House Bill text for HB1258

HOUSE BILL 1258

48th legislature - STATE OF NEW MEXICO - first session, 2007

INTRODUCED BY

Jane E. Powdrell-Culbert

AN ACT

RELATING TO TRADE PRACTICES; ENACTING THE ANTI-SPAM ACT; PROHIBITING UNSOLICITED COMMERCIAL EMAIL; PROVIDING FOR ENFORCEMENT; PROVIDING FOR PENALTIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.--This act may be cited as the "Anti-Spam Act".

Section 2. DEFINITIONS.--As used in the Anti-Spam Act:

A. "domain name" means any alphanumeric designation that is registered with or assigned by any domain name registrar as part of an electronic address on the internet;

B. "electronic mail advertisement" or "email advertisement" means any electronic mail message, the principal purpose of which is to promote the sale or distribution of goods or services to the recipients;

C. "electronic mail service provider" or "email service provider" means any business or organization qualified to do business in New Mexico that provides registered users the ability to send or receive electronic mail through equipment located in this state and that is an intermediary in sending or receiving electronic mail or is hired to send electronic mail for a company or organization or any person, including an internet service provider, that is an intermediary in sending or receiving electronic mail or that provides to end users of the electronic mail service the ability to send or receive electronic mail;

D. "electronic mail" or "email" means an electronic message that is sent to an email 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. "Electronic mail" or "email" includes electronic messages that are transmitted through a local, regional or global computer network;

E. "electronic mail address" or "email address" means a destination, commonly expressed as a string of characters, to which electronic mail can be sent or delivered. An "electronic mail address" or "email address" consists of a user name or mailbox and a reference to an internet domain;

F. "explicit sexual material" means any of the following:

(1) offers for pornographic material that is for sale or free;

(2) offers for escort services that are for sale;

(3) live web cameras designated for sexual services;

(4) adult night clubs;

(5) pornographic images or videos; or

(6) sexual performance or sexual enhancing devices, procedures, equipment, drugs, vitamins or supplements;

G. "initiate" means to transmit or cause to be transmitted an email advertisement or to assist in the transmission of an email advertisement by providing email 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 email service provider through its network or system;

H. "initiation" of an unsolicited email advertisement refers to the action by the initial sender of the email advertisement. It does not refer to the actions of any intervening email service provider that may handle or retransmit the electronic message;

I. "incident" means a single transmission or delivery to a single recipient or to multiple recipients of an unsolicited commercial email advertisement containing substantially similar content;

J. "preexisting or current business relationship" means that the recipient has made an inquiry, joined a membership, nonprofit organization or club and has provided the recipient's email address or has made an application, purchase or transaction, with or without consideration, regarding products or services offered by the advertiser;

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

L. "registered user" means an individual, corporation or other entity that maintains an email address with an electronic mail service provider;

M. "routine transmission" means the transmission, routing, relaying, handling or storing of an email message through an automatic technical process but does not include the sending, or the knowing participation in the sending, of unsolicited commercial email advertisements;

N. "unsolicited commercial email advertisement" means a commercial email advertisement sent to a recipient who meets both of the following criteria:

(1) the recipient has not provided direct consent to receive advertisements from the advertiser such as from a sold mailing list; and

(2) the recipient does not have a preexisting or current business relationship with the advertiser promoting the lease, sale, rental, gift offer or other disposition of any property, goods, services, money exchanges and transfers or extension of credit.

Section 3. OBSCENE AND OTHER SEXUAL MATERIALS AND PERFORMANCES.--

A. No person knowing the content of the advertisement to be explicit sexual materials shall transmit or cause to be transmitted an unsolicited advertisement in an electronic communication to one or more persons within this state that contains explicit sexual materials without including in the advertisement the term "ADV-ADULT" at the beginning of the subject line of the advertisement.

B. Any person who violates Subsection A of this section and attempts to avoid prosecution by knowingly including false or misleading information in the return address portion of the electronic communication such that the recipient would be unable to send a reply message to the original, authentic sender shall, in addition to any other penalty imposed, upon conviction, be sentenced to pay a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) per message or imprisonment for not more than ninety days, or both, for a first offense and a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) or imprisonment for not more than one year, or both, for a second or subsequent offense.

Section 4. PROVISIONS.--

A. Notwithstanding any other provision of law, a person or entity may not do any of the following:

(1) initiate or advertise in an unsolicited commercial email advertisement from New Mexico or advertise in an unsolicited commercial email advertisement sent from New Mexico; or

(2) initiate or advertise in an unsolicited commercial email advertisement to a New Mexico email address, or advertise in an unsolicited commercial email advertisement sent to a New Mexico email address.

B. Commercial email advertisements sent in the context of preexisting or current business relationships shall provide the recipient of the commercial email advertisement with the ability to "opt-out" from receiving further commercial email advertisements. This opt-out provision does not apply to recipients who are receiving free email service with regard to commercial email advertisements sent by the provider of the email service.

Section 5. LIMITS AND RESTRICTIONS.--Nothing in the Anti-Spam Act 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 email messages.

Section 6. DATA MINING.--

A. It is unlawful for any person or entity to collect email addresses posted on the internet if the purpose of the collection is for the email addresses to be used for the following:

(1) initiate or advertise in an unsolicited commercial email advertisement from New Mexico or advertise in an unsolicited commercial email advertisement sent from New Mexico; or

(2) initiate or advertise in an unsolicited commercial email advertisement to a New Mexico email address or advertise in an unsolicited commercial email advertisement sent to New Mexico email address.

B. It is unlawful for any person or entity to use an email address obtained by using automated means based on a combination of names, letters or numbers for the following:

(1) initiate or advertise in an unsolicited commercial email advertisement from New Mexico or to advertise in an unsolicited commercial email advertisement sent from New Mexico; or

(2) initiate or advertise in an unsolicited commercial email advertisement to a New Mexico email address or advertise in an unsolicited commercial email advertisement sent to a New Mexico email address.

C. It is unlawful for any person to use scripts or other automated means to register for multiple email accounts from which to do, or to enable another person to do, the following:

(1) initiate or advertise in an unsolicited commercial email advertisement from New Mexico or advertise in an unsolicited commercial email advertisement sent from New Mexico; or

Section 7. MISLEADING RETURN EMAILS.--

A. It is unlawful for any person or entity to:

(1) advertise in a commercial email advertisement either sent from New Mexico or sent to a New Mexico email address under any of the following circumstances:

(a) the email advertisement contains or is accompanied by a third-party's domain name without the permission of the third party;

(b) the email advertisement contains or is accompanied by falsified, misrepresented or forged header information, but does not apply to truthful information used by a third party who has been lawfully authorized by the advertiser to use that information; or

(c) the email 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;

(2) use a computer or computer network with the intent to falsify or forge email transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk email through or into the computer network of an email service provider or its subscribers; or

(3) knowingly sell, give or otherwise distribute or possess with the intent to sell, give or distribute software that:

(a) is primarily designed or produced for the purpose of facilitating or enabling the falsification of email transmission information or other routing information;

(b) has only limited commercially significant purpose or use other than to facilitate or enable the falsification of email transmission information or other routing information; or

(c) is marketed by that person acting alone or with another for use in facilitating or enabling the falsification of email transmission information or other routing information.

B. In addition to any other remedies provided by any other provision of law, an action may be brought against a person or entity that violates any provision of Subsection A of this section by the following:

(1) the attorney general;

(2) an email service provider; or

(3) a recipient of an unsolicited commercial email advertisement.

C. A person or entity bringing an action against a person or entity that violates any provision of Subsection A of this section may recover the following:

(1) actual damages; or

(2) liquidated damages of one thousand dollars ($1,000) for each unsolicited commercial email advertisement transmitted in violation of Subsection A of this section, not to exceed one million dollars ($1,000,000) per incident.

D. The recipient, an email service provider or the attorney general, if the prevailing plaintiff, may also recover reasonable attorney fees and costs.

E. There shall not be a cause of action under this section against an email service provider that is only involved in the routine transmission of the email advertisement over its computer network.

F. If the court finds that the defendant established and implemented with due care practices and procedures reasonably designed effectively to prevent unsolicited commercial email advertisements that are in violation of this section, the court shall reduce the liquidated damages recoverable under Paragraph (2) of Subsection C of this section to a maximum of one hundred dollars ($100) for each unsolicited commercial email advertisement or a maximum of one hundred thousand dollars ($100,000) per incident.

G. A person who has brought an action against a person or entity under Subsection A of this section shall not bring an action against that party under Section 8 of the Anti-Spam Act for the same commercial email advertisement.

H. A person who has brought an action against a party under Section 8 of the Anti-Spam Act shall not bring an action against that party under this section for the same commercial email advertisement.

I. A person is guilty of a fourth degree felony if that person commits a violation of Paragraphs (2) and (3) of Subsection A of this section and:

(1) the volume of unsolicited commercial email transmitted exceeded ten thousand attempted recipients in any twenty-four-hour period, one hundred thousand attempted recipients in any thirty-day time period or one million attempted recipients in any one-year time period; or

(2) the revenue generated from a specific unsolicited commercial email transmission exceeded one thousand dollars ($1,000) or the total revenue generated from all unsolicited commercial email transmitted to any email service provider exceeded fifty thousand dollars ($50,000).

J. A person is guilty of a fourth degree felony if that person knowingly hires, employs, uses or permits any minor to assist in the transmission of unsolicited commercial email in violation of Paragraphs (2) and (3) of Subsection A of this section.

K. No registered user of an email service provider shall use or cause to be used that email service provider's equipment located in this state in violation of that email service provider's policy prohibiting or restricting the use of its service or equipment for the initiation of unsolicited email advertisements.

L. No individual, corporation or other entity shall use or cause to be used by initiating an unsolicited email advertisement an email service provider's equipment located in this state in violation of that email service provider's policy prohibiting or restricting the use of its equipment to deliver unsolicited email advertisements to its registered users.

M. An email service provider shall not be required to create a policy prohibiting or restricting the use of its equipment for the initiation or delivery of unsolicited email advertisements.

N. Nothing in this section shall be construed to limit or restrict the rights of an email service provider under Section 330(c)(1) of Title 47 of the United States Code, any decision of an email service provider to permit or to restrict access to or use of its system or any exercise of its editorial function.

O. In addition to any other action available under law, any email service provider whose policy on unsolicited email advertisements is violated as provided in this section may bring a civil action to recover the actual monetary loss suffered by that provider by reason of that violation or liquidated damages of fifty dollars ($50.00) for each email message initiated or delivered in violation of this section, up to a maximum of twenty-five thousand dollars ($25,000) per day, whichever amount is greater. In any action brought pursuant to this subsection:

(1) the court may award reasonable attorney fees to a prevailing party; and

(2) the electronic mail service provider shall be required to establish as an element of its cause of action that prior to the alleged violation, the defendant had actual notice of the following:

(a) the email service provider's policy on unsolicited email advertising; and

(b) the fact that the defendant's unsolicited email advertisements would use or cause to be used the email service provider's equipment located in this state.

P. An email service provider who has brought an action against a party for a violation under Section 8 of the Anti-Spam Act shall not bring an action against that party under this section for the same unsolicited commercial email advertisement.

Q. An email service provider who has brought an action against a party for a violation of this section shall not bring an action against that party under Section 8 of the Anti-Spam Act for the same unsolicited commercial email advertisement.

Section 8. ENFORCEMENT.--

A. In addition to any other remedies provided by the Anti-Spam Act or by any other provisions of law, a recipient of an unsolicited commercial email advertisement transmitted in violation of that act, an email service provider or the attorney general may bring an action against an entity that violates any provisions of that act to recover either or both of the following:

(1) actual damages; or

(2) liquidated damages of one thousand dollars ($1,000) for each unsolicited commercial email advertisement transmitted in violation of Section 4 of the Anti-Spam Act up to one million dollars ($1,000,000) per incident.

B. The recipient, an email service provider or the attorney general, if the prevailing plaintiff, may also recover reasonable attorney fees and costs.

C. There shall not be a cause of action against an email service provider that is only involved in the routine transmission of the unsolicited commercial email advertisement over its computer network.

D. If the court finds that the defendant established and implemented, with due care, practices and procedures reasonably designed effectively to prevent unsolicited commercial email advertisements that are in violation of the Anti-Spam Act, the court shall reduce the liquidated damages recoverable under Paragraph (2) of Subsection A of this section to a maximum of one hundred dollars ($100) for each unsolicited commercial email advertisement or a maximum of one hundred thousand dollars ($100,000) per incident.

Section 9. EMAIL LIST REMOVAL.--

A. An "opt-out" option must be included in all unsolicited commercial emails. This option can include the following:

(1) a link placed in a conspicuous place before or after the main body of the email that meets any of these criteria;

(2) a link to a web site on the internet that allows for a person to unsubscribe from the email;

(3) a link to an email address that allows for a person to unsubscribe from the email and that should include:

(a) the recipient's full name;

(b) the email address that the email was sent to; and

B. The font size used shall not be less than seven points and shall be in the same language as the main body of the email.

Section 10. SEVERABILITY.--If any part or application of the Anti-Spam Act is held invalid, the remainder or its application to other situations or persons shall not be affected.

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