New Jersey-2010-S1183-Introduced

An Act concerning the sending of certain commercial electronic mail messages and supplementing Title 2A and chapter 20 of Title 2C of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. This act shall be known and may be cited as the "New Jersey Can Spam Act."

2. The Legislature finds and declares that:

a. Unsolicited commercial electronic mail messages, also referred to as "spam," provide a means to reach large numbers of recipients at very little cost to the sender;

b. Recent surveys have reported that almost two-thirds of the billions of pieces of "spam" sent each week contain falsified e-mail headers or subject line information;

c. The transmission of billions of pieces of "spam" by high-volume commercial senders, also referred to as "spammers," that are intended to deceive or mislead recipients or to offend them or to invade their privacy has grown into a costly problem for Internet service providers (ISPs), businesses and consumers, reportedly costing businesses and consumers $10 billion per year;

d. "Spammers" increasingly rely on falsification and computer hacking techniques to hide their commercial electronic mail messages and get them through to consumers;

e. ISPs pay for the cost of the extra bandwidth, storage and processing required to handle the high volume of "spam" from commercial senders and ISPs and businesses pay for Internet filtering software, which only partially blocks the receipt of "spam," and pay their employees for sorting through the billions of pieces of "spam" that get through Internet filters;

f. Consumers receiving "spam" not only pay increased costs passed along by ISPs and businesses for handling or sorting through "spam" but also spend large amounts of their own time deleting "spam" on their personal home computers;

g. In response to the increasingly costly problems caused by "spam" for businesses and consumers, over one half of the states have enacted laws to impose a variety of penalties on the irresponsible use of "spam;" in addition, the Federal Trade Commission has initiated major administrative actions under existing consumer protection laws to prosecute "spammers" who engage in deceptive and fraudulent practices; yet "spammers" are undeterred by and routinely flout these federal and state civil enforcement mechanisms;

h. Federal law now includes criminal prohibitions against the use of falsified "spam" techniques and enactment of these prohibitions at the State level would be an important new tool to address the hacking and falsification techniques of these outlaw "spammers;"

i. It is in the public interest for this State to enact its own law to prohibit "spam" that is sent using falsification or hacking techniques in order to reduce costs to businesses and consumers and to deter deceptive and fraudulent practices by "spammers"; and

j. "Spam" that is sent using falsification or hacking techniques is inherently deceptive and misleading and therefore falls outside of the protections that the First Amendment ordinarily affords to commercial speech.

3. As used in this act:

"Act" means the "New Jersey Can Spam Act."

"Commercial electronic mail message" or "commercial e-mail" means any electronic mail message sent primarily for the purpose of commercial advertisement, as advertisement is defined in section 1 of P.L.1960, c.39 (C.56:8-1), or promotion of a commercial product or service including, but not limited to, the content on an internet website or online site operated for a commercial purpose.

"Computer" means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.

"Computer network'' or "network" means any system or equipment that provides communications between one or more computer systems and input and output devices including, but not limited to, display terminals and printers connected by telecommunication facilities and shall include the internet.

"Computer system" means a device or collection of devices, including support devices and excluding calculators that are not programmable and capable of being used in conjunction with external files, one or more of which contain computer programs, electronic instructions, input data and output data, that performs functions including, but not limited to, logic, arithmetic, data storage and retrieval, communication and control.

"Domain name" means any alphanumeric designation that is registered with or assigned by a domain name registrar, domain name registry, or other domain name registration authority, as part of an electronic mail address on the internet.

"Electronic mail service provider" means any person, including an Internet service provider, that is an intermediary in sending and receiving electronic mail and that provides to the public the ability to send or receive electronic mail to or from an electronic mail account or online user account.

"Felony" means any offense under any federal law or the law of this State that is punishable by death or imprisonment for a term exceeding one year. The term includes, but is not limited to, "crimes" as that term is defined in N.J.S.2C:1-1 et seq.

"Header information" means the source, destination and routing information attached to an electronic mail message, including the originating domain name, originating electronic mail address and any other information that appears in the line identifying or purporting to identify a person initiating the message, and technical information that authenticates the sender of an electronic mail message for network security or network management services.

"Initiate" means, when used with respect to a commercial electronic mail message, to originate or transmit the message or to procure the origination or transmission of such message, and does not include the actions that constitute routine conveyance of such message.

"Internet" means the international computer network of both federal and nonfederal interoperable packet switched data networks.

"Internet protocol address" means the string of numbers by which location on the internet is identified by routers or other computers connected to the internet.

"Loss" means any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program or system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.

"Materially falsified" means altered or concealed in a manner that would impair the ability of one of the following to identify, locate or respond to a person who initiated an electronic mail message or to investigate an alleged violation of this section:

(1) a recipient of the message;

(2) an Internet access service processing the message on behalf of a recipient;

(3) a person alleging a violation of this section; or

(4) a law enforcement agency.

"Message" means each electronic mail message addressed to a discrete addressee.

"Multiple" means more than 10 electronic mail messages during a 24-hour period, more than 100 electronic mail messages during a 30-day period, or more than 1,000 electronic mail messages during a one-year period.

"Procure" means intentionally to pay or provide other consideration to another person to initiate the commercial e-mail, or intentionally to induce another person to initiate the commercial e-mail on the procurer's behalf.

"Protected computer" means a computer that is used in intrastate or interstate communication.

"Routine conveyance" means the transmission, routing, relaying, handling or storing through an automatic technical process, of an electronic mail message for which another person has identified the recipient or provided the recipient's address.

4. With regard to commercial electronic mail messages sent from or to a protected computer in this State or that are sent using a protected computer in this State, no person shall conspire to or knowingly:

a. use a protected computer of another person to relay or retransmit multiple commercial electronic mail messages with the intent to deceive or mislead recipients or any electronic mail service provider as to the origin of the messages;

b. materially falsify header information in multiple commercial electronic mail messages and intentionally initiate the transmission of the messages;

c. register, using information that materially falsifies the identity of the actual registrant, for five or more electronic mail accounts or on-line user accounts or two or more domain names, and intentionally initiate the transmission of multiple commercial electronic mail messages from one or more accounts or domain names or any combination of accounts or domain names;

d. falsely represent the right to use five or more Internet protocol addresses, and intentionally initiate the transmission of multiple commercial electronic mail messages from the Internet protocol addresses;

e. access a protected computer of another without authorization and intentionally initiate the transmission of multiple commercial electronic mail messages from or through the protected computer; or

f. violate the provisions of subsections a., b., c., d. or e. of this section by providing or selecting addresses to which a message was transmitted knowing that:

(1) the electronic mail addresses of the recipients were obtained using an automated means from an Internet website or proprietary online service operated by another person; and

(2) the website or online service included, at the time the addresses were obtained, a notice stating that the operator of the website or online service will not transfer addresses maintained by the website or online service to any other party for the purposes of initiating or enabling others to initiate electronic mail messages; or

g. violate the provisions of subsections a., b., c., d. or e. of this section by providing or selecting electronic mail addresses of recipients obtained using an automated means that generates possible electronic mail addresses by combining names, letters or numbers into numerous permutations.

5. a. Except as otherwise provided in this section, a person who violates the provisions of subsections a., b., c., d. or e. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) is guilty of a crime of the fourth degree.

b. A person who violates the provisions of subsections a., b., c., d. or e. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) involving the transmission of more than 250 commercial electronic mail messages during any 24-hour period, 2,500 commercial electronic mail messages during any 30-day period, or 25,000 commercial electronic mail messages during any one-year period, is guilty of a crime of the third degree.

c. A person who violates the provisions of subsections c. or d. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) involving 20 or more electronic mail accounts or ten or more domain names and who intentionally initiates the transmission of multiple commercial electronic mail messages from the accounts or using the domain names is guilty of a crime of the third degree.

d. A person who violates the provisions of subsections a., b., c., d. or e. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) causing a loss of $500 or more during any one-year period is guilty of a crime of the third degree.

e. A person who violates the provisions of subsections a., b., c., d. or e. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) in concert with three or more other persons as the organizer or leader of the action that constitutes the violation of section 4 of this act is guilty of a crime of the third degree.

f. A person who violates the provisions of subsections a., b., c., d. or e. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) in furtherance of a felony, or who has previously been convicted of an offense under the laws of this State or another state, or under any federal law, involving the transmission of multiple commercial electronic mail messages is guilty of a crime of the second degree.

g. A person who violates the provisions of subsections f. or g. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) is guilty of a crime of the fourth degree.

6. a. The Attorney General, or any person engaged in the business of an electronic mail service provider offering electronic mail service to the public aggrieved by reason of a violation of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill), may commence a civil action against the violator in the Superior Court for the relief set forth in subsections b. and c. of this section. No action may be brought under this subsection unless such action is commenced within two years of the date of the act which is the basis of the action.

b. In an action by the Attorney General under subsection a. of this section, the court may award appropriate relief including temporary, preliminary, or permanent injunctive relief. The court may also assess a civil penalty in an amount not exceeding $25,000 per day of violation, or not less than two dollars or more than eight dollars per commercial electronic mail message initiated in violation of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill), as the court considers just.

c. In any civil action under subsection a. of this section, the court may award appropriate relief, including temporary, preliminary, or permanent injunctive relief, and damages in an amount equal to the greater of:

(1) the actual damages suffered by an electronic mail service provider as a result of the violation, and any monetary proceeds received by the violator that are attributable to the violation and that were not taken into account in computing actual damages; or

(2) statutory damages in an amount not exceeding $25,000 per day of violation, or not less than two dollars or more than eight dollars per commercial electronic mail message initiated in violation of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill), as the court considers just.

7. A person who is convicted of an offense under P.L. , c. (C. ) (pending before the Legislature as this bill), shall forfeit to the State:

a. any property, real or personal, constituting or traceable to gross proceeds obtained from the offense; and

b. any equipment, software or other technology used or intended to be used to commit or to facilitate the commission of the offense.

8. This act shall take effect on the 120th day after enactment.

STATEMENT

This bill establishes criminal and civil penalties for committing offenses under certain circumstances involving unauthorized access to a protected computer, transmission of multiple commercial electronic mail messages, falsification of header information in multiple commercial electronic mail messages, falsification of registration information for multiple electronic mail accounts or domain names, obtaining the use of internet protocol addresses using false pretenses, and sending multiple commercial electronic mail messages from such account or domain names.

The bill makes it a crime of the fourth degree to violate the provisions of subsections a. through e. of section 4 of the bill concerning the use of another person's protected computer to send multiple deceptive commercial e-mail messages, the falsification of header information in multiple commercial e-mail messages, falsification of account registration information and the sending of multiple commercial e-mail from such accounts, falsely representing the right to use internet protocol addresses and sending multiple commercial e-mail messages from such addresses, and unauthorized accessing of a protected computer to send multiple commercial e-mail messages.

The bill makes it a crime of the fourth degree for violations of subsections f. or g. of section 4 of the bill involving the knowing use of e-mail addresses obtained by automated means from an internet website or another person's proprietary online service in cases in which the website or online service included a notice that the operator would not transfer user addresses to other persons for e-mail purposes, or for providing or selecting e-mail addresses of recipients using an automated means that randomly generates such addresses.

The bill makes it a crime of the third degree to violate the provisions of subsections a. through e. of section 4 of the bill involving the transmission of more than: 250 commercial e-mail messages in any 24-hour period, 2,500 commercial e-mail messages during any 30-day period or 25,000 commercial e-mail messages during any one year period; or for violations of subsections c. or d. of section 4 of the bill involving the transmission of multiple commercial e-mail messages from 20 or more electronic mail accounts or ten or more domain names; or for violations of the provisions of subsections a. through e. of section 4 of the bill involving a person who acts in concert with three or more others as an organizer of the action that constitutes a violation of section 4.

The bill makes it a crime of the second degree for violations of the provisions of subsections a. through e. of section 4 of the bill involving a person who commits such violation in furtherance of a felony or who has previously been convicted of an offense involving transmission of multiple commercial e-mail messages.

The bill authorizes the Attorney General, or an internet service provider offering internet service to the public aggrieved by reason of a violation of sections 4 of this bill, to commence a civil action against the violator in any appropriate court in this State for the relief set forth in subsections b. and c. of section 6 of this bill provided that such action is brought within two years of the act which is the basis for the action.

In an action brought by the Attorney General, the bill authorizes the court to award appropriate relief, including injunctive relief as well as a civil penalty in an amount not exceeding $25,000 per day of violation, or not less than $2 or more than $8 per commercial electronic mail message initiated in violation of section 4 of this bill, as the court considers just.

The bill also authorizes the court to award appropriate relief, including injunctive relief, and monetary damages in an amount equal to the greater of:

(1) the actual damages suffered by the internet service provider as a result of the violation, and any monetary proceeds received by the violator that are attributable to the violation and are not taken into account in computing actual damages; or

(2) statutory damages in an amount not exceeding $25,000 per day of violation, or not less than $2 or more than $8 per commercial electronic mail message initiated in violation of section 4 of the bill, as the court considers just.

The bill further provides that any person convicted of an offense under the bill's provisions shall forfeit to the State:

(1) any property, real or personal, constituting or traceable to gross proceeds obtained from the offense; and

(2) any equipment, software, or other technology used or intended to be used to commit or to facilitate the commission of the offense.