PRINTER'S NO. 2051
No. 1616 Session of 2005
INTRODUCED BY MARKOSEK, BEBKO-JONES, CALTAGIRONE, CORNELL,
DALEY, FAIRCHILD, GEORGE, GERGELY, GOODMAN, GRUCELA, HARHAI,
HERSHEY, JAMES, JOSEPHS, LEACH, LEDERER, LESCOVITZ, McGEEHAN,
McILHATTAN, PALLONE, PETRARCA, PISTELLA, READSHAW, REICHLEY,
SHANER, SHAPIRO, STURLA, SURRA, E. Z. TAYLOR, TIGUE, WATERS,
YOUNGBLOOD, YUDICHAK AND ZUG, JUNE 3, 2005
REFERRED TO COMMITTEE ON CONSUMER AFFAIRS, JUNE 3, 2005
AN ACT
1 Regulating unsolicited electronic mail advertisements; and
2 prescribing penalties.
3 The General Assembly of the Commonwealth of Pennsylvania
4 hereby enacts as follows:
5 Section 1. Short title.
6 This act shall be known and may be cited as the Unsolicited
7 Electronic Mail Advertisements Act.
8 Section 2. Definitions.
9 The following words and phrases when used in this act shall
10 have the meanings given to them in this section unless the
11 context clearly indicates otherwise:
12 "Access." To instruct, communicate with, store data in,
13 retrieve data from or otherwise make use of any resources of a
14 computer, computer system or computer network.
15 "Computer." An electronic device which performs logical,
16 arithmetic and memory functions by the manipulations of
1 electronic, photonic or magnetic impulses and includes all
2 input,output, processing, storage, software or communication
3 facilities which are connected or related to the device in a
4 system or network, including devices available to the public for
5 limited or designated use or other devices used to access or
6 connect to the system or network.
7 "Computer network." The interconnection of remote user
8 terminals with a computer through communication lines or a
9 complex consisting of two or more interconnected computers.
10 "Computer program." A series of instructions or statements
11 or related data that in actual or modified form is capable of
12 causing a computer or a computer system to perform specified
13 functions in a form acceptable to a computer, which permits the
14 functioning of a computer system in a manner designed to provide
15 appropriate products from the computer system.
16 "Computer software." A set of computer programs, procedures
17 and associated documentation concerned with the operation of a
18 computer system.
19 "Computer system." A set of connected computer equipment,
20 devices and software.
21 "Data." Any representation of information, knowledge, facts,
22 concepts or instructions which are being prepared or have been
23 prepared and are intended to be entered, processed or stored,
24 are being entered, processed or stored or have been entered,
25 processed or stored in a computer, computer system or computer
26 network.
27 "Electronic mail." A message, file or other information that
28 is transmitted through a local, regional or global network,
29 regardless of whether the message, file or other information is:
30 (1) viewed;
20050H1616B2051 - 2 -
1 (2) stored for retrieval at a later time;
2 (3) printed onto paper or other similar material; or
3 (4) filtered or screened by a computer program that is
4 designed or intended to filter or screen such items.
5 "Electronic mail advertisement." Any electronic message
6 containing solicitations for the sale, lease, rental, gift,
7 offer or other disposition of realty, goods, services or offers
8 of credit.
9 "Electronic mail service provider." A person who:
10 (1) is an intermediary in sending or receiving
11 electronic mail; and
12 (2) provides to end-users of electronic mail services
13 the ability to send or receive electronic mail.
14 "Registry." The Statewide registry established in section 4
15 (relating to registry).
16 "Services." Includes computer time, data processing and
17 storage functions.
18 "Unsolicited electronic mail advertisement."
19 (1) An electronic mail advertisement that meets both of
20 the following requirements:
21 (i) The message is addressed to a recipient with
22 whom the initiator does not have an existing business or
23 personal relationship.
24 (ii) The message is not sent at the request of or
25 with the express consent of the recipient.
26 (2) The term does not include transmission of an
27 electronic mail advertisement:
28 (i) From an organization to its members.
29 (ii) On behalf of an organization granted tax-exempt
30 status under section 501(c)(3), (5) or (8) of the
20050H1616B2051 - 3 -
1 Internal Revenue Code of 1986 (Public Law 99-514, 26
2 U.S.C. § 1 et seq.) or a veterans organization chartered
3 by the Congress of the United States and/or its duly
4 appointed foundation.
5 (iii) On behalf of a political candidate or a
6 political party.
7 Section 3. Prohibitions.
8 (a) Distribution of unsolicited electronic mail
9 advertisement.--
10 (1) No person shall, without authorization and without
11 checking the registry, intentionally or recklessly distribute
12 any unsolicited electronic mail advertisement to any
13 receiving address or account under the control of any
14 authorized user of a computer system.
15 (2) No electronic mail service provider shall be liable
16 under this section solely for:
17 (i) transmitting an unsolicited electronic mail
18 advertisement in its network; or
19 (ii) any action voluntarily taken in good faith to
20 block the receipt or transmission through its service of
21 any unsolicited electronic mail advertisement which it
22 believes is or will be sent in violation of this section.
23 (b) Falsifying or forging transmission information.--No
24 person shall without authorization use a computer or computer
25 network with the intent to falsify or forge electronic mail
26 transmission information in connection with the transmission of
27 unsolicited electronic mail advertisements through or into the
28 computer network of an electronic mail service provider or its
29 subscribers.
30 (c) Software.--No person shall sell, distribute or possess,
20050H1616B2051 - 4 -
1 with the intent to sell or distribute, software which:
2 (1) is primarily designed or produced for the purpose of
3 facilitating or enabling the falsification of electronic mail
4 transmission information or other routing information;
5 (2) has only limited commercially significant purpose or
6 use other than to facilitate or enable the falsification of
7 electronic mail transmission information or other routing
8 information; or
9 (3) is marketed for use in facilitating or enabling the
10 falsification of electronic mail transmission information or
11 other routing information.
12 (d) Failure to cease sending electronic mail
13 advertisements.--No person shall intentionally, recklessly or
14 negligently fail to cease sending electronic mail advertisements
15 to any receiving address or account under control of any
16 authorized user of a computer system after being requested to do
17 so or after the authorized user has been entered on the registry
18 list.
19 (e) Information to be provided.--No person shall send any
20 electronic mail advertisement to any receiving address within
21 this Commonwealth without information describing how to
22 unsubscribe, how to be removed from the mailing list or how to
23 stop further receipt of electronic mail advertisements from the
24 sender.
25 (f) Subject line notice.--No person shall send any
26 electronic mail advertisement to any receiving address or
27 account under the control of any authorized user of a computer
28 system within this Commonwealth unless the advertisement
29 specifies in the subject line area of the message the following
30 notice:
20050H1616B2051 - 5 -
1 (1) "ADV" for advertisements; or
2 (2) "ADV: ADULT" for those advertisements that contain
3 pornographic or sexually explicit advertisements.
4 (g) Penalty.--A person who violates this section commits a
5 summary offense and shall upon conviction:
6 (1) For a first offense, be sentenced to pay a fine of
7 not more than $500.
8 (2) For a second or subsequent offense, be sentenced to
9 pay a fine of not more than $1,000.
10 Section 4. Registry.
11 The Bureau of Consumer Protection in the Office of Attorney
12 General shall establish and maintain the "Do Not E-mail"
13 Statewide Registry which shall contain a list of those persons
14 who do not wish to receive unsolicited electronic mail
15 advertisements. The bureau may contract with a private vendor to
16 establish and maintain the registry, provided the private vendor
17 has experience in maintaining the information and the contract
18 requires the vendor to provide the registry in a printed hard
19 copy format and in any other format as prescribed by the bureau.
20 Section 5. Effective date.
21 This act shall take effect in 60 days.
E3L12BIL/20050H1616B2051 - 6 -