SB313: relative to unsolicited commercial electronic mail.

SB 313-FN - AS INTRODUCED

2004 SESSION

04-3004

05/09

SENATE BILL 313-FN

AN ACT relative to unsolicited commercial electronic mail.

SPONSORS: Sen. Cohen, Dist 24; Sen. Sapareto, Dist 19

COMMITTEE: Internal Affairs

ANALYSIS

This bill prohibits unsolicited commercial electronic mail advertising unless the recipient consents or has a business relationship with the sender.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

04-3004

05/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Four

AN ACT relative to unsolicited commercial electronic mail.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Chapter; Unsolicited Commercial Electronic mail. Amend RSA by inserting after chapter 359-E the following new chapter:

CHAPTER 359-F

UNSOLICITED COMMERCIAL ELECTRONIC MAIL

359-F:1 Definitions. In this chapter:

I. "Advertiser" means a person or entity that advertises through the use of commercial electronic mail advertisements.

II. "New Hampshire electronic mail address" means any of the following:

(a) An electronic mail address furnished by an electronic mail service provider that sends bills for furnishing and maintaining that electronic mail address to a mailing address in this state.

(b) An electronic mail address ordinarily accessed from a computer located in this state.

(c) An electronic mail address furnished to a resident of this state.

III. "Commercial electronic mail advertisement" means any electronic mail message initiated for the purpose of advertising or promoting the lease, sale, rental, gift offer, or other disposition of any property, goods, services, or extension of credit.

IV. "Direct consent" means that the recipient has expressly consented to receive electronic mail advertisements from the advertiser, either in response to a clear and conspicuous request for the consent or at the recipient's own initiative.

V. "Initiate" means to transmit or cause to be transmitted a commercial electronic mail advertisement or assist in the transmission of a commercial electronic mail advertisement by providing electronic mail addresses where the advertisement may be sent, but does not include the routine transmission of the advertisement through the network or system of a telecommunications utility or an electronic mail service provider through its network or system.

VI. "Incident" means a single transmission or delivery to a single recipient or to multiple recipients of unsolicited commercial electronic mail advertisement containing substantially similar content.

VII. "Preexisting or current business relationship," as used in connection with the sending of a commercial electronic mail advertisement, means that the recipient has made an inquiry and has provided his or her electronic mail address, or has made an application, purchase, or transaction, with or without consideration, regarding products or services offered by the advertiser.

VIII. "Recipient" means the addressee of an unsolicited commercial electronic mail advertisement. If an addressee of an unsolicited commercial electronic mail advertisement has one or more electronic mail addresses to which an unsolicited commercial electronic mail advertisement is sent, the addressee shall be deemed to be a separate recipient for each electronic mail address to which the electronic mail advertisement is sent.

IX. "Routine transmission" means the transmission, routing, relaying, handling, or storing of an electronic mail message through an automatic technical process. "Routine transmission" shall not include the sending, or the knowing participation in the sending, of unsolicited commercial electronic mail advertisements.

X. "Unsolicited commercial electronic mail advertisement" means a commercial electronic mail advertisement sent to a recipient who meets both of the following criteria:

(a) The recipient has not provided direct consent to receive advertisements from the advertiser.

(b) The recipient does not have a preexisting or current business relationship, as defined in paragraph VII, with the advertiser promoting the lease, sale, rental, gift offer, or other disposition of any property, goods, services, or extension of credit.

359-F:2 Conduct Prohibited.

I. No person or entity shall:

(a) Initiate or advertise in an unsolicited commercial electronic mail advertisement from New Hampshire or advertise in an unsolicited commercial electronic mail advertisement sent from New Hampshire; or

(b) Initiate or advertise in an unsolicited commercial electronic mail advertisement to a New Hampshire electronic mail address, or advertise in an unsolicited commercial electronic mail advertisement sent to a New Hampshire electronic mail address.

II. No person or entity may collect electronic mail addresses posted on the Internet if the purpose of the collection is to engage in the conduct prohibited under paragraph I.

III. No person or entity may use an electronic mail address obtained by using automated means based on a combination of names, letters, or numbers to engage in the conduct prohibited under paragraph I.

IV. No person or entity may use scripts or other automated means to register for multiple electronic mail accounts from which to engage in, or to enable another person to engage in, the conduct prohibited under paragraph I.

359-F:3 Deceptive Conduct Prohibited. It is unlawful for any person or entity to advertise using a commercial electronic mail advertisement either sent from New Hampshire or sent to a New Hampshire electronic mail address under any of the following circumstances:

I. The commercial electronic mail advertisement contains or is accompanied by a third party's domain name without the permission of the third party.

II. The commercial electronic mail advertisement contains or is accompanied by falsified, misrepresented, obscured, or forged header information. This paragraph shall not apply to truthful information used by a third party who has been lawfully authorized by the advertiser to use that information.

III. The commercial electronic mail advertisement has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.

359-F:4 Preexisting or Current Business Relationship; Opt-Out Provision Required. Nothing in this chapter shall prohibit an advertiser from using commercial electronic mail advertisements if the parties have a preexisting or current business relationship, provided that the person or entity who initiates the advertisement provides the recipient with the ability to "opt-out" from receiving further commercial electronic mail advertisements by calling a toll-free telephone number or by sending an "unsubscribe" electronic mail to the advertiser offering the products or services in the commercial electronic mail advertisement.

359-F:5 Applicability. Nothing in this chapter shall be construed to limit or restrict the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, receive, route, relay, handle, or store certain types of electronic mail messages.

359-F:6 Violations. Any violation of this chapter shall constitute an unfair or deceptive act or practice within the meaning of RSA 358-A:2. The exemptions under RSA 358-A:3 shall not apply to this chapter. Except as otherwise provided in this section, any right, remedy, or power set forth in RSA 358-A, including those set forth in RSA 358-A:4, may be used to enforce the provisions of this chapter.

2 Effective Date. This act shall take effect January 1, 2005.

LBAO

04-3004

Revised 2/10/04

SB 313 FISCAL NOTE

AN ACT relative to unsolicited commercial electronic mail.

FISCAL IMPACT:

The Judicial Branch, Judicial Council and Department of Justice have determined this bill will increase state expenditures by an indeterminable amount in FY 2005 and each year thereafter. There will be no fiscal impact on county and local expenditures or state, county and local revenue.

METHODOLOGY:

The Judicial Branch stated this bill adds RSA 359-F to deal with unsolicited commercial electronic mail. For Judicial Branch purposes, the section of interest is proposed RSA 359-F:6, which makes violations of the chapter an unfair or deceptive act or practice within the Consumer Protection Act. Consumer Protection Act claims are often hard-fought and carry with them the potential for enforcement actions by the Attorney General (RSA 358-A:4), criminal prosecution (RSA 358-A:6), and private actions with the potential of up to triple damages (RSA 358-A: 10). The Judicial Branch has no information on which to estimate the potential volume of cases that could arise under the proposed new chapter; however, given the prevalence in modern society of unsolicited commercial e-mail, that volume could be large. One could assume that the Attorney General would exercise discretion to bring enforcement actions and criminal prosecutions in only the most important violations. Nevertheless, incentive does exist for a large number of private actions since damages are a minimum of $1,000 and attorney's fees are recoverable. Thus, the fiscal impact on the Judicial Branch of this bill could be very high. Any fiscal impact to the Judicial Branch will result in increased delays in the processing of other cases.

The Judicial Council states that although this bill does not directly state the offense, for purposes of the fiscal note, it is assumed the new statute would be a misdemeanor offense. Since it is not possible to accurately predict the number of cases that may result from the enactment of this bill, it is likewise not possible to place an exact dollar figure on the potential cost associated with this bill. The Council assumes that all the statutes relating to indigent defense have been properly followed, and that it is likely the case will be assigned to either a public defender or contract attorney, either of whom would be compensated at the fixed rate of $250 per misdemeanor charged. If an assigned counsel attorney must be used due to either conflict of interest or for reasons of caseload limitations, the $60 per hour rate, with a fee cap of $1,000 will be charged. This fee cap may be waived upon motion filed in advance of exceeding the cap and approved by the court. These motions are routinely approved. If "services other than counsel" are approved as an essential component of the defense of the case, these will also be charges against the indigent defense appropriations.

The Department of Justice stated this bill would increase both the work and the cost to the Department by an indeterminable amount.

The Association of Counties has stated this bill will have no fiscal impact on the counties.