April 2, 2003, Introduced by Reps. Huizenga, Bradstreet, Rivet, McConico, Taub, Casperson, DeRoche, Bisbee, Nitz, LaJoy, Pastor, LaSata, Middaugh, Voorhees, Julian, Stahl, Garfield, Woodward, Stallworth, Murphy, Ehardt, Shackleton, Kooiman, Vander Veen, Hopgood and Daniels and referred to the Committee on Energy and Technology.
A bill to require certain notices regarding the transmission
of unsolicited commercial e-mail; to establish procedures for
e-mail service providers; to allow recipients of e-mail to be
excluded from receiving future unsolicited commercial e-mail; and
to prescribe penalties and remedies.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 Sec. 1. This act shall be known and may be cited as the
2 "unsolicited commercial e-mail protection act".
3 Sec. 2. As used in this act:
4 (a) "Commercial e-mail" means an electronic message, file,
5 data, or other information promoting the sale, lease, or exchange
6 of goods, services, or real property that is transmitted between
7 2 or more computers, computer networks, or electronic terminals
8 or within a computer network.
9 (b) "Computer network" means 2 or more computers that are
1 interconnected to exchange electronic messages, files, data, or
2 other information.
3 (c) "E-mail address" means a destination, commonly expressed
4 as a string of characters, to which e-mail may be sent or
5 delivered.
6 (d) "E-mail service provider" means a person that is an
7 intermediary in the transmission of e-mail from the sender to the
8 recipient or provides to end users of e-mail service the ability
9 to send and receive e-mail.
10 (e) "Internet domain name" means a globally unique,
11 hierarchical reference to an internet host or service, assigned
12 through centralized internet authorities, comprising a series of
13 character strings separated by periods, with the right-most
14 string specifying the top of the hierarchy.
15 (f) "Person" means an individual, corporation, partnership,
16 association, governmental entity, or any other legal entity.
17 (g) "Unsolicited" means without the recipient's express
18 permission. An e-mail is not unsolicited if the sender has a
19 preexisting business or personal relationship with the
20 recipient.
21 Sec. 3. (1) A person who sends or causes to be sent an
22 unsolicited commercial e-mail through the intermediary of an
23 e-mail service provider located in this state or to an e-mail
24 address held by a resident of this state shall do all of the
25 following:
26 (a) Conspicuously state in the e-mail all of the following:
27 (i) The sender's legal name.
1 (ii) The sender's correct street address.
2 (iii) The sender's valid internet domain name.
3 (b) Include in the e-mail subject line "ADV:" as the first 4
4 characters.
5 (c) Establish a toll-free telephone number, a valid
6 sender-operated return e-mail address, or another easy-to-use
7 electronic method that the recipient of the commercial e-mail
8 message may call or access by e-mail or other electronic means to
9 notify the sender not to transmit by e-mail any further
10 unsolicited commercial e-mail messages. The notification process
11 may include the ability for the commercial e-mail messages
12 recipient to direct the sender to transmit or not transmit
13 particular commercial e-mail messages based upon products,
14 services, divisions, organizations, companies, or other
15 selections of the recipient's choice. A commercial e-mail
16 message must include a statement informing the recipient of a
17 toll-free telephone number that the recipient may call, or a
18 valid return address to which the recipient may write or access
19 by e-mail or another electronic method established by the sender,
20 notifying the sender not to transmit to the recipient any further
21 unsolicited commercial e-mail messages to the e-mail address or
22 addresses specified by the recipient and explaining the manner in
23 which the recipient may specify what commercial e-mail messages
24 the recipient does and does not wish to receive.
25 (d) Conspicuously provide in the text of the commercial
26 e-mail a notice that informs the recipient that the recipient may
27 conveniently and at no cost be excluded from future unsolicited
1 commercial e-mail from the sender as provided under subdivision
2 (c).
3 Sec. 4. (1) A person who sends or causes to be sent an
4 unsolicited commercial e-mail through the intermediary of an
5 e-mail service provider located in this state or to an e-mail
6 address held by a resident of this state shall not do any of the
7 following:
8 (a) Use a third party's internet domain name in identifying
9 the point of origin or in stating the transmission path of the
10 commercial e-mail without the third party's consent.
11 (b) Misrepresent any information in identifying the point of
12 origin or the transmission path of the commercial e-mail.
13 (c) Fail to include in the commercial e-mail the information
14 necessary to identify the point of origin of the commercial
15 e-mail.
16 (d) Provide directly or indirectly to another person the
17 software that facilitates or enables the falsification of
18 commercial e-mail transmission or routing information.
19 (2) If the recipient of an unsolicited commercial e-mail
20 notifies the sender that the recipient does not want to receive
21 future unsolicited commercial e-mail from the sender, the sender
22 shall not send that recipient unsolicited commercial e-mail
23 either directly or through a subsidiary or affiliate.
24 (3) A sender of unsolicited commercial e-mail shall
25 establish and maintain the necessary policies and records to
26 identify any person who has notified the sender under subsection
27 (2). The sender shall update its records under this subsection
1 no less than every 2 business days.
2 Sec. 5. A person shall not knowingly sell, give, or
3 otherwise distribute or possess with the intent to sell, give, or
4 distribute software that does any of the following:
5 (a) Is primarily designed or produced for the purpose of
6 facilitating or enabling the falsification of commercial e-mail
7 transmission information or other routing information.
8 (b) Has only limited commercially significant purpose or use
9 other than to facilitate or enable the falsification of
10 commercial e-mail transmission information or other routing
11 information.
12 (c) Is marketed by that person or another acting in concert
13 with that person with that person's knowledge for use in
14 facilitating or enabling the falsification of commercial e-mail
15 transmission information or other routing information.
16 Sec. 6. An e-mail service provider may, upon its own
17 initiative, block the receipt or transmission through its service
18 of any unsolicited commercial e-mail advertisement that it
19 reasonably believes is, or will be, sent in violation of this
20 act.
21 Sec. 7. (1) Except as otherwise provided under subsection
22 (2), a person who violates this act is guilty of a misdemeanor
23 punishable by imprisonment for not more than 1 year or a fine of
24 not more than $10,000.00, or both.
25 (2) A person who violates section 4 or violates this act in
26 the furtherance of another crime is guilty of a felony punishable
27 by imprisonment for not more than 4 years or a fine of not more
1 than $25,000.00, or both.
2 (3) Each commercial e-mail sent in violation of this act is
3 a separate violation under this section.
4 (4) An e-mail service provider does not violate this act
5 solely by being an intermediary between the sender and recipient
6 in the transmission of an unsolicited commercial e-mail that
7 violates this act.
8 (5) It is a defense to an action brought under this section
9 or section 5 that the unsolicited commercial e-mail was
10 transmitted accidentally. The burden of proving that the
11 commercial e-mail was transmitted accidentally is on the sender.
12 Sec. 8. (1) An action may be brought by a person who
13 received an unsolicited commercial e-mail in violation of this
14 act.
15 (2) An action may be brought by an e-mail service provider
16 through whose facilities the unsolicited commercial e-mail was
17 transmitted in violation of this act.
18 (3) In each action brought under this section, a recipient or
19 e-mail service provider may recover 1 of the following:
20 (a) Actual damages.
21 (b) In lieu of actual damages, recover the lesser of the
22 following:
23 (i) $10.00 per unsolicited commercial e-mail received by the
24 recipient or transmitted through the e-mail service provider.
25 (ii) $25,000.00 for each day that the violation occurs.
26 (4) The prevailing recipient or e-mail service provider shall
27 be awarded actual costs and reasonable attorney fees.