Second Substitute S.B. 59

This document includes Senate Committee Amendments incorporated into the bill on Mon, Feb 17, 2003 at 1:24 PM by rday. --> This document includes Senate 2^nd Reading Floor Amendments incorporated into the bill on Fri, Feb 21, 2003 at 3:50 PM by rday. --> This document includes House Committee Amendments incorporated into the bill on Wed, Feb 26, 2003 at 2:47 PM by kholt. -->

Senator Patrice M. Arent proposes the following substitute bill:

1 AMENDMENTS TO UNSOLICITED
2 COMMERCIAL AND SEXUALLY EXPLICIT
3 EMAIL ACT
4 2003 GENERAL SESSION
5 STATE OF UTAH
6 Sponsor: Patrice M. Arent
7 This act modifies the Unsolicited Commercial and Sexually Explicit Email Act by
8 providing additional definitions, modifying certain information that must be provided by
9 a sender of an unsolicited commercial or sexually explicit email, eliminating the
10 requirement for the sender of a sexually explicit email to provide a toll-free telephone
11 number, changing the damages for a violation, and making technical changes.
12 This act affects sections of Utah Code Annotated 1953 as follows:
13 AMENDS:
14 13-36-102, as enacted by Chapter 229, Laws of Utah 2002
15 13-36-103, as enacted by Chapter 229, Laws of Utah 2002
16 13-36-105, as enacted by Chapter 229, Laws of Utah 2002
17 Be it enacted by the Legislature of the state of Utah:
18 Section 1. Section 13-36-102 is amended to read:
19 13-36-102. Definitions.
20 As used in this chapter:
21 (1) "Commercial" means for the purpose of promoting the sale, lease, or exchange of
22 goods, services, or real property.
23 (2) "Computer network" means two or more computers that are interconnected to
24 exchange electronic messages, files, data, or other information.
25 (3) (a) "Email" means an electronic message, file, data, or other information that is

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House Committee Amendments 2-26-2003 kh/tcl 26

transmitted to an email address:
27 [(a)] (i) between two or more computers, computer networks, or electronic terminals;
28 or
29 [(b)] (ii) within a computer network.
30 (b) "Email" does not include an Internet based electronic advertisement that is not
31 transmitted to a specific email address.
32 (4) h (a) h "Email address" means a destination, commonly expressed as a string of
32a characters,
33 to which email may be sent or delivered h ;
33a (b) "EMAIL ADDRESS" DOES NOT INCLUDE AN INTERNET PROTOCOL ADDRESS h .
34 (5) "Email service provider" means a person that:
35 (a) is an intermediary in the transmission of email from the sender to the recipient; or
36 (b) provides to end users of email service the ability to send and receive email.
37 (6) "Internet domain name" means a globally unique, hierarchical reference to an
38 Internet host or service, assigned through centralized Internet authorities, comprising a series of
39 character strings separated by periods, with the right-most string specifying the top of the
40 hierarchy.
41 (7) (a) "Preexisting business relationship" means a relationship formed by voluntary
42 two-way communication, with or without an exchange of consideration, if:
43 (i) the recipient has indicated a willingness to receive email from the sender;
44 (ii) the recipient has requested information, goods, or services from the sender; or
45 (iii) the recipient has entered into a financial transaction with the sender.
46 (b) "Preexisting business relationship" does not include a relationship in which:
47 (i) the recipient has provided to the sender the notice described in Subsection
48 13-36-103 (3); and
49 (ii) a reasonable period of time has expired since the recipient has provided to the
50 sender the notice described in Subsection 13-36-103 (3).
51 (8) "Sender" means a person that:
52 (a) sends an email:
53 (i) directly; or
54 (ii) through an intermediary;

55 (b) causes an email to be sent:
56 (i) directly; or

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(ii) through an intermediary; S [ or ] s
58 (c) is a subsidiary of a person described in Subsections (8)(a) or (8)(b) S [ . ] ;
58a (d) OWNS OR IS OWNED BY A PERSON DESCRIBED IN SUBSECTION (8)(a) OR
58b (8)(b); OR
58c (e) HAS A RELATIONSHIP WITH A PERSON DESCRIBED IN SUBSECTION (8)(a) OR (8)(b)
58d UNDER WHICH ONE PERSON HAS THE POWER TO DIRECT THE MANAGEMENT OR POLICIES OF
58e THE OTHER PERSON. s
59 [(7)] (9) (a) "Sexually explicit email" means an email that contains, promotes, or
60 contains an electronic link to material that is harmful to minors, as defined in Section
61 76-10-1201 .
62 (b) An email is a "sexually explicit email" if it meets the definition in Subsection [(7)]
63 (9)(a), even if the email also meets the definition of a commercial email.
64 (10) "Transmitted accidentally" S [ means ] INCLUDES, BUT IS NOT LIMITED TO, A
64a SITUATION WHERE s :
65 (a) the sender possesses a good faith belief that the recipient had given permission to
66 receive an email; or
67 (b) the email was sent within a reasonable period of time after the recipient provided to
68 the sender the notice described in Subsection 13-36-103 (3).
69 [(8)] (11) (a) "Unsolicited" means without the recipient's express permission, except as
70 provided in Subsection [(8)] (11)(b).
71 (b) A commercial email is not "unsolicited" if the sender has:
72 (i) a preexisting business [or] relationship with the recipient; or
73 (ii) a preexisting personal relationship with the recipient.
74 Section 2. Section 13-36-103 is amended to read:
75 13-36-103. Unsolicited commercial or sexually explicit email -- Requirements.
76 (1) Each person who sends or causes to be sent an unsolicited commercial email or an
77 unsolicited sexually explicit email through the intermediary of an email service provider
78 located in the state or to an email address held by a resident of the state shall:
79 (a) conspicuously state in the email the sender's:
80 (i) legal name;
81 (ii) correct street address; and
82 (iii) valid Internet domain name, if the sender has a valid Internet domain name;
83 (b) include in the email a subject line that contains:
84 (i) for a commercial email, "ADV:" as the first four characters; or
85 (ii) for a sexually explicit email, "ADV:ADULT" as the first nine characters;
86 (c) provide the recipient a convenient, no-cost mechanism to notify the sender not to
87 send any future email to the recipient, including[: (i)] return email to a valid, functioning return

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electronic address; and
89 [(ii) for a sexually explicit email and if the sender has a toll-free telephone number, the
90 sender's toll-free telephone number; and]
91 (d) conspicuously provide in the text of the email a notice that[: (i)] informs the
92 recipient that the recipient may conveniently and at no cost be excluded from future
93 commercial or sexually explicit email, as the case may be, from the sender[; and].
94 [(ii) for a sexually explicit email and if the sender has a toll-free telephone number,
95 includes the sender's valid, toll-free telephone number that the recipient may call to be
96 excluded from future email from the sender.]
97 (2) A person who sends or causes to be sent an unsolicited commercial email or an
98 unsolicited sexually explicit email through the intermediary of an email service provider
99 located in the state or to an email address held by a resident of the state may not:
100 (a) use a third party's Internet domain name in identifying the [point of origin] sender
101 or in stating the transmission path of the email without the third party's consent;
102 (b) misrepresent any information in identifying the [point of origin] sender or the
103 transmission path of the email; or
104 (c) fail to include in the email the information necessary to identify the [point of origin]
105 sender of the email.
106 (3) If the recipient of an unsolicited commercial email or an unsolicited sexually
107 explicit email notifies the sender that the recipient does not want to receive future commercial
108 email or future sexually explicit email, respectively, from the sender[,]:
109 (a) the sender may not, after a reasonable period of time:
110 (i) send that recipient a commercial email or a sexually explicit email h [ , as the case may
111 be, either directly or through a subsidiary or affiliate ] h [.]; or
112 (ii) sell, lease, exchange, license, or engage in any other transaction involving an email
113 address list bearing the email address of the recipient; and
114 (b) the sender shall, within a reasonable period of time, delete or suppress the email
115 address of that recipient from all email address lists owned or controlled by the sender.
116 Section 3. Section 13-36-105 is amended to read:
117 13-36-105. Civil action for violation -- Election on damages -- Costs and attorney
118 fees -- Defense.

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(1) For any violation of a provision of Section 13-36-103 , an action may be brought by:
120 (a) a person who received the unsolicited commercial email or unsolicited sexually
121 explicit email with respect to which the violation under Section 13-36-103 occurred; or
122 (b) an email service provider through whose facilities the unsolicited commercial email
123 or unsolicited sexually explicit email was transmitted.
124 (2) In each action under Subsection (1):
125 (a) a recipient or email service provider may:
126 (i) recover actual damages; or
127 (ii) elect, in lieu of actual damages, to recover the lesser of:
128 (A) [$10] $75 per unsolicited commercial email or unsolicited sexually explicit email
129 received by the recipient or transmitted through the email service provider; or
130 (B) $25,000 per day that the violation occurs; and
131 (b) each prevailing h [ recipient or email service provider ] PARTY h shall be awarded costs
131a and
132 reasonable attorney fees.
133 (3) An email service provider does not violate Section 13-36-103 solely by being an
134 intermediary between the sender and recipient in the transmission of an email that violates that
135 section.
136 (4) The violation of Section 13-36-103 by an employee does not subject the employee's
137 employer to liability under that section if the employee's violation of Section 13-36-103 is also
138 a violation of an established policy of the employer that requires compliance with the
139 requirements of Section 13-36-103 .
140 (5) It is a defense to an action brought against an individual under this section that the
141 unsolicited commercial email or unsolicited sexually explicit email was transmitted
142 accidentally.
143 (6) It is a defense to an action brought against an entity under this section that a sender
144 can demonstrate by S [ clear and convincing ] A PREPONDERANCE OF THE s evidence:
145 (a) that the sender at the time of the violation of this chapter had:
146 (i) maintained a list of h [ consumers ] RECIPIENTS h who have notified the sender not to
146a send any
147 subsequent commercial email or sexually explicit email;
148 (ii) established and implemented, with due care, reasonable practices and procedures to
149 effectively prevent commercial email or sexually explicit email in violation of this chapter;

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151 (iv) maintained records demonstrating compliance with this chapter; and
152 (b) the unsolicited commercial email or unsolicited sexually explicit email was
153 transmitted accidentally.