Amendment ASA1-AB685

LRBs0263/1

CTS:wlj:rs

2005 - 2006 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2005 ASSEMBLY BILL 685

October 17, 2005 - Offered by Representative Davis.

AB685-ASA1,1,4 An Act to amend 100.264 (2) (intro.) and 165.25 (4) (ar); and to create 100.54 and 943.201 (2m) of the statutes; relating to: regulating certain electronic mail solicitations and practices related to electronic mail solicitations and providing penalties.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB685-ASA1, s. 1 Section 1. 100.264 (2) (intro.) of the statutes is amended to read:

AB685-ASA1,2,2 100.264 (2) Supplemental forfeiture. (intro.) If a fine or a forfeiture is imposed on a person for a violation under s. 100.16, 100.17, 100.18, 100.182, 100.183, 100.20, 100.205, 100.207, 100.21, 100.30 (3), 100.35, 100.44 or, 100.46, or 100.54 or a rule promulgated under one of those sections, the person shall be subject to a supplemental forfeiture not to exceed $10,000 for that violation if the conduct by the defendant, for which the violation was imposed, was perpetrated against an elderly person or disabled person and if the court finds that any of the following factors is present:

AB685-ASA1, s. 2 Section 2. 100.54 of the statutes is created to read:

AB685-ASA1,2,4 100.54 Electronic mail solicitations. (1) Definitions. In this section:

AB685-ASA1,2,7 (a) "Electronic mail service provider" means any person that is an intermediary in providing Internet users with an electronic mail address and the ability to send or receive electronic mail.

AB685-ASA1,2,12 (b) "Electronic mail solicitation" means an electronic mail message, including any program or document attached to the messages, that is sent by a person other than a state or federal agency without the consent of the recipient for the purpose of selling or leasing or offering to sell or lease property, goods, or services to the recipient.

AB685-ASA1,2,13 (bg) "Identifying information" means any of the following:

AB685-ASA1,2,15 1. The unique identifying driver number assigned to an individual by the department of transportation under s. 343.17 (3) (a) 4.

AB685-ASA1,2,16 2. An individual's social security number.

AB685-ASA1,2,18 3. The identifying number of an individual's depository account, as defined in s. 815.18 (2) (e).

AB685-ASA1,2,20 4. An individual's unique biometric data, including fingerprint, voice, retina or iris image, or other unique physical representation.

AB685-ASA1,2,21 5. An individual's electronic signature, as defined in s. 178.46 (1g) (c).

AB685-ASA1,2,25 6. Any other unique code, number, information, or data pertaining to an individual that can be used, alone or in conjunction with another object or device, to obtain, access, or transfer the individual's money, goods, services, benefits, or any other thing of value.

AB685-ASA1,3,3 (br) "Internet" means the international computer network of both federal and nonfederal interoperable packet switched data networks, including the graphical subnetwork known as the World Wide Web.

AB685-ASA1,3,5 (c) "Internet user" means a person that maintains an electronic mail address with an electronic mail service provider.

AB685-ASA1,3,8 (e) "Send" means to initiate the transmission of an electronic mail message, but does not include any transmission of an electronic mail message by an electronic mail service provider.

AB685-ASA1,3,10 (fm) "Web site" means a location on the Internet with a single uniform resource locator or any other single location on the Internet.

AB685-ASA1,3,12 (2) Prohibitions. (a) Except as provided in par. (b), no person may do any of the following:

AB685-ASA1,3,15 1. Send an electronic mail solicitation that misrepresents the identity, telephone number, return electronic mail address, or street mailing address of the person sending the electronic mail solicitation.

AB685-ASA1,3,18 2. Send, conspire with another person to send, or aid or abet the sending of an electronic mail solicitation that misrepresents or obscures information identifying the transmission path of the electronic mail solicitation.

AB685-ASA1,3,19 3. Send more than one electronic mail solicitation if any of the following apply:

AB685-ASA1,3,22 a. The person obtains 15 or more electronic mail accounts or Internet user accounts by falsely representing the person's identity and uses the accounts to knowingly send the electronic mail solicitations.

AB685-ASA1,3,25 b. The person obtains 2 or more Internet domain names by falsely representing the person's identity and uses the domain names to send the electronic mail solicitations.

AB685-ASA1,4,3 c. The person falsely represents the right to use 5 or more Internet protocol addresses and uses the Internet protocol addresses to send more than one electronic mail solicitation.

AB685-ASA1,4,6 d. Without authorization, the person accesses the protected computer of another and intentionally sends more than one electronic mail solicitation using the protected computer.

AB685-ASA1,4,8 4. Sell, give, or otherwise distribute, or possess with the intent to sell, give, or otherwise distribute, software that is any of the following:

AB685-ASA1,4,11 a. Primarily designed or produced for the purpose of facilitating or enabling the falsification of electronic mail transmission information or other routing information.

AB685-ASA1,4,14 b. Of limited commercially significant purpose other than to facilitate or enable the falsification of electronic mail transmission information or other routing information.

AB685-ASA1,4,17 c. Marketed by that person or someone in concert with that person for use in facilitating or enabling the falsification of electronic mail transmission information or other routing information.

AB685-ASA1,4,21 5. Sell an electronic mail address to another person for the purpose of facilitating or enabling the falsification of commercial electronic mail transmission information unless the seller first obtains the electronic mail address holder's permission to sell that electronic mail address.

AB685-ASA1,4,25 6. Collect electronic mail addresses appearing on the Internet for the purpose of sending, or advertising in, an electronic mail solicitation that contains fraudulent or misleading information or that solicits the sale or lease of fraudulent products or services.

AB685-ASA1,5,4 7. Solicit identifying information from another by using an electronic mail message, Web site, or other Internet communication that represents that the electronic mail message, Web site, or other Internet communication originates from a business, without the authorization of the business.

AB685-ASA1,5,8 (b) Paragraph (a) 1. to 3. does not apply to a person who, through an automatic technical process, transmits, routes, relays, handles, or stores an electronic mail solicitation, if the identity or address of the recipient of the electronic mail solicitation is determined by another.

AB685-ASA1,5,10 (3) Enforcement. (a) The department may investigate violations of this section.

AB685-ASA1,5,15 (b) The department shall maintain an Internet Web site that explains how a person who receives electronic mail solicitation that violates this section may file a complaint with the department. The Internet Web site shall be designed to enable a viewer of the Web site to send a complaint to the department in the form of electronic mail.

AB685-ASA1,5,17 (4) Criminal penalties. (a) Except as provided in pars. (b) to (d), whoever violates this section is guilty of a Class A misdemeanor.

AB685-ASA1,5,19 (b) Whoever violates this section is guilty of a Class I felony if any of the following apply:

AB685-ASA1,5,21 1. The person sends more than 250 electronic mail solicitations in any 24-hour period.

AB685-ASA1,5,22 2. The violation causes a loss of more than $500 in any 12-month period.

AB685-ASA1,5,24 3. The person acts in concert with 3 or more others as a leader or organizer of the conduct that violates this section.

AB685-ASA1,6,3 (c) Whoever violates sub. (2) (a) 3. is guilty of a Class I felony, if the person obtains 20 or more electronic mail accounts or Internet user accounts by falsely representing the person's identity.

AB685-ASA1,6,4 (cm) Whoever violates sub. (2) (a) 7. is guilty of a class H felony.

AB685-ASA1,6,6 (d) Whoever violates this section is guilty of a Class H felony, if any of the following apply:

AB685-ASA1,6,7 1. The person acted in furtherance of a felony.

AB685-ASA1,6,10 2. The person has previously been convicted of violating any law of this state or another state, or a federal law, that regulates the transmission of electronic mail solicitations.

AB685-ASA1,6,13 (e) In addition to the penalties authorized under pars. (a) to (d), a court may order that a person who is guilty of violating this section forfeit to the state any of the following:

AB685-ASA1,6,15 1. Money or other things of value the person obtained as a result of violating this section.

AB685-ASA1,6,18 2. Personal property used in connection with a violation of this section, if the owner of the personal property knew it was used in connection with a violation of this section.

AB685-ASA1,6,21 (5) Civil forfeitures. (a) The department may initiate a civil action against a person who violates this section and recover a civil penalty in the following amounts:

AB685-ASA1,6,23 1. Not more than the greater of $25,000 per day of violation, or $8 per electronic mail solicitation sent in violation of this section.

AB685-ASA1,7,2 2. If the court finds the person sent an electronic mail in violation of this section to a computer that the person knew or should have known was accessible to a minor, the amount under subd. 1. plus an additional forfeiture not to exceed $10,000 per violation.

AB685-ASA1,7,4 (b) An action under this subsection shall be initiated not later than 2 years after the last violation.

AB685-ASA1,7,9 (6) Affirmative defense. (a) It is an affirmative defense to the sending of an electronic mail solicitation in violation of this section if the person who sent the electronic mail solicitation demonstrates, by a preponderance of the evidence, that the electronic mail solicitation was sent in error and the person did all of the following:

AB685-ASA1,7,11 1. Provided to recipients of the electronic mail solicitations a reasonable opportunity to request that the person send no further electronic mail solicitations.

AB685-ASA1,7,14 2. Established and implemented, with due care, reasonable practices and procedures effectively to prevent the sending of electronic mail solicitations from that person in violation of this section.

AB685-ASA1,7,16 3. Trained the person's employees, if any, with regard to the requirements of this section.

AB685-ASA1,7,20 (b) No person may exercise the defense under par. (a) more than once in any 12-month period. A person exercises the defense if the defense is asserted in response to any complaint made to the department about a violation of this section, regardless of whether litigation has been initiated.

AB685-ASA1,7,23 (7) Immunity. An electronic mail service provider is immune from civil liability for any good faith acts or omissions related to the blocking of electronic mail solicitations sent in violation of this section.

AB685-ASA1,8,3 (8) Territorial application. This section applies to any interstate electronic mail solicitation sent or received by a person in this state and any intrastate electronic mail solicitation.

AB685-ASA1, s. 3 Section 3. 165.25 (4) (ar) of the statutes is amended to read:

AB685-ASA1,8,10 165.25 (4) (ar) The department of justice shall furnish all legal services required by the department of agriculture, trade and consumer protection relating to the enforcement of ss. 100.171, 100.173, 100.174, 100.175, 100.177, 100.18, 100.182, 100.20, 100.205, 100.207, 100.209, 100.21, 100.28, 100.37, 100.42, 100.50 and, 100.51, and 100.54 and chs. 126, 136, 344, 704, 707, and 779, together with any other services as are necessarily connected to the legal services.

AB685-ASA1, s. 4 Section 4. 943.201 (2m) of the statutes is created to read:

AB685-ASA1,8,15 943.201 (2m) Notwithstanding the maximum fine specified in s. 939.50 (3) (h), a person who violates sub. (2) may be fined not more than $20,000 if, in committing that violation, the person used identifying information, as defined in s. 100.54 (1) (bg), obtained through a violation of s. 100.54 (2) (a) 7.

AB685-ASA1, s. 5 Section 5. Nonstatutory provisions.

AB685-ASA1,8,18 (1) The assembly chief clerk shall send a copy of this act to the attorney general of each state and to the attorney general of the United States.

AB685-ASA1,8,19 (End)