1037-S2 AMS WM JONE 0001

1037-S2 AMS WM JONE 0001

2SHB 1037 - S COMM AMD

By Committee on Ways & Means

Strike everything after the enacting clause and insert the following:

"Sec. 1. RCW 19.190.010 and 1998 c 149 s 2 are each amended to read as follows:

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Assist the transmission" means actions taken by a person to provide substantial assistance or support which enables any person to formulate, compose, send, originate, initiate, or transmit a commercial electronic mail message when the person providing the assistance knows or consciously avoids knowing that the initiator of the commercial electronic mail message is engaged, or intends to engage, in any practice that violates the consumer protection act.

(2) "Commercial electronic mail message" means an electronic mail message sent for the purpose of promoting real property, goods, or services for sale or lease. It does not mean an electronic mail message to which an interactive computer service provider has attached an advertisement in exchange for free use of an electronic mail account, when the sender has agreed to such an arrangement.

((~~(2)~~)) (3) "Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.

((~~(3)~~)) (4) "Initiate the transmission" refers to the action by the original sender of an electronic mail message, not to the action by any intervening interactive computer service that may handle or retransmit the message, unless such intervening interactive computer service assists in the transmission of an electronic mail message when it knows, or consciously avoids knowing, that the person initiating the transmission is engaged, or intends to engage, in any act or practice that violates the consumer protection act.

((~~(4)~~)) (5) "Interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the internet and such systems operated or services offered by libraries or educational institutions.

((~~(5)~~)) (6) "Internet domain name" refers to a globally unique, hierarchical reference to an internet host or service, assigned through centralized internet naming authorities, comprising a series of character strings separated by periods, with the right-most string specifying the top of the hierarchy.

(7) "Person" means a person, corporation, partnership, or association.

(8) "Unsolicited commercial electronic mail message" means a commercial electronic mail message:

(a) Sent without a recipient's prior consent;

(b) Sent to a recipient with whom the sender does not have a preexisting or ongoing business or personal relationship; and

Sec. 2. RCW 19.190.020 and 1998 c 149 s 3 are each amended to read as follows:

(1) No person((~~, corporation, partnership, or association~~)) may initiate the transmission, conspire with another to initiate the transmission, or assist the transmission, of a commercial electronic mail message from a computer located in Washington or to an electronic mail address that the sender knows, or has reason to know, is held by a Washington resident that:

(a) Uses a third party's internet domain name without permission of the third party, or otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of a commercial electronic mail message; ((or))

(b) Contains false or misleading information in the subject line; or

(c) Fails to prominently display in the body of an unsolicited commercial electronic mail message the following identifying information: The legal name, mailing address, physical address, true electronic mail address, and telephone number, including area code, of the person initiating the transmission of the message, or his or her registered agent in the state of Washington.

(2) For purposes of this section, a person((~~, corporation, partnership, or association~~)) knows that the intended recipient of a commercial electronic mail message is a Washington resident if that information is available, upon request, from the registrant of the internet domain name contained in the recipient's electronic mail address.

Sec. 3. RCW 19.190.030 and 1998 c 149 s 4 are each amended to read as follows:

(1) It is a violation of the consumer protection act, chapter 19.86 RCW, to conspire with another person to initiate the transmission or to initiate the transmission of a commercial electronic mail message that:

(b) Contains false or misleading information in the subject line; or

(2) It is a violation of the consumer protection act, chapter 19.86 RCW, to assist in the transmission of a commercial electronic mail message, when the person providing the assistance knows, or consciously avoids knowing, that the initiator of the commercial electronic mail message is engaged, or intends to engage, in any act or practice that violates the consumer protection act.

(3) The legislature finds that the practices covered by this chapter are matters vitally affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW. A violation of this chapter is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the consumer protection act, chapter 19.86 RCW.

NEW SECTION. Sec. 4. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(3) "Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.

(4) "Initiate the transmission" refers to the action by the original sender of an electronic mail message, not to the action by any intervening interactive computer service that may handle or retransmit the message, unless such intervening interactive computer service assists in the transmission of an electronic mail message when it knows, or consciously avoids knowing, that the person initiating the transmission is engaged, or intends to engage, in any act or practice that violates the consumer protection act.

(5) "Interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the internet and such systems operated or services offered by libraries or educational institutions.

(6) "Person" means a person, corporation, partnership, or association.

(7) "Publish" means to do either of the following with respect to the interactive computer service provider's policy on unsolicited commercial electronic mail messages:

(a) Make that policy available upon request in written form at no charge; or

(b) Display that policy through an on-line notice on the internet home page of the interactive computer service provider, or a page accessible through a conspicuous link on the internet home page of the interactive computer service provider.

(8) "Registered user" means a person that maintains an electronic mail address with an interactive computer service provider.

(9) "Unsolicited commercial electronic mail message" means a commercial electronic mail message:

(a) Sent without a recipient's prior consent;

(b) Sent to a recipient with whom the sender does not have a preexisting or ongoing business or personal relationship; and

NEW SECTION. Sec. 5. No registered user shall use or cause to be used the registered user's interactive computer service provider's service or equipment located in this state in violation of the interactive computer service provider's published policy prohibiting or restricting the use of its service or equipment for the initiation of unsolicited commercial electronic mail messages.

NEW SECTION. Sec. 6. No person shall initiate, conspire with another person to initiate, or assist the transmission of an unsolicited commercial electronic mail message and use, or cause to be used, an interactive computer service provider's equipment located in this state in violation of that interactive computer service provider's published policy prohibiting or restricting the use of its service or equipment to deliver unsolicited commercial electronic messages.

NEW SECTION. Sec. 7. An interactive computer service provider is not required to create a policy prohibiting or restricting the use of its service or equipment for the initiation or delivery of unsolicited commercial electronic mail messages.

NEW SECTION. Sec. 8. This chapter does not limit or restrict the rights of an interactive computer service provider under Section 230(c)(1) of Title 47 of the United States Code, under chapter 19.190 RCW, or any decision of an interactive computer service provider to permit to restrict access to or use of its system, or any exercise of its editorial function.

NEW SECTION. Sec. 9. (1) In addition to any other action available under law, any interactive computer service provider whose published policy on unsolicited commercial electronic mail messages is violated as provided in this chapter may bring a civil action against a person or a registered user:

(a) Who initiates or conspires to initiate a message transmitted in violation of the interactive computer service provider's published policy; or

(b) Who assists in the transmission of a message, when the person providing the assistance knows, or consciously avoids knowing, that the person initiating the transmission is engaged in, or intends to engage in, any acts or practices that violate an interactive computer service provider's published policy.

(2) In any action brought pursuant to subsection (1) of this section, an interactive computer service provider shall be required to establish as an element of its cause of action that prior to the alleged violation, the defendant had notice of both of the following:

(a) The policy of the interactive computer service provider regarding unsolicited commercial electronic mail messages; and

(b) The fact that the defendant's unsolicited commercial electronic mail message would use or cause to be used the interactive computer service provider's equipment located in this state.

(3) In addition to any other action available under law, a customer of an interactive computer service provider who receives commercial electronic mail in violation of the interactive computer service provider's published policy on unsolicited commercial electronic mail messages as provided in this chapter may bring a civil action against a person:

(a) Who initiates or conspires to initiate a message to a customer that is transmitted in violation of an interactive computer service provider's published policy; or

(b) Who assists in the transmission of a message to a customer, when the person providing the assistance knows, or consciously avoids knowing, that the person initiating the transmission is engaged in, or intends to engage in, any acts or practices that violate an interactive computer service provider's published policy.

(4) In any action brought pursuant to subsection (3) of this section, a customer of an interactive computer service provider shall be required to establish as an element of his or her cause of action that prior to the alleged violation, the defendant had notice of both of the following:

(a) The policy of the customer's interactive computer service provider regarding unsolicited commercial electronic mail messages; and

(b) The fact that the defendant's unsolicited commercial electronic mail message would use or cause to be used the interactive computer service provider's equipment located in this state.

(5) An interactive computer service provider may recover the actual monetary loss suffered by that provider by reason of a violation of its published policy, or liquidated damages of fifty dollars for each message initiated or delivered in violation of this chapter, up to a maximum of twenty-five thousand dollars per day, whichever amount is greater.

(6) A customer may recover liquidated damages of five hundred dollars for each unsolicited commercial electronic mail message received by the customer in violation of this chapter, up to a maximum of twenty-five thousand dollars per day, whichever amount is greater.

(7) The prevailing party in any action brought under this section is entitled to recover costs and reasonable attorneys' fees.

NEW SECTION. Sec. 10. RCW 19.190.005 (Findings) and 1998 c 149 s 1 are each repealed.

NEW SECTION. Sec. 11. Sections 4 through 9 of this act constitute a new chapter in Title 19 RCW."

2SHB 1037 - S COMM AMD

By Committee on Ways & Means

On page 1, line 1 of the title, after "mail;" strike the remainder of the title and insert "amending RCW 19.190.010, 19.190.020, and 19.190.030; adding a new chapter to Title 19 RCW; repealing RCW 19.190.005; and prescribing penalties."