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91_HB2616ham001
LRB9104846WHmbam04
1 AMENDMENT TO HOUSE BILL 2616
2 AMENDMENT NO. . Amend House Bill 2616 by replacing
3 everything after the enacting clause with the following:
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
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1 action by the initial sender of the electronic mail message.
2 "Initiation" does not refer to the actions of any intervening
3 electronic mail service provider that may handle or
4 retransmit the electronic mail message.
5 "Registered user" means any individual or entity that
6 maintains an electronic mail address with an electronic mail
7 service provider.
8 "Electronic mail address" means a destination, commonly
9 expressed as a string of characters, to which electronic mail
10 may be sent or delivered.
11 "Internet domain name" refers to a globally unique,
12 hierarchical reference to an Internet host or service,
13 assigned through centralized Internet naming authorities,
14 comprising a series of character strings separated by
15 periods, with the right-most string specifying the top of the
16 hierarchy.
17 Section 10. Unsolicited or misleading electronic mail;
18 prohibition.
19 (a) No individual or entity may initiate or cause to be
20 initiated an electronic mail advertisement if the electronic
21 mail advertisement (i) uses a third party's Internet domain
22 name without permission of the third party, or otherwise
23 misrepresents any information in identifying the point of
24 origin or the transmission path of an electronic mail
25 advertisement or (ii) contains false or misleading
26 information in the subject line.
27 (b) This Section applies when the unsolicited electronic
28 mail advertisement is delivered to an Illinois resident via
29 an electronic mail service provider's service or equipment
30 located in this State.
31 (c) Any person, other than an electronic mail service
32 provider, who suffers actual damages as a result of a
33 violation of this Section committed by any individual or
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1 entity may bring an action against such individual or entity.
2 The injured person may recover attorney's fees and costs, and
3 may elect, in lieu of recovery of actual damages, to recover
4 the lesser of $10 for each and every unsolicited electronic
5 mail advertisement transmitted in violation of this Section,
6 or $25,000 per day. The injured person shall not have a
7 cause of action against the electronic mail service provider
8 that merely transmits the unsolicited electronic mail
9 advertisement over its computer network.
10 (d) Any electronic mail service provider who suffers
11 actual damages as a result of a violation of this Section
12 committed by any individual or entity may bring an action
13 against such individual or entity. The injured person may
14 recover attorney's fees and costs, and may elect, in lieu of
15 recovery of actual damages, to recover the lesser of $10 for
16 each and every unsolicited electronic mail advertisement
17 transmitted in violation of this Section, or $25,000 per day.
18 (e) The provisions of this Section shall not be
19 construed to limit any person's right to pursue any
20 additional civil remedy otherwise allowed by law.
21 (f) An electronic mail service provider may, upon its
22 own initiative, block the receipt or transmission through its
23 service of any electronic mail advertisement that it
24 reasonably believes is, or will be, sent in violation of this
25 Section.
26 (g) No electronic mail service provider may be held
27 liable for any action voluntarily taken in good faith to
28 block the receipt or transmission through its service of any
29 electronic mail advertisement which it reasonably believes
30 is, or will be, sent in violation of this Section.
31 Section 15. Consumer Fraud and Deceptive Business
32 Practices Act. In addition to any other penalties specified
33 in this Act, violation of this Act constitutes an unlawful
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1 practice under the Consumer Fraud and Deceptive Business
2 Practices Act.
3 Section 900. The Criminal Code of 1961 is amended by
4 changing Sections 16D-2 and 16D-3 as follows:
5 (720 ILCS 5/16D-2) (from Ch. 38, par. 16D-2)
6 Sec. 16D-2. Definitions. As used in this Article,
7 unless the context otherwise indicates:
8 (a) "Computer" means a device that accepts, processes,
9 stores, retrieves or outputs data, and includes but is not
10 limited to auxiliary storage and telecommunications devices
11 connected to computers.
12 (a-5) "Computer network" means a set of related, remotely
13 connected devices and any communications facilities including
14 more than one computer with the capability to transmit data
15 among them through the communications facilities.
16 (b) "Computer program" or "program" means a series of
17 coded instructions or statements in a form acceptable to a
18 computer which causes the computer to process data and supply
19 the results of the data processing.
20 (b-5) "Computer services" means computer time or
21 services, including data processing services, Internet
22 services, electronic mail services, electronic message
23 services, or information or data stored in connection
24 therewith.
25 (c) "Data" means a representation of information,
26 knowledge, facts, concepts or instructions, including program
27 documentation, which is prepared in a formalized manner and
28 is stored or processed in or transmitted by a computer. Data
29 shall be considered property and may be in any form including
30 but not limited to printouts, magnetic or optical storage
31 media, punch cards or data stored internally in the memory of
32 the computer.
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1 (c-5) "Electronic mail service provider" means any person
2 who (1) is an intermediary in sending or receiving electronic
3 mail and (2) provides to end-users of electronic mail
4 services the ability to send or receive electronic mail.
5 (d) In addition to its meaning as defined in Section
6 15-1 of this Code, "property" means: (1) electronic impulses;
7 (2) electronically produced data; (3) confidential,
8 copyrighted or proprietary information; (4) private
9 identification codes or numbers which permit access to a
10 computer by authorized computer users or generate billings to
11 consumers for purchase of goods and services, including but
12 not limited to credit card transactions and
13 telecommunications services or permit electronic fund
14 transfers; (5) software or programs in either machine or
15 human readable form; or (6) any other tangible or intangible
16 item relating to a computer or any part thereof.
17 (e) "Access" means to use, instruct, communicate with,
18 store data in, retrieve or intercept data from, or otherwise
19 utilize any services of a computer.
20 (f) "Services" includes but is not limited to computer
21 time, data manipulation or storage functions.
22 (g) "Vital services or operations" means those services
23 or operations required to provide, operate, maintain, and
24 repair network cabling, transmission, distribution, or
25 computer facilities necessary to ensure or protect the public
26 health, safety, or welfare. Public health, safety, or
27 welfare include, but are not limited to, services provided by
28 medical personnel or institutions, fire departments,
29 emergency services agencies, national defense contractors,
30 armed forces or militia personnel, private and public utility
31 companies, or law enforcement agencies.
32 (Source: P.A. 85-926.)
33 (720 ILCS 5/16D-3) (from Ch. 38, par. 16D-3)
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1 Sec. 16D-3. Computer Tampering.
2 (a) A person commits the offense of computer tampering
3 when he knowingly and without the authorization of a
4 computer's owner, as defined in Section 15-2 of this Code, or
5 in excess of the authority granted to him:
6 (1) Accesses or causes to be accessed a computer or
7 any part thereof, or a program or data;
8 (2) Accesses or causes to be accessed a computer or
9 any part thereof, or a program or data, and obtains data
10 or services;
11 (3) Accesses or causes to be accessed a computer or
12 any part thereof, or a program or data, and damages or
13 destroys the computer or alters, deletes or removes a
14 computer program or data;
15 (4) Inserts or attempts to insert a "program" into
16 a computer or computer program knowing or having reason
17 to believe that such "program" contains information or
18 commands that will or may damage or destroy that
19 computer, or any other computer subsequently accessing or
20 being accessed by that computer, or that will or may
21 alter, delete or remove a computer program or data from
22 that computer, or any other computer program or data in a
23 computer subsequently accessing or being accessed by that
24 computer, or that will or may cause loss to the users of
25 that computer or the users of a computer which accesses
26 or which is accessed by such "program";.
27 (5) Falsifies or forges electronic mail
28 transmission information or other routing information in
29 any manner in connection with the transmission of
30 unsolicited bulk electronic mail through or into the
31 computer network of an electronic mail service provider
32 or its subscribers;
33 (a-5) It shall be unlawful for any person knowingly to
34 sell, give, or otherwise distribute or possess with the
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1 intent to sell, give, or distribute software which (1) is
2 primarily designed or produced for the purpose of
3 facilitating or enabling the falsification of electronic mail
4 transmission information or other routing information; (2)
5 has only a limited commercially significant purpose or use
6 other than to facilitate or enable the falsification of
7 electronic mail transmission information or other routing
8 information; or (3) is marketed by that person or another
9 acting in concert with that person with that person's
10 knowledge for use in facilitating or enabling the
11 falsification of electronic mail transmission information or
12 other routing information.
13 (b) Sentence.
14 (1) A person who commits the offense of computer
15 tampering as set forth in subsection (a)(1), (a)(5), or
16 (a-5) of this Section shall be guilty of a Class B
17 misdemeanor.
18 (2) A person who commits the offense of computer
19 tampering as set forth in subsection (a)(2) of this
20 Section shall be guilty of a Class A misdemeanor and a
21 Class 4 felony for the second or subsequent offense.
22 (3) A person who commits the offense of computer
23 tampering as set forth in subsection (a)(3) or subsection
24 (a)(4) of this Section shall be guilty of a Class 4
25 felony and a Class 3 felony for the second or subsequent
26 offense.
27 (4) If the injury arises from the transmission of
28 unsolicited bulk electronic mail, the injured person,
29 other than an electronic mail service provider, may also
30 recover attorney's fees and costs, and may elect, in lieu
31 of actual damages, to recover the lesser of $10 for each
32 and every unsolicited bulk electronic mail message
33 transmitted in violation of this Section, or $25,000 per
34 day. The injured person shall not have a cause of action
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1 against the electronic mail service provider that merely
2 transmits the unsolicited bulk electronic mail over its
3 computer network.
4 (5) If the injury arises from the transmission of
5 unsolicited bulk electronic mail, an injured electronic
6 mail service provider may also recover attorney's fees
7 and costs, and may elect, in lieu of actual damages, to
8 recover the greater of $10 for each and every unsolicited
9 electronic mail advertisement transmitted in violation of
10 this Section, or $25,000 per day.
11 (6) The provisions of this Section shall not be
12 construed to limit any person's right to pursue any
13 additional civil remedy otherwise allowed by law.
14 (c) Whoever suffers loss by reason of a violation of
15 subsection (a)(4) of this Section may, in a civil action
16 against the violator, obtain appropriate relief. In a civil
17 action under this Section, the court may award to the
18 prevailing party reasonable attorney's fees and other
19 litigation expenses.
20 (Source: P.A. 86-762.)
21 Section 905. The Consumer Fraud and Deceptive Business
22 Practices Act is amended by changing Section 2Z as follows:
23 (815 ILCS 505/2Z) (from Ch. 121 1/2, par. 262Z)
24 Sec. 2Z. Violations of other Acts. Any person who
25 knowingly violates the Automotive Repair Act, the Dance
26 Studio Act, the Physical Fitness Services Act, the Hearing
27 Instrument Consumer Protection Act, the Illinois Union Label
28 Act, the Job Referral and Job Listing Services Consumer
29 Protection Act, the Travel Promotion Consumer Protection Act,
30 the Credit Services Organizations Act, the Automatic
31 Telephone Dialers Act, the Pay-Per-Call Services Consumer
32 Protection Act, the Telephone Solicitations Act, the Illinois
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1 Funeral or Burial Funds Act, the Cemetery Care Act, or the
2 Pre-Need Cemetery Sales Act, or the Electronic Mail Act
3 commits an unlawful practice within the meaning of this Act.
4 (Source: P.A. 89-72, eff. 12-31-95; 89-615, eff. 8-9-96;
5 90-426, eff. 1-1-98.)".