BILL REQ. #:  S-3456.1 

Read first time 01/14/2004.   Referred to Committee on Technology & Communications.

     AN ACT Relating to commercial electronic mail; amending RCW 19.190.010, 19.190.020, 19.190.030, and 19.190.040; adding new sections to chapter 19.190 RCW; prescribing penalties; and providing an effective date.

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

Sec. 1   RCW 19.190.010 and 2003 c 137 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 or a commercial electronic text message when the person providing the assistance knows or consciously avoids knowing that the initiator of the commercial electronic mail message or the commercial electronic text 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) "Commercial electronic text message" means an electronic text message sent to promote real property, goods, or services for sale or lease.
     (4) "Direct consent" means that the recipient has expressly consented to receive electronic mail from the sender, either in response to a clear and conspicuous request to consent or at the recipient's own initiative.
     (5) "Electronic mail" or "e-mail" means an electronic message that is sent to an electronic mail address and transmitted between two or more telecommunications devices, computers, or electronic devices capable of receiving electronic messages, whether or not the message is converted to hard copy format after receipt or is viewed upon transmission or stored for later retrieval. "Electronic mail" or "e-mail" includes electronic messages that are transmitted through a local, regional, or global computer network.
     (6) "Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.
     (((5))) (7) "Electronic text message" means a text message sent to a cellular telephone or pager equipped with short message service or any similar capability, whether the message is initiated as a short message service message or as an electronic mail message.
     (((6))) (8) "Initiate" means to transmit or cause to be transmitted a commercial electronic mail message or assist in the transmission of a commercial electronic mail message by providing electronic mail addresses where the electronic mail message may be sent, but does not include the routine transmission of commercial electronic mail through the network or system of a telecommunications utility or interactive service provider through its network or system.
     (9) "Initiate the transmission" refers to the action by the original sender of an electronic mail message or an electronic text message, not to the action by any intervening interactive computer service or wireless network 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.
     (((7))) (10) "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.
     (((8))) (11) "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.
     (((9))) (12) "Person" means a person, corporation, partnership, or association.
     (13) "Preexisting or current business relationship," as used in connection with the sending of a commercial electronic mail message, means that the recipient has made an inquiry and has provided his or her electronic mail address, or had made an application, purchase, or transaction, with or without consideration, regarding products or services offered by the sender.
     Commercial electronic mail sent pursuant to the exemption provided for a preexisting or current business relationship shall provide the recipient of the commercial electronic mail with the ability to "opt-out" from receiving further commercial electronic mail by calling a toll-free telephone number or by sending an "unsubscribe" electronic mail message to the sender offering the products or services in the commercial electronic mail message. This opt-out provision does not apply to recipients who are receiving free electronic mail service with regard to commercial electronic mail messages sent by the interactive computer service.
     (14) "Recipient" means the addressee of an unsolicited commercial electronic mail message. If an addressee of an unsolicited commercial electronic mail message has one or more electronic mail addresses to which unsolicited commercial electronic mail is sent, the addressee shall be deemed to be a separate recipient for each electronic mail address to which the electronic mail is sent.
     (15) "Unsolicited commercial electronic mail message" means commercial electronic mail sent to a recipient who meets both of the following criteria:
     (a) The recipient has not provided direct consent to receive commercial electronic mail from the sender;
     (b) The recipient does not have a preexisting or current business relationship, as defined in this section, with the sender promoting the lease, sale, rental, gift offer, or other disposition of any property, goods, services, or extension of credit.
     (16) "Washington electronic mail address" or "Washington e-mail address" means any of the following:
     (a) An electronic mail address furnished by an interactive service provider that sends bills for furnishing and maintaining that electronic mail address to a mailing address in this state.
     (b) An electronic mail address furnished to a resident of this state.

Sec. 2   RCW 19.190.020 and 1999 c 289 s 2 are each amended to read as follows:
     (1) No person may initiate the transmission, conspire with another to initiate the transmission, or assist the transmission, of ((a)) an unsolicited 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)) an unsolicited commercial electronic mail message; ((or))
     (b) Contains false or misleading information in the subject line; or
     (c) Has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.
     (2) For purposes of this section, a person knows that the intended recipient of ((a)) an unsolicited 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 1999 c 289 s 3 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)) an unsolicited commercial electronic mail message 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)) an unsolicited commercial electronic mail message; ((or))
     (b) Contains false or misleading information in the subject line; or
     (c) Has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.
     (2) It is a violation of the consumer protection act, chapter 19.86 RCW, to assist in the transmission of ((a)) an unsolicited commercial electronic mail message, when the person providing the assistance knows, or consciously avoids knowing, that the initiator of the unsolicited 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.

Sec. 4   RCW 19.190.040 and 2003 c 137 s 5 are each amended to read as follows:
     (1) In addition to any other remedies provided by this section or by any other provisions of law, the recipient of unsolicited commercial electronic mail transmitted in violation of this section or an interactive computer service may bring an action against a person that violates any provision of this section to recover damages.
     (a) Damages to the recipient of ((a)) an unsolicited commercial electronic mail message ((or a commercial electronic text message)) sent in violation of this chapter are ((five hundred)) one thousand dollars, up to one million dollars per incident, or actual damages, whichever is greater.
     (((2))) (b) Damages to an interactive computer service resulting from a violation of this chapter are one thousand dollars, or actual damages, whichever is greater.
     (c) Damages to the recipient of a commercial electronic text message sent in violation of this chapter are five hundred dollars, or actual damages, whichever is greater.
     (d) The recipient or an interactive computer service, if the prevailing plaintiff, may also recover reasonable attorneys' fees and costs.
     (2) If the court finds that the defendant established and implemented, with due care, practices and procedures reasonably designed to effectively prevent unsolicited commercial electronic mail that are in violation of this section, the court shall reduce the damages recoverable under subsection (1) of this section to a maximum of one hundred dollars for each unsolicited commercial electronic mail, or a maximum of one hundred thousand dollars per incident.

NEW SECTION.  Sec. 5   A new section is added to chapter 19.190 RCW to read as follows:
     (1) Notwithstanding any other provisions of law, a person may not do any of the following:
     (a) Initiate or advertise in unsolicited commercial electronic mail from Washington or advertise in unsolicited electronic mail sent from Washington;
     (b) Initiate or advertise in unsolicited commercial electronic mail to a Washington electronic mail address, or advertise in unsolicited commercial electronic mail sent to a Washington electronic mail address.
     (2) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect any other provision or application that can be given effect without the invalid provision or application.

NEW SECTION.  Sec. 6   A new section is added to chapter 19.190 RCW to read as follows:
     (1) It is unlawful for any person to collect electronic mail addresses posted on the internet if the purpose of the collection is for the electronic mail addresses to be used to do either of the following:
     (a) Initiate or advertise in unsolicited commercial electronic mail from Washington, or advertise in unsolicited commercial electronic mail sent from Washington;
     (b) Initiate or advertise in unsolicited commercial electronic mail to a Washington electronic mail address, or advertise in unsolicited commercial electronic mail sent to a Washington electronic mail address.
     (2) It is unlawful for any person to use an electronic mail address obtained by using automated means based on a combination of names, letters, or numbers to do either of the following:
     (a) Initiate or advertise in unsolicited commercial electronic mail from Washington, or advertise in an unsolicited commercial electronic mail sent from Washington;
     (b) Initiate or advertise in unsolicited commercial electronic mail to a Washington electronic mail address, or advertise in an unsolicited commercial electronic mail sent to a Washington electronic mail address.
     (3) It is unlawful for any person to use scripts or other automated means to register for multiple electronic mail accounts from which to do, or to enable another person to do, either of the following:
     (a) Initiate or advertise in unsolicited commercial electronic mail from Washington, or advertise in an unsolicited commercial electronic mail sent from Washington;
     (b) Initiate or advertise in unsolicited commercial electronic mail to a Washington electronic mail address, or advertise in an unsolicited commercial electronic mail sent to a Washington electronic mail address.

NEW SECTION.  Sec. 7   A new section is added to chapter 19.190 RCW to read as follows:
     (1) For purposes of this section, the following words have the following meanings:
     (a) "Electronic mail advertisement" means any electronic mail message, the principal purpose of which is to promote, directly or indirectly, the sale or other distribution of goods or services to the recipient.
     (b) "Unsolicited electronic mail advertisement" means any electronic mail advertisement that meets both of the following requirements:
     (i) It is addressed to a recipient with whom the initiator does not have an existing business or personal relationship.
     (ii) It is not sent at the request of or with the express consent of the recipient.
     (c) "Initiation" of an unsolicited electronic mail advertisement refers to the action by the initial sender of the electronic mail advertisement. It does not refer to the actions of any intervening electronic mail service provider that may handle or retransmit the electronic message.
     (d) "Registered user" means any individual, corporation, or other entity that maintains an electronic mail address with an electronic mail service provider.
     (2) No registered user of an interactive computer service shall use or cause to be used that service's equipment located in this state in violation of that electronic mail service's policy prohibiting or restricting the use of its service or equipment for the initiation of unsolicited electronic mail advertisements.
     (3) No individual, corporation, or other entity shall use or cause to be used, by initiating an unsolicited electronic mail advertisement, an interactive computer service located in this state in violation of that service's policy prohibiting or restricting the use of its equipment to deliver unsolicited electronic mail advertisements to its registered users.
     (4) An interactive computer service shall not be required to create a policy prohibiting or restricting the use of its equipment for the initiation or delivery of unsolicited electronic mail advertisements.
     (5) Nothing in this section shall be construed to limit or restrict the rights of an interactive computer service under section 230(c)(1) of Title 47 of the United States Code, or any decision of an interactive computer service to permit or to restrict access to or use of its system, or any exercise of its editorial function.
     (6)(a) In addition to any other action available under law, any interactive computer service whose policy on unsolicited electronic mail advertisements is violated as provided in this section may bring a civil action to recover the actual monetary loss suffered by that service by reason of that violation, or damages of fifty dollars for each electronic mail message initiated or delivered in violation of this section, up to a maximum of twenty-five thousand dollars per day, whichever amount is greater.
     (b) In any action brought pursuant to (a) of this subsection, the court may award reasonable attorneys' fees to a prevailing party.
     (c)(i) In any action brought pursuant to (a) of this subsection, the interactive computer service shall be required to establish as an element of its cause of action that prior to the alleged violation, the defendant had actual notice of both of the following:
     (A) The interactive computer service's policy on unsolicited electronic mail advertising;
     (B) The fact that the defendant's unsolicited electronic mail advertisements would use or cause to be used the interactive computer service's equipment located in this state.
     (ii) In this regard, the legislature finds that with rapid advances in internet technology, and electronic mail technology in particular, interactive computer services are already experimenting with embedding policy statements directly into the software running on the computers used to provide electronic mail services in a manner that displays the policy statements every time an electronic mail delivery is requested. While the state of the technology does not support such a finding at present, the legislature believes that, in a given case at some future date, a showing that notice was supplied via electronic means between the sending and receiving computers could be held to constitute actual notice to the sender for purposes of this subsection (6)(c)(ii).
     (d)(i) An interactive computer service who has brought an action against a party for a violation subject to RCW 19.190.030 or 19.190.040 shall not bring an action against that party under this section for the same unsolicited commercial electronic mail advertisement.
     (ii) An interactive computer service who has brought an action against a party for a violation of this section shall not bring an action against that party under RCW 19.190.030 or 19.190.040 for the same unsolicited commercial electronic mail advertisement.
     (7) A cause of action that is in existence before the effective date of this act shall not be affected by this act, but shall instead be governed by the law that was in effect at the time the cause of action arose.

NEW SECTION.  Sec. 8   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.

NEW SECTION.  Sec. 9   This act takes effect July 1, 2004.