuit or superior court of Marion County.
    Sec. 5. The attorney general may employ counsel to represent the state in an action under this chapter.

SOURCE: IC 34-30-2-96.5; (03)IN1963.1.3. -->     SECTION 3. IC 34-30-2-96.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2003]: Sec. 96.5. IC 24-4.9-4-2 (Concerning the action of an interactive computer service in blocking the receipt or transmission of certain electronic mail messages).