093_HB3017

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 1        AN ACT concerning electronic mail.

 2        Be it enacted by the People of  the  State  of  Illinois,
 3    represented in the General Assembly:

 4        Section  1.  Short  title.  This  Act may be cited as the
 5    Unsolicited Commercial Electronic Mail Act.

 6        Section 5.  Definitions. As used in this Act:
 7        (a)  "Illinois electronic mail address" means any of  the
 8    following:
 9             (1)  An  electronic  mail  address  furnished  by an
10        electronic mail service provider  that  sends  bills  for
11        furnishing  and  maintaining that electronic mail address
12        to a mailing address in this State.
13             (2)  An electronic mail address ordinarily  accessed
14        from a computer located in this State.
15             (3)  An  electronic  mail  address  furnished  to  a
16        resident of this state.
17        (b)  "Commercial electronic mail advertisement" means any
18    electronic   mail   message  initiated  for  the  purpose  of
19    advertising or promoting the lease, sale, rental, gift offer,
20    or other disposition of any  property,  goods,  services,  or
21    extension of credit.
22        (c)  "Direct  consent"  means  a  recipient's unambiguous
23    expression of permission to receive a  commercial  electronic
24    mail   advertisement  of  the  type  transmitted,  where  the
25    recipient has clear and conspicuous notice of  the  scope  of
26    the  permission, including the types of commercial electronic
27    mail advertisements and  the  senders  or  types  of  senders
28    included, at the time the recipient grants that permission.
29        (d)  "Domain  name"  means  any  alphanumeric designation
30    that is registered  with  or  assigned  by  any  domain  name
31    registrar as part of an electronic address on the Internet.
 
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 1        (e)  "Electronic  mail"  means an electronic message that
 2    is transmitted between 2 or more telecommunications  devices,
 3    computers,   or   electronic  devices  capable  of  receiving
 4    electronic messages, whether or not the message is  converted
 5    to   hard  copy  format  after  receipt  or  is  viewed  upon
 6    transmission or stored for later retrieval. "Electronic mail"
 7    includes electronic messages that are transmitted  through  a
 8    local, regional, or global computer network.
 9        (f)  "Electronic   mail  address"  means  a  destination,
10    commonly expressed  as  a  string  of  characters,  to  which
11    electronic mail can be sent or delivered. An "electronic mail
12    address"  may  include a user name or mailbox and a reference
13    to an Internet domain.
14        (g)  "Electronic mail service provider" means any person,
15    including  an  Internet  service   provider,   that   is   an
16    intermediary  in sending or receiving electronic mail or that
17    provides to end users of  the  electronic  mail  service  the
18    ability to send or receive electronic mail.
19        (h)  "Functioning  return  electronic mail address" means
20    an  electronic  mail  address  displayed  in   a   commercial
21    electronic  mail  advertisement  that  has  the  capacity  to
22    receive  the  number of reply messages that the sender of the
23    commercial electronic mail  advertisement  should  reasonably
24    expect  to be transmitted by the recipients of the commercial
25    electronic mail advertisement for no less than 30 days  after
26    the sending of the commercial electronic mail advertisement.
27        (i)  "Header  information" means the source, destination,
28    and routing information  attached  to  the  beginning  of  an
29    electronic  mail  message,  including  the originating domain
30    name and originating electronic mail address.
31        (j)  "Initiate   the   transmission   of   a   commercial
32    electronic mail advertisement" means to transmit or cause  to
33    be  transmitted a commercial electronic mail advertisement or
34    assist in the transmission of a  commercial  electronic  mail
 
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 1    advertisement  by  providing  or  selecting  electronic  mail
 2    addresses  to  which  the advertisement may be sent, but does
 3    not include the transmission of the advertisement through the
 4    network or system  of  a  telecommunications  utility  or  an
 5    electronic mail service provider.
 6        (k)  "Internet"  means the global information system that
 7    is logically linked together by  a  globally  unique  address
 8    space  based on the Internet Protocol (IP), or its subsequent
 9    extensions, and that is able to support communications  using
10    the  Transmission Control Protocol/Internet Protocol (TCP/IP)
11    suite, or its subsequent extensions, or  other  IP-compatible
12    protocols,  and  that  provides,  uses,  or makes accessible,
13    either publicly or privately, high level services layered  on
14    the communications and related infrastructure.
15        (l)  "Preexisting  or  current business relationship," as
16    used  in  connection  with  the  sending  of   a   commercial
17    electronic mail advertisement, means either of the following:
18             (1)  The recipient has purchased or leased property,
19        goods,  or  services  from  the  sender  and  both of the
20        following conditions are met:
21                  (A)  The subject of the  commercial  electronic
22             mail advertisement concerns that purchase or lease.
23                  (B)  The     commercial     electronic     mail
24             advertisement  is  sent  within  12  months  of  the
25             purchase  or  lease  or  within  any  longer express
26             warranty period.
27             (2)  The recipient has an ongoing contract with  the
28        sender  and  the commercial electronic mail advertisement
29        directly concerns the ongoing contract.
30        (m)  "Recipient" means  the  addressee  of  a  commercial
31    electronic   mail   advertisement.   If  an  addressee  of  a
32    commercial electronic mail  advertisement  has  one  or  more
33    electronic  mail  addresses  to which a commercial electronic
34    mail advertisement is sent, the addressee shall be deemed  to
 
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 1    be  a  separate  recipient  for  each  address  to  which the
 2    advertisement is sent.
 3        (n)  "Sender" means a person who initiates  a  commercial
 4    electronic mail advertisement.
 5        (o)  "Unsolicited      commercial     electronic     mail
 6    advertisement"   means   a   commercial    electronic    mail
 7    advertisement  sent  to  a  recipient  who  meets both of the
 8    following criteria:
 9             (1)  Has not provided direct consent to receive  the
10        commercial electronic mail advertisement.
11             (2)  Does not have a preexisting or current business
12        relationship  with the sender or offeror of the property,
13        goods, or services.

14        Section 10.  Prohibitions.
15        (a)  Notwithstanding  any  other  provision  of  law,  no
16    person may do either of the following:
17             (1)  Initiate an unsolicited  commercial  electronic
18        mail advertisement from Illinois.
19             (2)  Initiate  an  unsolicited commercial electronic
20        mail  advertisement  to  an  Illinois   electronic   mail
21        address.
22        (b)  The provisions of this Section are severable. If any
23    provision of this Section or its application is held invalid,
24    both of the following shall occur:
25             (1)  That  invalidity  shall  not  affect  any other
26        provision or application that can be given effect without
27        the invalid provision or application.
28             (2)  Sections 15 and 20 shall become operative.

29        Section  15.  Unsolicited  commercial  electronic   mail;
30    requirements.
31        (a)  Any sender of unsolicited commercial electronic mail
32    advertisements   either  from  Illinois  or  to  an  Illinois
 
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 1    electronic mail address shall do all of the following:
 2             (1)  Maintain a functioning return  electronic  mail
 3        address  to which a recipient may send a reply indicating
 4        the recipient's desire not to receive further  commercial
 5        electronic  mail  advertisements  from  the sender at the
 6        electronic  mail  address  at  which  the   message   was
 7        received.
 8             (2)  Clearly   and  conspicuously  disclose  in  the
 9        commercial  electronic  mail  advertisement  all  of  the
10        following:
11                  (A)  The  recipient's  right  to   decline   to
12             receive    further    commercial   electronic   mail
13             advertisements at the  electronic  mail  address  at
14             which the message was received.
15                  (B)  The  recipient's  ability  to  decline  to
16             receive    further    commercial   electronic   mail
17             advertisements by sending a message to the  sender's
18             functioning return electronic mail address.
19                  (C)  The sender's functioning return electronic
20             mail address.
21        (b)  It  is  unlawful  for  any  person  to  initiate the
22    transmission of an  unsolicited  commercial  electronic  mail
23    advertisement   either   from  Illinois  or  to  an  Illinois
24    electronic  mail  address  under   any   of   the   following
25    circumstances:
26             (1)  The  commercial  electronic  mail advertisement
27        contains or is accompanied by a third party's domain name
28        without permission of the third party.
29             (2)  The commercial  electronic  mail  advertisement
30        contains  or is accompanied by falsified, misrepresented,
31        obscured, or forged header information.
32             (3)  The commercial  electronic  mail  advertisement
33        has  a  subject line that has the capacity or tendency to
34        mislead  the   public   about   the   contents   of   the
 
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 1        advertisement.
 2             (4)  The  sender  is in violation of subdivision (a)
 3        or the commercial electronic mail advertisement does  not
 4        contain the notice required by subdivision (a).
 5             (5)  The   potential  recipient  of  the  commercial
 6        electronic mail advertisement or a recipient  of  a  past
 7        commercial electronic mail advertisement has informed the
 8        sender,  by use of the functioning return electronic mail
 9        address  or  by  other  electronic   or   written   means
10        communicated  to  the sender, that the recipient does not
11        wish to receive commercial electronic mail advertisements
12        at that electronic mail address.
13             (6)  An  employer  has  informed  the   sender,   as
14        provided   in   subdivision  (c),  not  to  send  further
15        commercial electronic mail advertisements  to  designated
16        electronic mail addresses.
17        (c)  An  employer who provides or has control over one or
18    more electronic mail addresses  used  by  its  employees  may
19    notify  the  sender  of  an unsolicited commercial electronic
20    mail  advertisement,  by  use  of  the   functioning   return
21    electronic  mail  address  or  by other electronic or written
22    means communicated to the sender, that no further  commercial
23    electronic  mail  advertisements should be transmitted to any
24    of the employer-provided and  employer-controlled  electronic
25    mail addresses.
26        (d)  In   addition   to  the  prohibitions  described  in
27    subdivision (b), it is unlawful for any  person  to  initiate
28    the transmission of an unsolicited commercial electronic mail
29    advertisement from Illinois or to an Illinois electronic mail
30    address unless all of the following conditions are satisfied:
31             (1)  The  subject  line of the commercial electronic
32        mail  advertisement  includes  "ADV:"  as  the  first   4
33        characters.
34             (2)  If the commercial electronic mail advertisement
 
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 1        is  intended  for the purpose of the lease, sale, rental,
 2        gift offer, or other disposition of any property,  goods,
 3        services, or extension of credit that may only be viewed,
 4        purchased,  rented,  leased,  or held in possession by an
 5        individual 18 years of age or older, the subject line  of
 6        the   commercial   electronic  mail  advertisement  shall
 7        include "ADV:ADLT" as the first eight characters.
 8        (e)  This Section  shall  remain  inoperative  until  any
 9    provision  of  Section 10 or its application is held invalid,
10    at which time this Section shall become operative.

11        Section  20.  Unsolicited  commercial  electronic   mail;
12    transmission.
13        (a)  It  is  unlawful for any person to sell or otherwise
14    provide a list of electronic mail addresses to be used to  do
15    either of the following:
16             (1)  Initiate   the   transmission   of  unsolicited
17        commercial electronic mail advertisements from Illinois.
18             (2)  Initiate  the   transmission   of   unsolicited
19        electronic  mail advertisements to an Illinois electronic
20        mail address.
21        (b)  This Section  shall  remain  inoperative  until  any
22    provision  of  Section 10 or its application is held invalid,
23    at which time this Section shall become operative.

24        Section 25.  Remedies.
25        (a)  In addition to any other remedies provided  by  this
26    Act  or  by  other  provisions  of  law,  a  recipient  of  a
27    commercial   electronic  mail  advertisement  transmitted  in
28    violation of Section 10, 15, or 20 may  bring  an  action  to
29    recover  either  actual  damages  or $500 for each individual
30    violation,  whichever  is  greater,  and  may  also   recover
31    reasonable costs and attorney's fees.
32        (b)  If the court finds that the violation was willful or
 
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 1    knowing,  the  court  may,  in  its  discretion, increase the
 2    amount of the award to an amount equal to  not  more  than  3
 3    times the amount available under subsection (a).

 4        Section 30.  Criminal penalty. Violation of this Act is a
 5    Class C misdemeanor.

 6        Section   35.  Consumer   Fraud  and  Deceptive  Business
 7    Practices Act. In addition to any other  penalties  specified
 8    in  this  Act,  violation of this Act constitutes an unlawful
 9    practice under the  Consumer  Fraud  and  Deceptive  Business
10    Practices Act.

11        Section 40.  Other remedies. The remedies provided for in
12    this  Act  are  in addition to, and not in lieu of, any other
13    remedies provided for by law.

14        Section 85.  The Consumer Fraud  and  Deceptive  Business
15    Practices Act is amended by changing Section 2Z as follows:

16        (815 ILCS 505/2Z) (from Ch. 121 1/2, par. 262Z)
17        Sec.  2Z.   Violations  of  other  Acts.   Any person who
18    knowingly violates the Automotive Repair Act, the Home Repair
19    and Remodeling  Act,  the  Dance  Studio  Act,  the  Physical
20    Fitness   Services   Act,  the  Hearing  Instrument  Consumer
21    Protection  Act,  the  Illinois  Union  Label  Act,  the  Job
22    Referral and Job Listing Services  Consumer  Protection  Act,
23    the  Travel  Promotion  Consumer  Protection  Act, the Credit
24    Services Organizations Act, the Automatic  Telephone  Dialers
25    Act,  the  Pay-Per-Call Services Consumer Protection Act, the
26    Telephone Solicitations Act, the Illinois Funeral  or  Burial
27    Funds  Act,  the Cemetery Care Act, the Safe and Hygienic Bed
28    Act, the Pre-Need Cemetery Sales Act, subsection (a)  or  (b)
29    of  Section  3-10 of the Cigarette Tax Act, subsection (a) or
 
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 1    (b) of Section  3-10  of  the  Cigarette  Use  Tax  Act,  the
 2    Unsolicited  Commercial Electronic Mail Act, or paragraph (6)
 3    of subsection (k) of Section 6-305 of  the  Illinois  Vehicle
 4    Code  commits an unlawful practice within the meaning of this
 5    Act.
 6    (Source: P.A. 91-164,  eff.  7-16-99;  91-230,  eff.  1-1-00;
 7    91-233,  eff.  1-1-00;  91-810,  eff.  6-13-00;  92-426, eff.
 8    1-1-02.)

 9        (815 ILCS 511/Act rep.)
10        Section 90.  Repeal. The Electronic Mail Act is repealed.

11        Section 95.  Prior cause of action. Any cause  of  action
12    that  is  in  existence before the effective date of this Act
13    shall not be affected by  this  Act,  but  shall  instead  be
14    governed  by the law that was in effect at the time the cause
15    of action arose.