AB685: Bill Text

LRB-3544/1

CTS:wlj:pg

2005 - 2006 LEGISLATURE

2005 Assembly BILL 685

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 An Act to amend 100.264 (2) (intro.) and 165.25 (4) (ar); and to create 100.54 of the statutes; relating to: regulating certain electronic mail solicitations and practices 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 Section 1. 100.264 (2) (intro.) of the statutes is amended to read:

AB685,2,9 100.264 (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, s. 2 Section 2. 100.54 of the statutes is created to read:

AB685,2,11 100.54 Electronic mail solicitations. (1) Definitions. In this section:

AB685,2,13 (a) "Electronic mail service provider" means any person that is an intermediary in providing Internet users with the ability to send or receive electronic mail.

AB685,3,4 (b) "Electronic mail solicitation" means 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 or leasing or offering to sell or lease property, goods, or services to the recipient.

AB685,3,6 (c) "Internet user" means a person that maintains an electronic mail address with an electronic mail service provider.

AB685,3,9 (d) "Nonprofit organization" means an organization that is described in section 501 (c) (3) of the Internal Revenue Code and that is exempt from federal income tax under section 501 (a) of the Internal Revenue Code.

AB685,3,12 (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.

AB685,3,14 (2) Prohibitions. (a) Except as provided in par. (b), no person may do any of the following:

AB685,3,17 1. Knowingly 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.

AB685,3,20 2. Knowingly 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.

AB685,3,22 3. Knowingly send more than one electronic mail solicitation if any of the following apply:

AB685,3,25 a. The person obtains 15 or more electronic mail accounts or Internet user accounts by falsely representing the person's identity and uses such accounts to knowingly send the electronic mail solicitations.

AB685,4,3 b. The person obtains 2 or more Internet domain names by falsely representing the person's identity and uses such domain names to send the electronic mail solicitations.

AB685,4,6 c. The person falsely represents the right to use 5 or more Internet protocol addresses and uses such Internet protocol addresses to send more than one electronic mail solicitation intentionally.

AB685,4,9 d. Without authorization, the person accesses the protected computer of another and intentionally sends more than one electronic mail solicitation using the protected computer.

AB685,4,11 4. Knowingly sell, give, or otherwise distribute, or possess with the intent to sell, give, or otherwise distribute, software that is any of the following:

AB685,4,14 a. Primarily designed or produced for the purpose of facilitating or enabling the falsification of electronic mail transmission information or other routing information.

AB685,4,17 b. Of limited commercially significant purpose other than to facilitate or enable the falsification of electronic mail transmission information or other routing information.

AB685,4,20 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.

AB685,4,24 5. Knowingly 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.

AB685,5,4 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.

AB685,5,8 (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.

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

AB685,5,15 (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.

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

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

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

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

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

AB685,6,3 (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.

AB685,6,5 (d) Whoever violates this section is guilty of a Class H felony, if any of the following apply:

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

AB685,6,9 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.