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91_HB2616
LRB9104846BBpr
1 AN ACT in relation to electronic mail.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 1. Short title. This Act may be cited as the
5 Illinois Electronic Mail Act.
6 Section 5. Definitions. As used in this Act, unless the
7 context otherwise requires:
8 (1) "Electronic mail advertisement" means any electronic
9 mail message (e-mail), the principal purpose of which is to
10 promote, directly or indirectly, the sale or other
11 distribution of goods or services to the recipient.
12 (2) "Unsolicited electronic mail advertisement" means
13 any e-mail advertisement that meets both of the following
14 requirements:
15 (A) It is addressed to a recipient with whom the
16 initiator does not have an existing business or personal
17 relationship.
18 (B) It is not sent at the request of or with the
19 express consent of the recipient.
20 (3) "Electronic mail service provider" means any
21 business or organization qualified to do business in Illinois
22 that provides registered users the ability to send or receive
23 e-mail through equipment located in this State and that is an
24 intermediary in sending or receiving e-mail.
25 (4) "Initiation" of an unsolicited e-mail advertisement
26 refers to the action by the initial sender of the e-mail
27 advertisement. It does not refer to the actions of any
28 intervening electronic mail service provider that may handle
29 or retransmit the e-mail.
30 (5) "Registered user" means any individual, corporation,
31 or other entity that maintains an e-mail address with an
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1 electronic mail service provider.
2 Section 10. Prohibitions and requirements.
3 (a) No person or entity conducting business in this
4 State shall e-mail or cause to be e-mailed documents
5 consisting of unsolicited advertising material for the lease,
6 sale, rental, gift, offer, or other disposition of any
7 realty, goods, services, or extension of credit that:
8 (1) uses a third party's Internet domain name
9 without permission of the third party, or otherwise
10 misrepresents any information in identifying the point of
11 origin or the transmission path of a commercial e-mail;
12 or
13 (2) contains false or misleading information in the
14 subject line.
15 (b) No person or entity conducting business in this
16 State shall e-mail or cause to be e-mailed documents
17 consisting of unsolicited advertising material for the lease,
18 sale, rental, gift, offer, or other disposition of any
19 realty, goods, services, or extension of credit unless:
20 (1) The legal name, complete street address, phone
21 number, and e-mail address of the person transmitting the
22 e-mail appears clearly and conspicuously in the body of
23 the message.
24 (2) That person or entity establishes a toll-free
25 telephone number or valid sender operated return e-mail
26 address that the recipient of the unsolicited documents
27 may call or e-mail to notify the sender not to e-mail any
28 further unsolicited documents.
29 (3) E-mailed documents shall include a statement
30 informing the recipient of the toll-free telephone number
31 that the recipient may call, or a valid return address to
32 which the recipient may write or e-mail, as the case may
33 be, notifying the sender not to e-mail the recipient any
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1 further unsolicited documents to the e-mail address, or
2 addresses, specified by the recipient. The statement
3 shall be the first text in the body of the message and
4 shall be of the same size as the majority of the text of
5 the message.
6 (4) Upon notification by a recipient of his or her
7 request not to receive any further e-mailed documents, no
8 person or entity conducting business in this State shall
9 e-mail or cause to be e-mailed any unsolicited documents
10 to that recipient.
11 (5) This Section shall apply when the unsolicited
12 e-mailed documents are delivered to an Illinois resident
13 via an electronic mail service provider's service or
14 equipment located in this State.
15 (c) As used in this Section, "e-mail" or "cause to be
16 e-mailed" does not include or refer to the transmission of
17 any documents by an Internet service provider to the extent
18 that the Internet service provider merely carries that
19 transmission over its network.
20 (d) In the case of e-mail that consists of unsolicited
21 advertising material for the lease, sale, rental, gift offer,
22 or other disposition of any realty, goods, services, or
23 extension of credit, the subject line of each and every
24 message shall include "ADV:" as the first four characters. If
25 these messages contain information that consists of
26 unsolicited advertising material for the lease, sale, rental,
27 gift offer, or other disposition of any realty, goods,
28 services, or extension of credit, that may only be viewed,
29 purchased, rented, leased, or held in possession by an
30 individual 18 years of age and older, the subject line of
31 each and every message shall include "ADV:ADLT" as the first
32 eight characters.
33 (e) An employer who is the registered owner of more than
34 one e-mail address may notify the person or entity conducting
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1 business in this State e-mailing or causing to be e-mailed,
2 documents consisting of unsolicited advertising material for
3 the lease, sale, rental, gift offer, or other disposition of
4 any realty, goods, services, or extension of credit of the
5 desire to cease e-mailing on behalf of all of the employees
6 who may use employer-provided and employer-controlled e-mail
7 addresses.
8 (f) No registered user of an electronic mail service
9 provider shall use or cause to be used that electronic mail
10 service provider's equipment located in this State in
11 violation of that electronic mail service provider's policy
12 prohibiting or restricting the use of its service or
13 equipment for the initiation of unsolicited e-mail
14 advertisements.
15 (g) No individual, corporation, or other entity shall
16 use or cause to be used, by initiating an unsolicited e-mail
17 advertisement, an electronic mail service provider's
18 equipment located in this State in violation of that
19 electronic mail service provider's policy prohibiting or
20 restricting the use of its equipment to deliver unsolicited
21 e-mail advertisements to its registered users.
22 (h) An electronic mail service provider shall not be
23 required to create a policy prohibiting or restricting the
24 use of its equipment for the initiation or delivery of
25 unsolicited e-mail advertisements.
26 (i) Nothing in this Section shall be construed to limit
27 or restrict the rights of an electronic mail service provider
28 under Section 230(c)(1) of Title 47 of the United States
29 Code, or any decision of an electronic mail service provider
30 to permit or to restrict access to or use of its system, or
31 any exercise of its editorial function.
32 Section 15. Remedies.
33 (a) Electronic Mail Service Providers.
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1 (1) In addition to any other action available under
2 law, any electronic mail service provider whose policy on
3 unsolicited e-mail advertisements is violated as provided
4 in this Section may bring a civil action to recover the
5 actual monetary loss suffered by that provider by reason
6 of that violation, or liquidated damages of $50 for each
7 e-mail initiated or delivered in violation of this
8 Section, up to a maximum $25,000 per day, whichever
9 amount is greater.
10 (2) In any action brought pursuant to paragraph
11 (1), the court may award reasonable attorney's fees to a
12 prevailing party.
13 (3) (A) In any action brought pursuant to paragraph
14 (1), the electronic mail service provider shall be
15 required to establish as an element of its cause of
16 action that, prior to the alleged violation, the
17 defendant had actual notice of both of the
18 following:
19 (i) The electronic mail service
20 provider's policy on unsolicited e-mail
21 advertising.
22 (ii) The fact that the defendant's
23 unsolicited e-mail advertisements would use or
24 cause to be used the electronic mail service
25 provider's equipment located in this State.
26 (B) In this regard, the Legislature finds that
27 with rapid advances in Internet technology, and
28 e-mail technology in particular, Internet service
29 providers are already experimenting with embedding
30 policy statements directly into the software running
31 on the computers used to provide electronic mail
32 services in a manner that displays the policy
33 statements every time an electronic mail delivery is
34 requested. While the state of the technology does
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1 not support such a finding at present, the
2 Legislature believes that, in a given case at some
3 future date, a showing that notice was supplied via
4 electronic means between the sending and receiving
5 computers could be held to constitute actual notice
6 to the sender for purposes of this paragraph.
7 (4) An interactive computer service may, upon its
8 own initiative, block the receipt or transmission through
9 its service of any commercial e-mail that it reasonably
10 believes is, or will be, sent in violation of this
11 Section. No interactive computer service may be held
12 liable for any action voluntarily taken in good faith to
13 block the receipt or transmission through its service of
14 any commercial e-mail which it reasonably believes is, or
15 will be, sent in violation of this Section.
16 (b) Damages; private actions. If a person is found
17 liable under subsection (a), (b), (c), (d), or (e) of Section
18 10, the recipient shall recover from the person:
19 (1) actual damages or damages of $500 per item of
20 e-mail received, whichever is greater; and
21 (2) reasonable attorney's fees and costs.
22 (c) Enforcement by Attorney General. Violation of any
23 of the provisions of this Act is an unlawful practice under
24 the Consumer Fraud and Deceptive Business Practices Act. All
25 remedies, penalties, and authority granted to the Attorney
26 General by that Act shall be available to the Attorney
27 General for the enforcement of this Act.