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91_HB2616eng HB2616 Engrossed 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 Electronic Mail Act. 6 Section 5. Definitions. As used in this Act: 7 "Electronic mail advertisement" means any electronic mail 8 message, the principal purpose of which is to promote, 9 directly or indirectly, the sale or other distribution of 10 goods or services to the recipient. 11 "Unsolicited electronic mail advertisement" means any 12 electronic mail advertisement that (i) is addressed to a 13 recipient with whom the initiator does not have an existing 14 business or personal relationship and (ii) is not sent at the 15 request of or with the express consent of the recipient. 16 "Electronic mail service provider" means any business or 17 organization qualified to do business in Illinois that 18 provides registered users the ability to send or receive 19 electronic mail through equipment located in this State and 20 that is an intermediary in sending or receiving electronic 21 mail. 22 "Initiation" of an electronic mail message refers to the 23 action by the initial sender of the electronic mail message. 24 "Initiation" does not refer to the actions of any intervening 25 electronic mail service provider that may handle or 26 retransmit the electronic mail message. 27 "Registered user" means any individual or entity that 28 maintains an electronic mail address with an electronic mail 29 service provider. 30 "Electronic mail address" means a destination, commonly 31 expressed as a string of characters, to which electronic mail HB2616 Engrossed -2- LRB9104846BBpr 1 may be sent or delivered. 2 "Internet domain name" refers to a globally unique, 3 hierarchical reference to an Internet host or service, 4 assigned through centralized Internet naming authorities, 5 comprising a series of character strings separated by 6 periods, with the right-most string specifying the top of the 7 hierarchy. 8 Section 10. Unsolicited or misleading electronic mail; 9 prohibition. 10 (a) No individual or entity may initiate or cause to be 11 initiated an electronic mail advertisement if the electronic 12 mail advertisement (i) uses a third party's Internet domain 13 name without permission of the third party, or otherwise 14 misrepresents any information in identifying the point of 15 origin or the transmission path of an electronic mail 16 advertisement or (ii) contains false or misleading 17 information in the subject line. 18 (b) This Section applies when the unsolicited electronic 19 mail advertisement is delivered to an Illinois resident via 20 an electronic mail service provider's service or equipment 21 located in this State. 22 (c) Any person, other than an electronic mail service 23 provider, who suffers actual damages as a result of a 24 violation of this Section committed by any individual or 25 entity may bring an action against such individual or entity. 26 The injured person may recover attorney's fees and costs, and 27 may elect, in lieu of recovery of actual damages, to recover 28 the lesser of $10 for each and every unsolicited electronic 29 mail advertisement transmitted in violation of this Section, 30 or $25,000 per day. The injured person shall not have a 31 cause of action against the electronic mail service provider 32 that merely transmits the unsolicited electronic mail 33 advertisement over its computer network. HB2616 Engrossed -3- LRB9104846BBpr 1 (d) Any electronic mail service provider who suffers 2 actual damages as a result of a violation of this Section 3 committed by any individual or entity may bring an action 4 against such individual or entity. The injured person may 5 recover attorney's fees and costs, and may elect, in lieu of 6 recovery of actual damages, to recover the lesser of $10 for 7 each and every unsolicited electronic mail advertisement 8 transmitted in violation of this Section, or $25,000 per day. 9 (e) The provisions of this Section shall not be 10 construed to limit any person's right to pursue any 11 additional civil remedy otherwise allowed by law. 12 (f) An electronic mail service provider may, upon its 13 own initiative, block the receipt or transmission through its 14 service of any electronic mail advertisement that it 15 reasonably believes is, or will be, sent in violation of this 16 Section. 17 (g) No electronic mail service provider may be held 18 liable for any action voluntarily taken in good faith to 19 block the receipt or transmission through its service of any 20 electronic mail advertisement which it reasonably believes 21 is, or will be, sent in violation of this Section. 22 Section 15. Consumer Fraud and Deceptive Business 23 Practices Act. In addition to any other penalties specified 24 in this Act, violation of this Act constitutes an unlawful 25 practice under the Consumer Fraud and Deceptive Business 26 Practices Act. 27 Section 900. The Criminal Code of 1961 is amended by 28 changing Sections 16D-2 and 16D-3 as follows: 29 (720 ILCS 5/16D-2) (from Ch. 38, par. 16D-2) 30 Sec. 16D-2. Definitions. As used in this Article, 31 unless the context otherwise indicates: HB2616 Engrossed -4- LRB9104846BBpr 1 (a) "Computer" means a device that accepts, processes, 2 stores, retrieves or outputs data, and includes but is not 3 limited to auxiliary storage and telecommunications devices 4 connected to computers. 5 (a-5) "Computer network" means a set of related, remotely 6 connected devices and any communications facilities including 7 more than one computer with the capability to transmit data 8 among them through the communications facilities. 9 (b) "Computer program" or "program" means a series of 10 coded instructions or statements in a form acceptable to a 11 computer which causes the computer to process data and supply 12 the results of the data processing. 13 (b-5) "Computer services" means computer time or 14 services, including data processing services, Internet 15 services, electronic mail services, electronic message 16 services, or information or data stored in connection 17 therewith. 18 (c) "Data" means a representation of information, 19 knowledge, facts, concepts or instructions, including program 20 documentation, which is prepared in a formalized manner and 21 is stored or processed in or transmitted by a computer. Data 22 shall be considered property and may be in any form including 23 but not limited to printouts, magnetic or optical storage 24 media, punch cards or data stored internally in the memory of 25 the computer. 26 (c-5) "Electronic mail service provider" means any person 27 who (1) is an intermediary in sending or receiving electronic 28 mail and (2) provides to end-users of electronic mail 29 services the ability to send or receive electronic mail. 30 (d) In addition to its meaning as defined in Section 31 15-1 of this Code, "property" means: (1) electronic impulses; 32 (2) electronically produced data; (3) confidential, 33 copyrighted or proprietary information; (4) private 34 identification codes or numbers which permit access to a HB2616 Engrossed -5- LRB9104846BBpr 1 computer by authorized computer users or generate billings to 2 consumers for purchase of goods and services, including but 3 not limited to credit card transactions and 4 telecommunications services or permit electronic fund 5 transfers; (5) software or programs in either machine or 6 human readable form; or (6) any other tangible or intangible 7 item relating to a computer or any part thereof. 8 (e) "Access" means to use, instruct, communicate with, 9 store data in, retrieve or intercept data from, or otherwise 10 utilize any services of a computer. 11 (f) "Services" includes but is not limited to computer 12 time, data manipulation or storage functions. 13 (g) "Vital services or operations" means those services 14 or operations required to provide, operate, maintain, and 15 repair network cabling, transmission, distribution, or 16 computer facilities necessary to ensure or protect the public 17 health, safety, or welfare. Public health, safety, or 18 welfare include, but are not limited to, services provided by 19 medical personnel or institutions, fire departments, 20 emergency services agencies, national defense contractors, 21 armed forces or militia personnel, private and public utility 22 companies, or law enforcement agencies. 23 (Source: P.A. 85-926.) 24 (720 ILCS 5/16D-3) (from Ch. 38, par. 16D-3) 25 Sec. 16D-3. Computer Tampering. 26 (a) A person commits the offense of computer tampering 27 when he knowingly and without the authorization of a 28 computer's owner, as defined in Section 15-2 of this Code, or 29 in excess of the authority granted to him: 30 (1) Accesses or causes to be accessed a computer or 31 any part thereof, or a program or data; 32 (2) Accesses or causes to be accessed a computer or 33 any part thereof, or a program or data, and obtains data HB2616 Engrossed -6- LRB9104846BBpr 1 or services; 2 (3) Accesses or causes to be accessed a computer or 3 any part thereof, or a program or data, and damages or 4 destroys the computer or alters, deletes or removes a 5 computer program or data; 6 (4) Inserts or attempts to insert a "program" into 7 a computer or computer program knowing or having reason 8 to believe that such "program" contains information or 9 commands that will or may damage or destroy that 10 computer, or any other computer subsequently accessing or 11 being accessed by that computer, or that will or may 12 alter, delete or remove a computer program or data from 13 that computer, or any other computer program or data in a 14 computer subsequently accessing or being accessed by that 15 computer, or that will or may cause loss to the users of 16 that computer or the users of a computer which accesses 17 or which is accessed by such "program";.18 (5) Falsifies or forges electronic mail 19 transmission information or other routing information in 20 any manner in connection with the transmission of 21 unsolicited bulk electronic mail through or into the 22 computer network of an electronic mail service provider 23 or its subscribers; 24 (a-5) It shall be unlawful for any person knowingly to 25 sell, give, or otherwise distribute or possess with the 26 intent to sell, give, or distribute software which (1) is 27 primarily designed or produced for the purpose of 28 facilitating or enabling the falsification of electronic mail 29 transmission information or other routing information; (2) 30 has only a limited commercially significant purpose or use 31 other than to facilitate or enable the falsification of 32 electronic mail transmission information or other routing 33 information; or (3) is marketed by that person or another 34 acting in concert with that person with that person's HB2616 Engrossed -7- LRB9104846BBpr 1 knowledge for use in facilitating or enabling the 2 falsification of electronic mail transmission information or 3 other routing information. 4 (b) Sentence. 5 (1) A person who commits the offense of computer 6 tampering as set forth in subsection (a)(1), (a)(5), or 7 (a-5) of this Section shall be guilty of a Class B 8 misdemeanor. 9 (2) A person who commits the offense of computer 10 tampering as set forth in subsection (a)(2) of this 11 Section shall be guilty of a Class A misdemeanor and a 12 Class 4 felony for the second or subsequent offense. 13 (3) A person who commits the offense of computer 14 tampering as set forth in subsection (a)(3) or subsection 15 (a)(4) of this Section shall be guilty of a Class 4 16 felony and a Class 3 felony for the second or subsequent 17 offense. 18 (4) If the injury arises from the transmission of 19 unsolicited bulk electronic mail, the injured person, 20 other than an electronic mail service provider, may also 21 recover attorney's fees and costs, and may elect, in lieu 22 of actual damages, to recover the lesser of $10 for each 23 and every unsolicited bulk electronic mail message 24 transmitted in violation of this Section, or $25,000 per 25 day. The injured person shall not have a cause of action 26 against the electronic mail service provider that merely 27 transmits the unsolicited bulk electronic mail over its 28 computer network. 29 (5) If the injury arises from the transmission of 30 unsolicited bulk electronic mail, an injured electronic 31 mail service provider may also recover attorney's fees 32 and costs, and may elect, in lieu of actual damages, to 33 recover the greater of $10 for each and every unsolicited 34 electronic mail advertisement transmitted in violation of HB2616 Engrossed -8- LRB9104846BBpr 1 this Section, or $25,000 per day. 2 (6) The provisions of this Section shall not be 3 construed to limit any person's right to pursue any 4 additional civil remedy otherwise allowed by law. 5 (c) Whoever suffers loss by reason of a violation of 6 subsection (a)(4) of this Section may, in a civil action 7 against the violator, obtain appropriate relief. In a civil 8 action under this Section, the court may award to the 9 prevailing party reasonable attorney's fees and other 10 litigation expenses. 11 (Source: P.A. 86-762.) 12 Section 905. The Consumer Fraud and Deceptive Business 13 Practices Act is amended by changing Section 2Z as follows: 14 (815 ILCS 505/2Z) (from Ch. 121 1/2, par. 262Z) 15 Sec. 2Z. Violations of other Acts. Any person who 16 knowingly violates the Automotive Repair Act, the Dance 17 Studio Act, the Physical Fitness Services Act, the Hearing 18 Instrument Consumer Protection Act, the Illinois Union Label 19 Act, the Job Referral and Job Listing Services Consumer 20 Protection Act, the Travel Promotion Consumer Protection Act, 21 the Credit Services Organizations Act, the Automatic 22 Telephone Dialers Act, the Pay-Per-Call Services Consumer 23 Protection Act, the Telephone Solicitations Act, the Illinois 24 Funeral or Burial Funds Act, the Cemetery Care Act,orthe 25 Pre-Need Cemetery Sales Act, or the Electronic Mail Act 26 commits an unlawful practice within the meaning of this Act. 27 (Source: P.A. 89-72, eff. 12-31-95; 89-615, eff. 8-9-96; 28 90-426, eff. 1-1-98.)