BILL REQ. #:  S-1295.1 

Read first time 02/10/2003.   Referred to Committee on Technology & Communications.

     AN ACT Relating to commercial electronic mail; amending RCW 19.190.010 and 19.190.040; adding new sections to chapter 19.190 RCW creating a new section; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature finds that the volume of commercial electronic mail is growing, and the consumer protection division of the attorney general's office reports an increasing number of consumer complaints about commercial electronic mail. Interactive computer service providers indicate that their systems sometimes cannot handle the volume of commercial electronic mail being sent and that filtering systems fail to screen out unsolicited commercial electronic mail messages when senders use a third party's internet domain name without the third party's permission, or otherwise misrepresent the message's point of origin. The legislature seeks to provide some immediate relief to interactive computer service providers by prohibiting the sending of commercial electronic mail messages that use a third party's internet domain name without the third party's permission, misrepresent the message's point of origin, or contain untrue or misleading information in the subject line.

Sec. 2   RCW 19.190.010 and 1999 c 289 s 1 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.
     (3) "Electronic mail" means an electronic message or computer file containing an image of a message that is transmitted between two or more computers or electronic terminals and includes messages that are transmitted within or between computer networks.
     (4) "Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.
     (((4))) (5) "Established business relationship" means a prior or existing relationship formed by a voluntary communication between a person and the recipient with or without an exchange of consideration, on the basis of an inquiry, application, purchase, or use by the recipient regarding products or services offered by such person.
     (6) "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))) (7) "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))) (8) "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))) (9) "Person" means a person, corporation, partnership, or association.
     (10) "Unsolicited commercial electronic mail message" means an electronic mail message sent without the consent of the recipient, by a person with whom the recipient does not have an established business relationship. Unsolicited commercial electronic messages do not include electronic mail where the sender is a person using electronic mail to communicate:
     (a) Exclusively with members; or
     (b) With its employees or contractors, or both.

Sec. 3   RCW 19.190.040 and 1998 c 149 s 5 are each amended to read as follows:
     (1) Damages to the recipient of a commercial electronic mail message ((sent in)) resulting from a violation of this chapter ((are five hundred)) shall be the greater of ten dollars for each unsolicited commercial electronic mail message received, or actual damages, ((whichever is greater)) but are not to exceed twenty-five thousand dollars for each day that the recipient received such messages.
     (2) Damages to an interactive computer service resulting from a violation of this chapter ((are one thousand)) shall be the greater of ten dollars for each unsolicited commercial electronic mail message received, or actual damages, ((whichever is greater)) but not to exceed twenty-five thousand dollars for each day that the interactive computer service received such messages.

NEW SECTION.  Sec. 4   A new section is added to chapter 19.190 RCW to read as follows:
     No person may initiate the transmission, conspire with another to initiate the transmission, or assist the transmission of an unsolicited commercial electronic mail message from a computer located in Washington state or to an electronic mail address that the sender knows, or has reason to know, is held by a Washington state resident that fails to include "ADV:" as the first four characters in the subject line or which fails to provide a mechanism allowing recipients to easily and at no cost inform senders that they are Washington state residents and remove themselves from the sender's electronic mail address lists so that they are not included in future mailings.

NEW SECTION.  Sec. 5   A new section is added to chapter 19.190 RCW to read as follows:
     No interactive computer service may be held liable for:
     (1) Serving as an intermediary between the sender and recipient in the transmission of a commercial electronic mail message sent in violation of this chapter; or
     (2) Providing transmission over the interactive computer service's computer network or facilities of an unsolicited commercial electronic mail message sent in violation of this chapter.

NEW SECTION.  Sec. 6   A new section is added to chapter 19.190 RCW to read as follows:
     At the request of any party to an action brought pursuant to this chapter, the court may, in its discretion, conduct all legal proceedings in such a way as to protect the secrecy and security of the computer, computer network, computer data, computer program, and computer software involved to prevent possible recurrence of the same or a similar act by another person and to protect any trade secrets of any party.

NEW SECTION.  Sec. 7   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.