Bill Text: NY A04991 | 2009-2010 | General Assembly | Introduced
Bill Title: An act to amend the general business law, in relation to prohibiting the transmission of unsolicited bulk electronic mail through an electronic mail service provider's network located in this state
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2010-01-06 - referred to consumer affairs and protection [A04991 Detail]
Download: New_York-2009-A04991-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
4991
2009-2010 Regular Sessions
I N A S S E M B L Y
February 10, 2009
___________
Introduced by M. of A. BRODSKY -- read once and referred to the Commit-
tee on Consumer Affairs and Protection
AN ACT to amend the general business law, in relation to prohibiting the
transmission of unsolicited bulk electronic mail through an electronic
mail service provider's network located in this state
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The general business law is amended by adding a new section
2 396-ii to read as follows:
3 S 396-II. UNLAWFUL TRANSMISSION OF UNSOLICITED BULK ELECTRONIC MAIL.
4 1. IT SHALL BE UNLAWFUL FOR A PERSON OR OTHER ENTITY TO TRANSMIT OR
5 CAUSE THE TRANSMISSION OF UNSOLICITED BULK ELECTRONIC MAIL TO OR THROUGH
6 AN ELECTRONIC MAIL SERVICE PROVIDER'S COMPUTER NETWORK LOCATED IN THIS
7 STATE. FOR PURPOSES OF THIS SECTION: (A) "COMPUTER SERVICES" MEANS
8 COMPUTER TIME, INCLUDING DATA PROCESSING SERVICES, INTERNET SERVICES,
9 ELECTRONIC MAIL SERVICES, ELECTRONIC MESSAGE SERVICES, OR INFORMATION OR
10 DATA STORED IN CONNECTION THEREWITH. (B) "ELECTRONIC MAIL SERVICE
11 PROVIDER" MEANS ANY PERSON OR OTHER ENTITY WHO OR WHICH (I) IS AN INTER-
12 MEDIARY SENDING OR RECEIVING ELECTRONIC MAIL AND (II) PROVIDES TO
13 END-USERS OF ELECTRONIC MAIL SERVICES THE ABILITY TO SEND OR RECEIVE
14 ELECTRONIC MAIL.
15 2. NO PERSON OR OTHER ENTITY SHALL WITHOUT AUTHORITY TRANSMIT OR
16 CAUSE TO BE TRANSMITTED ANY UNSOLICITED ELECTRONIC MAIL. A PERSON OR
17 OTHER ENTITY IS "WITHOUT AUTHORITY" WHEN (A) HE, SHE OR IT HAS NO RIGHT
18 OR PERMISSION OF THE OWNER TO USE A COMPUTER OR (B) HE, SHE OR IT USES A
19 COMPUTER OR COMPUTER NETWORK WITHOUT AUTHORITY AND WITH THE INTENT TO
20 FALSIFY OR FORGE ELECTRONIC MAIL TRANSMISSION INFORMATION OR OTHER
21 ROUTING INFORMATION, IN ANY MANNER, IN CONNECTION WITH THE TRANSMISSION
22 OF UNSOLICITED BULK ELECTRONIC MAIL THROUGH OR INTO THE COMPUTER NETWORK
23 OF AN ELECTRONIC MAIL SERVICE PROVIDER OR ITS SUBSCRIBER.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08653-01-9
A. 4991 2
1 3. IT IS UNLAWFUL FOR ANY PERSON OR OTHER ENTITY TO SELL, GIVE OR
2 OTHERWISE DISTRIBUTE OR POSSESS WITH THE INTENT TO SELL, GIVE OR
3 DISTRIBUTE SOFTWARE WHICH (A) IS PRIMARILY DESIGNED OR PRODUCED FOR THE
4 PURPOSE OF FACILITATING OR ENABLING THE FALSIFICATION OF ELECTRONIC MAIL
5 TRANSMISSION INFORMATION OR OTHER ROUTING INFORMATION; (B) HAS ONLY
6 LIMITED COMMERCIALLY SIGNIFICANT PURPOSE OR USE OTHER THAN TO FACILITATE
7 OR ENABLE THE FALSIFICATION OF ELECTRONIC MAIL TRANSMISSION INFORMATION
8 OR OTHER ROUTING INFORMATION; OR (C) IS MARKETED BY THAT PERSON OR OTHER
9 ENTITY OR ANOTHER ACTING IN CONCERT WITH THAT PERSON OR OTHER ENTITY
10 WITH THAT PERSON'S OR OTHER ENTITY'S KNOWLEDGE FOR USE IN FACILITATING
11 OR ENABLING THE FALSIFICATION OF ELECTRONIC MAIL TRANSMISSION INFORMA-
12 TION OR OTHER ROUTING INFORMATION.
13 4. ANY PERSON OR OTHER ENTITY WHO VIOLATES THIS SECTION SHALL BE GUIL-
14 TY OF COMPUTER TRESPASS, WHICH OFFENSE SHALL BE PUNISHABLE AS A MISDE-
15 MEANOR, IF THERE IS DAMAGE TO THE PROPERTY OF ANOTHER.
16 5. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO INTERFERE WITH OR
17 PROHIBIT TERMS OR CONDITIONS IN A CONTRACT OR LICENSE RELATED TO COMPUT-
18 ERS, COMPUTER DATA, COMPUTER NETWORKS, COMPUTER OPERATIONS, COMPUTER
19 PROGRAMS, COMPUTER SERVICES OR COMPUTER SOFTWARE, OR TO CREATE ANY
20 LIABILITY BY REASON OF TERMS OR CONDITIONS ADOPTED BY, OR TECHNICAL
21 MEASURES IMPLEMENTED BY, AN ELECTRONIC MAIL SERVICE PROVIDER SITUATE IN
22 THE STATE TO PREVENT THE TRANSMISSION OF UNSOLICITED ELECTRONIC MAIL IN
23 VIOLATION OF THIS SECTION.
24 6. ANY PERSON OR OTHER ENTITY WHOSE PROPERTY OR PERSON IS INJURED BY
25 REASON OF A VIOLATION OF ANY PROVISION OF THIS SECTION MAY SUE THEREFOR
26 AND RECOVER FOR ANY DAMAGES SUSTAINED AND THE COSTS OF SUIT. WITHOUT
27 LIMITING THE GENERALITY OF THE TERM, "DAMAGES" SHALL INCLUDE LOSS OF
28 PROFIT.
29 7. IF THE INJURY ARISES FROM THE TRANSMISSION OF UNSOLICITED BULK
30 ELECTRONIC MAIL, THE INJURED PERSON OR OTHER ENTITY, OTHER THAN AN ELEC-
31 TRONIC MAIL SERVICE PROVIDER, MAY ALSO RECOVER ATTORNEY'S FEES AND
32 COSTS, AND MAY ELECT, IN LIEU OF ACTUAL DAMAGES, TO RECOVER THE LESSER
33 OF TEN DOLLARS FOR EACH AND EVERY UNSOLICITED BULK MAIL MESSAGE TRANS-
34 MITTED IN VIOLATION OF THIS SECTION OR TWENTY-FIVE THOUSAND DOLLARS PER
35 DAY. THE INJURED PERSON OR OTHER ENTITY SHALL NOT HAVE A CAUSE OF ACTION
36 AGAINST AN ELECTRONIC MAIL SERVICE PROVIDER WHICH MERELY TRANSMITS THE
37 UNSOLICITED BULK ELECTRONIC MAIL OVER ITS COMPUTER NETWORK. IF THE INJU-
38 RY ARISES FROM THE TRANSMISSION OF UNSOLICITED BULK ELECTRONIC MAIL, AN
39 INJURED ELECTRONIC MAIL SERVICE PROVIDER MAY ALSO RECOVER THE GREATER OF
40 TEN DOLLARS FOR EACH AND EVERY UNSOLICITED BULK ELECTRONIC MAIL MESSAGE
41 TRANSMITTED IN VIOLATION OF THIS SECTION OR TWENTY-FIVE THOUSAND DOLLARS
42 PER DAY.
43 8. AT THE REQUEST OF ANY PARTY TO AN ACTION BROUGHT PURSUANT TO THIS
44 SECTION, THE COURT MAY, IN ITS DISCRETION, CONDUCT ALL LEGAL PROCEEDINGS
45 IN SUCH A WAY AS TO PROTECT THE SECRECY AND SECURITY OF THE COMPUTER,
46 COMPUTER NETWORK, COMPUTER DATA, COMPUTER PROGRAM AND COMPUTER SOFTWARE
47 INVOLVED IN ORDER TO PREVENT POSSIBLE RECURRENCE OF THE SAME OR A SIMI-
48 LAR ACT BY ANOTHER PERSON OR OTHER ENTITY AND TO PROTECT ANY TRADE
49 SECRETS OF ANY PARTY.
50 9. THE PROVISIONS OF THIS SECTION SHALL NOT BE CONSTRUED TO LIMIT ANY
51 PERSON'S OR OTHER ENTITY'S RIGHT TO PURSUE ANY ADDITIONAL CIVIL REMEDIES
52 OTHERWISE ALLOWED BY LAW.
53 S 2. This act shall take effect on the first of November next succeed-
54 ing the date on which it shall have become a law.
