LRB-3544/1
CTS:wlj:pg
2005 - 2006 LEGISLATURE
September 22, 2005 - Introduced by Representatives Davis, Freese, Friske,
Hundertmark, Rhoades, Gronemus, Loeffelholz, Ott, Gunderson, Albers,
Kreibich, Townsend, Pettis, Molepske and Shilling, cosponsored by
Senators Kanavas, Stepp, Leibham, Darling, Lassa, Olsen, Cowles and
Roessler. Referred to Committee on Criminal Justice and Homeland
Security.
AB685,1,3
1An Act to amend 100.264 (2) (intro.) and 165.25 (4) (ar); and
to create 100.54
2of the statutes;
relating to: regulating certain electronic mail solicitations and
3practices related to electronic mail solicitations and providing penalties.
Analysis by the Legislative Reference Bureau
This bill imposes certain requirements and restrictions upon persons who send
electronic mail solicitations. The bill defines an electronic mail solicitation as an
electronic mail message that is sent by a person other than a nonprofit organization
or a state or federal agency without the consent of the recipient for the purpose of
selling, leasing, or offering to sell or lease property, goods, or services to the recipient.
The bill prohibits all of the following: 1) knowingly sending an electronic mail
solicitation that misrepresents the sender's identity, telephone number, return
electronic mail address, street mailing address, or any information identifying the
solicitation's transmission path; 2) knowingly sending electronic mail solicitations
using an address, Internet user account, domain name, or Internet protocol address
that the sender obtained by misrepresenting his or her identity; 3) knowingly selling
an electronic mail address, without the address holder's permission, for the purpose
of falsifying transmission information; 4) knowingly selling software that is designed
to falsify electronic mail transmission information; and 5) collecting electronic mail
addresses appearing on the Internet for the purpose of sending an electronic mail
solicitation that contains certain fraudulent information.
The bill creates an affirmative defense to the sending of an electronic mail
solicitation in violation of the provisions of this bill. The sender is entitled to that
defense if the sender demonstrates, by a preponderance of the evidence, that the
electronic mail solicitation was sent in error and that the sender followed certain
procedures, including providing recipients a reasonable opportunity to request that
the sender send no further electronic mail solicitations.
The bill requires the Department of Agriculture, Trade and Consumer
Protection (DATCP) to investigate violations of the provisions of this bill and to
maintain an Internet Web site that explains how a person may file a complaint with
DATCP concerning such violations. Persons who violate the provisions of the bill are
subject to civil and criminal penalties.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a
report concerning the proposed penalty and the costs or savings that are likely to
result if the bill is enacted.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB685, s. 1
1Section
1. 100.264 (2) (intro.) of the statutes is amended to read:
AB685,2,92
100.264
(2) Supplemental forfeiture. (intro.) If a fine or a forfeiture is
3imposed on a person for a violation under s. 100.16, 100.17, 100.18, 100.182, 100.183,
4100.20, 100.205, 100.207, 100.21, 100.30 (3), 100.35, 100.44
or, 100.46
, or 100.54 or
5a rule promulgated under one of those sections, the person shall be subject to a
6supplemental forfeiture not to exceed $10,000 for that violation if the conduct by the
7defendant, for which the violation was imposed, was perpetrated against an elderly
8person or disabled person and if the court finds that any of the following factors is
9present:
AB685, s. 2
10Section
2. 100.54 of the statutes is created to read:
AB685,2,11
11100.54 Electronic mail solicitations.
(1) Definitions. In this section:
AB685,2,1312
(a) "Electronic mail service provider" means any person that is an intermediary
13in providing Internet users with the ability to send or receive electronic mail.
AB685,3,4
1(b) "Electronic mail solicitation" means an electronic mail message that is sent
2by a person other than a nonprofit organization or a state or federal agency without
3the consent of the recipient for the purpose of selling or leasing or offering to sell or
4lease property, goods, or services to the recipient.
AB685,3,65
(c) "Internet user" means a person that maintains an electronic mail address
6with an electronic mail service provider.
AB685,3,97
(d) "Nonprofit organization" means an organization that is described in section
8501 (c) (3) of the Internal Revenue Code and that is exempt from federal income tax
9under section
501 (a) of the Internal Revenue Code.
AB685,3,1210
(e) "Send" means to initiate the transmission of an electronic mail message, but
11does not include any transmission of an electronic mail message by an electronic mail
12service provider.
AB685,3,14
13(2) Prohibitions. (a) Except as provided in par. (b), no person may do any of
14the following:
AB685,3,1715
1. Knowingly send an electronic mail solicitation that misrepresents the
16identity, telephone number, return electronic mail address, or street mailing address
17of the person sending the electronic mail solicitation.
AB685,3,2018
2. Knowingly send, conspire with another person to send, or aid or abet the
19sending of an electronic mail solicitation that misrepresents or obscures information
20identifying the transmission path of the electronic mail solicitation.
AB685,3,2221
3. Knowingly send more than one electronic mail solicitation if any of the
22following apply:
AB685,3,2523
a. The person obtains 15 or more electronic mail accounts or Internet user
24accounts by falsely representing the person's identity and uses such accounts to
25knowingly send the electronic mail solicitations.
AB685,4,3
1b. The person obtains 2 or more Internet domain names by falsely representing
2the person's identity and uses such domain names to send the electronic mail
3solicitations.
AB685,4,64
c. The person falsely represents the right to use 5 or more Internet protocol
5addresses and uses such Internet protocol addresses to send more than one electronic
6mail solicitation intentionally.
AB685,4,97
d. Without authorization, the person accesses the protected computer of
8another and intentionally sends more than one electronic mail solicitation using the
9protected computer.
AB685,4,1110
4. Knowingly sell, give, or otherwise distribute, or possess with the intent to
11sell, give, or otherwise distribute, software that is any of the following:
AB685,4,1412
a. Primarily designed or produced for the purpose of facilitating or enabling the
13falsification of electronic mail transmission information or other routing
14information.
AB685,4,1715
b. Of limited commercially significant purpose other than to facilitate or enable
16the falsification of electronic mail transmission information or other routing
17information.
AB685,4,2018
c. Marketed by that person or someone in concert with that person for use in
19facilitating or enabling the falsification of electronic mail transmission information
20or other routing information.
AB685,4,2421
5. Knowingly sell an electronic mail address to another person for the purpose
22of facilitating or enabling the falsification of commercial electronic mail
23transmission information unless the seller first obtains the electronic mail address
24holder's permission to sell that electronic mail address.
AB685,5,4
16. Collect electronic mail addresses appearing on the Internet for the purpose
2of sending, or advertising in, an electronic mail solicitation that contains fraudulent
3or misleading information or that solicits the sale or lease of fraudulent products or
4services.
AB685,5,85
(b) Paragraph (a) 1. to 3. does not apply to a person who, through an automatic
6technical process, transmits, routes, relays, handles, or stores an electronic mail
7solicitation, if the identity or address of the recipient of the electronic mail
8solicitation is determined by another.
AB685,5,10
9(3) Enforcement. (a) The department shall investigate violations of this
10section.
AB685,5,1511
(b) The department shall maintain an Internet Web site that explains how a
12person who receives electronic mail solicitation that violates this section may file a
13complaint with the department. The Internet Web site shall be designed to enable
14a viewer of the Web site to send a complaint to the department in the form of
15electronic mail.
AB685,5,17
16(4) Criminal penalties. (a) Except as provided in pars. (b) to (d), whoever
17violates this section is guilty of a Class A misdemeanor.
AB685,5,1918
(b) Whoever violates this section is guilty of a Class I felony if any of the
19following apply:
AB685,5,2120
1. The person sends more than 250 electronic mail solicitations in any 24-hour
21period.
AB685,5,2222
2. The violation causes a loss of more than $500 in any 12-month period.
AB685,5,2423
3. The person acts in concert with 3 or more others as a leader or organizer of
24the conduct that violates this section.
AB685,6,3
1(c) Whoever violates sub. (2) (a) 3. is guilty of a Class I felony, if the person
2obtains 20 or more electronic mail accounts or Internet user accounts by falsely
3representing the person's identity.
AB685,6,54
(d) Whoever violates this section is guilty of a Class H felony, if any of the
5following apply:
AB685,6,66
1. The person acted in furtherance of a felony.
AB685,6,97
2. The person has previously been convicted of violating any law of this state
8or another state, or a federal law, that regulates the transmission of electronic mail
9solicitations.
AB685,6,1210
(e) In addition to the penalties authorized under pars. (a) to (d), a court may
11order that a person who is guilty of violating this section forfeit to the state any of
12the following:
AB685,6,1413
1. Money or other things of value the person obtained as a result of violating
14this section.
AB685,6,1715
2. Personal property used in connection with a violation of this section, if the
16owner of the personal property knew it was used in connection with a violation of this
17section.
AB685,6,22
18(5) Civil forfeitures. The department may initiate a civil action against a
19person who violates this section and recover a civil penalty not to exceed the greater
20of $25,000 per day of violation, or $8 per electronic mail solicitation sent in violation
21of this section. An action under this subsection shall be initiated not later than 2
22years after the last violation.
AB685,7,2
23(6) Affirmative defense. (a) It is an affirmative defense to the sending of an
24electronic mail solicitation in violation of this section if the person who sent the
25electronic mail solicitation demonstrates, by a preponderance of the evidence, that
1the electronic mail solicitation was sent in error and the person did all of the
2following:
AB685,7,43
1. Provided to recipients of the electronic mail solicitations a reasonable
4opportunity to request that the person send no further electronic mail solicitations.
AB685,7,75
2. Established and implemented, with due care, reasonable practices and
6procedures effectively to prevent the sending of electronic mail solicitations from
7that person in violation of this section.
AB685,7,98
3. Trained the person's employees, if any, with regard to the requirements of
9this section.
AB685,7,1010
4. Maintained records demonstrating compliance with this section.
AB685,7,1411
(b) No person may exercise the defense under par. (a) more than once in any
1212-month period. A person exercises the defense if the defense is asserted in
13response to any complaint made to the department about a violation of this section,
14regardless of whether litigation has been initiated.