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91_HB2616enr HB2616 Enrolled LRB9104846BBpr 1 AN ACT in relation to 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 Electronic Mail Act. 6 Section 5. Definitions. As used in this Act: 7 "Electronic mail advertisement" means any electronic mail 8 message, the principal purpose of which is to promote, 9 directly or indirectly, the sale or other distribution of 10 goods or services to the recipient. 11 "Unsolicited electronic mail advertisement" means any 12 electronic mail advertisement that (i) is addressed to a 13 recipient with whom the initiator does not have a prior or 14 existing business or personal relationship and (ii) is not 15 sent at the request of or with the express consent of the 16 recipient. 17 "Electronic mail service provider" means any business or 18 organization qualified to do business in Illinois that 19 provides registered users the ability to send or receive 20 electronic mail through equipment located in this State and 21 that is an intermediary in sending or receiving electronic 22 mail. 23 "Initiation" of an electronic mail message refers to the 24 action by the initial sender of the electronic mail message. 25 "Initiation" does not refer to the actions of any intervening 26 electronic mail service provider that may handle or 27 retransmit the electronic mail message. 28 "Registered user" means any individual or entity that 29 maintains an electronic mail address with an electronic mail 30 service provider. 31 "Electronic mail address" means a destination, commonly HB2616 Enrolled -2- LRB9104846BBpr 1 expressed as a string of characters, to which electronic mail 2 may be sent or delivered. 3 "Internet domain name" refers to a globally unique, 4 hierarchical reference to an Internet host or service, 5 assigned through centralized Internet naming authorities, 6 comprising a series of character strings separated by 7 periods, with the right-most string specifying the top of the 8 hierarchy. 9 Section 10. Unsolicited or misleading electronic mail; 10 prohibition. 11 (a) No individual or entity may initiate or cause to be 12 initiated an unsolicited electronic mail advertisement if the 13 electronic mail advertisement (i) uses a third party's 14 Internet domain name without permission of the third party, 15 or otherwise misrepresents any information in identifying the 16 point of origin or the transmission path of an electronic 17 mail advertisement or (ii) contains false or misleading 18 information in the subject line. 19 (b) This Section applies when the unsolicited electronic 20 mail advertisement is delivered to an Illinois resident via 21 an electronic mail service provider's service or equipment 22 located in this State. 23 (c) Any person, other than an electronic mail service 24 provider, who suffers actual damages as a result of a 25 violation of this Section committed by any individual or 26 entity may bring an action against such individual or entity. 27 The injured person may recover attorney's fees and costs, and 28 may elect, in lieu of recovery of actual damages, to recover 29 the lesser of $10 for each and every unsolicited electronic 30 mail advertisement transmitted in violation of this Section, 31 or $25,000 per day. The injured person shall not have a 32 cause of action against the electronic mail service provider 33 that merely transmits the unsolicited electronic mail HB2616 Enrolled -3- LRB9104846BBpr 1 advertisement over its computer network. 2 (d) Any electronic mail service provider who suffers 3 actual damages as a result of a violation of this Section 4 committed by any individual or entity may bring an action 5 against such individual or entity. The injured person may 6 recover attorney's fees and costs, and may elect, in lieu of 7 recovery of actual damages, to recover the lesser of $10 for 8 each and every unsolicited electronic mail advertisement 9 transmitted in violation of this Section, or $25,000 per day. 10 (e) The provisions of this Section shall not be 11 construed to limit any person's right to pursue any 12 additional civil remedy otherwise allowed by law. 13 (f) An electronic mail service provider may, upon its 14 own initiative, block the receipt or transmission through its 15 service of any unsolicited electronic mail advertisement that 16 it reasonably believes is, or will be, sent in violation of 17 this Section. 18 (g) No electronic mail service provider may be held 19 liable for any action voluntarily taken in good faith to 20 block the receipt or transmission through its service of any 21 unsolicited electronic mail advertisement which it reasonably 22 believes is, or will be, sent in violation of this Section. 23 Section 15. Consumer Fraud and Deceptive Business 24 Practices Act. In addition to any other penalties specified 25 in this Act, violation of this Act constitutes an unlawful 26 practice under the Consumer Fraud and Deceptive Business 27 Practices Act. 28 Section 900. The Criminal Code of 1961 is amended by 29 changing Sections 16D-2 and 16D-3 as follows: 30 (720 ILCS 5/16D-2) (from Ch. 38, par. 16D-2) 31 Sec. 16D-2. Definitions. As used in this Article, HB2616 Enrolled -4- LRB9104846BBpr 1 unless the context otherwise indicates: 2 (a) "Computer" means a device that accepts, processes, 3 stores, retrieves or outputs data, and includes but is not 4 limited to auxiliary storage and telecommunications devices 5 connected to computers. 6 (a-5) "Computer network" means a set of related, remotely 7 connected devices and any communications facilities including 8 more than one computer with the capability to transmit data 9 among them through the communications facilities. 10 (b) "Computer program" or "program" means a series of 11 coded instructions or statements in a form acceptable to a 12 computer which causes the computer to process data and supply 13 the results of the data processing. 14 (b-5) "Computer services" means computer time or 15 services, including data processing services, Internet 16 services, electronic mail services, electronic message 17 services, or information or data stored in connection 18 therewith. 19 (c) "Data" means a representation of information, 20 knowledge, facts, concepts or instructions, including program 21 documentation, which is prepared in a formalized manner and 22 is stored or processed in or transmitted by a computer. Data 23 shall be considered property and may be in any form including 24 but not limited to printouts, magnetic or optical storage 25 media, punch cards or data stored internally in the memory of 26 the computer. 27 (c-5) "Electronic mail service provider" means any person 28 who (1) is an intermediary in sending or receiving electronic 29 mail and (2) provides to end-users of electronic mail 30 services the ability to send or receive electronic mail. 31 (d) In addition to its meaning as defined in Section 32 15-1 of this Code, "property" means: (1) electronic impulses; 33 (2) electronically produced data; (3) confidential, 34 copyrighted or proprietary information; (4) private HB2616 Enrolled -5- LRB9104846BBpr 1 identification codes or numbers which permit access to a 2 computer by authorized computer users or generate billings to 3 consumers for purchase of goods and services, including but 4 not limited to credit card transactions and 5 telecommunications services or permit electronic fund 6 transfers; (5) software or programs in either machine or 7 human readable form; or (6) any other tangible or intangible 8 item relating to a computer or any part thereof. 9 (e) "Access" means to use, instruct, communicate with, 10 store data in, retrieve or intercept data from, or otherwise 11 utilize any services of a computer. 12 (f) "Services" includes but is not limited to computer 13 time, data manipulation or storage functions. 14 (g) "Vital services or operations" means those services 15 or operations required to provide, operate, maintain, and 16 repair network cabling, transmission, distribution, or 17 computer facilities necessary to ensure or protect the public 18 health, safety, or welfare. Public health, safety, or 19 welfare include, but are not limited to, services provided by 20 medical personnel or institutions, fire departments, 21 emergency services agencies, national defense contractors, 22 armed forces or militia personnel, private and public utility 23 companies, or law enforcement agencies. 24 (Source: P.A. 85-926.) 25 (720 ILCS 5/16D-3) (from Ch. 38, par. 16D-3) 26 Sec. 16D-3. Computer Tampering. 27 (a) A person commits the offense of computer tampering 28 when he knowingly and without the authorization of a 29 computer's owner, as defined in Section 15-2 of this Code, or 30 in excess of the authority granted to him: 31 (1) Accesses or causes to be accessed a computer or 32 any part thereof, or a program or data; 33 (2) Accesses or causes to be accessed a computer or HB2616 Enrolled -6- LRB9104846BBpr 1 any part thereof, or a program or data, and obtains data 2 or services; 3 (3) Accesses or causes to be accessed a computer or 4 any part thereof, or a program or data, and damages or 5 destroys the computer or alters, deletes or removes a 6 computer program or data; 7 (4) Inserts or attempts to insert a "program" into 8 a computer or computer program knowing or having reason 9 to believe that such "program" contains information or 10 commands that will or may damage or destroy that 11 computer, or any other computer subsequently accessing or 12 being accessed by that computer, or that will or may 13 alter, delete or remove a computer program or data from 14 that computer, or any other computer program or data in a 15 computer subsequently accessing or being accessed by that 16 computer, or that will or may cause loss to the users of 17 that computer or the users of a computer which accesses 18 or which is accessed by such "program";.19 (5) Falsifies or forges electronic mail 20 transmission information or other routing information in 21 any manner in connection with the transmission of 22 unsolicited bulk electronic mail through or into the 23 computer network of an electronic mail service provider 24 or its subscribers; 25 (a-5) It shall be unlawful for any person knowingly to 26 sell, give, or otherwise distribute or possess with the 27 intent to sell, give, or distribute software which (1) is 28 primarily designed or produced for the purpose of 29 facilitating or enabling the falsification of electronic mail 30 transmission information or other routing information; (2) 31 has only a limited commercially significant purpose or use 32 other than to facilitate or enable the falsification of 33 electronic mail transmission information or other routing 34 information; or (3) is marketed by that person or another HB2616 Enrolled -7- LRB9104846BBpr 1 acting in concert with that person with that person's 2 knowledge for use in facilitating or enabling the 3 falsification of electronic mail transmission information or 4 other routing information. 5 (b) Sentence. 6 (1) A person who commits the offense of computer 7 tampering as set forth in subsection (a)(1), (a)(5), or 8 (a-5) of this Section shall be guilty of a Class B 9 misdemeanor. 10 (2) A person who commits the offense of computer 11 tampering as set forth in subsection (a)(2) of this 12 Section shall be guilty of a Class A misdemeanor and a 13 Class 4 felony for the second or subsequent offense. 14 (3) A person who commits the offense of computer 15 tampering as set forth in subsection (a)(3) or subsection 16 (a)(4) of this Section shall be guilty of a Class 4 17 felony and a Class 3 felony for the second or subsequent 18 offense. 19 (4) If the injury arises from the transmission of 20 unsolicited bulk electronic mail, the injured person, 21 other than an electronic mail service provider, may also 22 recover attorney's fees and costs, and may elect, in lieu 23 of actual damages, to recover the lesser of $10 for each 24 and every unsolicited bulk electronic mail message 25 transmitted in violation of this Section, or $25,000 per 26 day. The injured person shall not have a cause of action 27 against the electronic mail service provider that merely 28 transmits the unsolicited bulk electronic mail over its 29 computer network. 30 (5) If the injury arises from the transmission of 31 unsolicited bulk electronic mail, an injured electronic 32 mail service provider may also recover attorney's fees 33 and costs, and may elect, in lieu of actual damages, to 34 recover the greater of $10 for each and every unsolicited HB2616 Enrolled -8- LRB9104846BBpr 1 electronic mail advertisement transmitted in violation of 2 this Section, or $25,000 per day. 3 (6) The provisions of this Section shall not be 4 construed to limit any person's right to pursue any 5 additional civil remedy otherwise allowed by law. 6 (c) Whoever suffers loss by reason of a violation of 7 subsection (a)(4) of this Section may, in a civil action 8 against the violator, obtain appropriate relief. In a civil 9 action under this Section, the court may award to the 10 prevailing party reasonable attorney's fees and other 11 litigation expenses. 12 (Source: P.A. 86-762.) 13 Section 905. The Consumer Fraud and Deceptive Business 14 Practices Act is amended by changing Section 2Z as follows: 15 (815 ILCS 505/2Z) (from Ch. 121 1/2, par. 262Z) 16 Sec. 2Z. Violations of other Acts. Any person who 17 knowingly violates the Automotive Repair Act, the Dance 18 Studio Act, the Physical Fitness Services Act, the Hearing 19 Instrument Consumer Protection Act, the Illinois Union Label 20 Act, the Job Referral and Job Listing Services Consumer 21 Protection Act, the Travel Promotion Consumer Protection Act, 22 the Credit Services Organizations Act, the Automatic 23 Telephone Dialers Act, the Pay-Per-Call Services Consumer 24 Protection Act, the Telephone Solicitations Act, the Illinois 25 Funeral or Burial Funds Act, the Cemetery Care Act,orthe 26 Pre-Need Cemetery Sales Act, or the Electronic Mail Act 27 commits an unlawful practice within the meaning of this Act. 28 (Source: P.A. 89-72, eff. 12-31-95; 89-615, eff. 8-9-96; 29 90-426, eff. 1-1-98.)