sb62_AP_11.html

05 SB62/AP

Senate Bill 62
By: Senators Shafer of the 48th, Staton of the 18th, Heath of the 31st and Hill of the 32nd

AS PASSED

AN ACT

To provide for a short title; to provide for legislative findings; to amend Article 6 of Chapter 9 of Title 16 of the Official Code of Georgia Annotated, relating to computer systems protections, so as to add a new part to create the new crime of initiation of deceptive commercial e_mail; to provide for definitions; to provide for criminal penalties; to provide for civil relief and venue for civil proceedings; to provide for certain prosecuting officials to prosecute deceptive commercial e_mail; to provide for applicability; to provide for exceptions; to designate specific information which may be disclosed by an electronic communication service or a remote computing service; to authorize search warrants or subpoenas under certain circumstances; to provide for certain authority of law enforcement units, the Attorney General, and district attorneys; to provide for certain records´ admissibility into evidence; to change provisions relating to the definition of racketeering activity in the Georgia RICO Act; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

This Act shall be known and may be cited as the "Georgia Slam Spam E_mail Act."

SECTION 2.

The General Assembly finds and declares that electronic mail has become an important and popular means of communication, relied on by millions of Georgians on a daily basis for personal and commercial purposes. The low cost and global reach of electronic mail make it convenient and efficient. Electronic mail serves as a catalyst for economic development and frictionless commerce. The General Assembly further finds that the convenience and efficiency of electronic mail is threatened by an ever_increasing glut of deceptive commercial electronic mail. The senders of these electronic messages engage in a variety of fraudulent and deceptive practices to hide their identities, to disguise the true source of their electronic mail, and to evade the criminal and civil consequences of their actions. Deceptive commercial electronic mail imposes costs upon its ultimate recipients who are forced to receive, review, and delete unwanted messages and upon the electronic mail service providers forced to carry the messages. The General Assembly further finds that our state has a paramount interest in protecting its businesses and citizens from the deleterious effects of deceptive commercial electronic mail, including the impermissible shifting of cost and economic burden that results from the false and fraudulent nature of deceptive commercial electronic mail. Georgia´s enforcement of this interest imposes no additional burden upon the senders of such electronic mails in relation to the laws of any other state, in that such enforcement requires nothing more than the senders´ forbearance from active deception.

SECTION 3.

Article 6 of Chapter 9 of Title 16 of the Official Code of Georgia Annotated, relating to computer systems protection, is amended by striking in its entirety Code Section 16_9_92, relating to definitions in the "Georgia Computer Systems Protection Act," and inserting in lieu thereof the following:

"16_9_92.

As used in this article, the term:

(1) 'Computer' means an electronic, magnetic, optical, hydraulic, electrochemical, or organic device or group of devices which, pursuant to a computer program, to human instruction, or to permanent instructions contained in the device or group of devices, can automatically perform computer operations with or on computer data and can communicate the results to another computer or to a person. The term includes any connected or directly related device, equipment, or facility which enables the computer to store, retrieve, or communicate computer programs, computer data, or the results of computer operations to or from a person, another computer, or another device. This term specifically includes, but is not limited to, mail servers and e_mail networks. This term does not include a device that is not used to communicate with or to manipulate any other computer.

(2) 'Computer network' means a set of related, remotely connected computers and any communications facilities with the function and purpose of transmitting data among them through the communications facilities.

(3) 'Computer operation' means computing, classifying, transmitting, receiving, retrieving, originating, switching, storing, displaying, manifesting, measuring, detecting, recording, reproducing, handling, or utilizing any form of data for business, scientific, control, or other purposes.

(4) 'Computer program' means one or more statements or instructions composed and structured in a form acceptable to a computer that, when executed by a computer in actual or modified form, cause the computer to perform one or more computer operations. The term 'computer program' shall include all associated procedures and documentation, whether or not such procedures and documentation are in human readable form.

(5) 'Data' includes any representation of information, intelligence, or data in any fixed medium, including documentation, computer printouts, magnetic storage media, punched cards, storage in a computer, or transmission by a computer network.

(6) 'Electronic communication' means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo_optical system that affects interstate or foreign commerce, but does not include:

(A) Any wire or oral communication;

(B) Any communication made through a tone_only paging device;

(D) Electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds.

(7) 'Electronic communication service' means any service which provides to its users the ability to send or receive wire or electronic communications.

(8) 'Electronic communications system' means any wire, radio, electromagnetic, photoelectronic, photo_optical, or facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications.

(9) 'Electronic means' is any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than:

(A) Any telephone or telegraph instrument, equipment, or facility, or any component thereof,

(i) Furnished to the subscriber or user by a provider of electronic communication service in the ordinary course of its business and used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or

(ii) Used by a provider of electronic communication service in the ordinary course of its business or by an investigative or law enforcement officer in the ordinary course of his or her duties; or

(B) A hearing aid or similar device being used to correct subnormal hearing to better than normal.

(10) 'Electronic storage' means:

(A) Any temporary, intermediate storage of wire or electronic communication incidental to its electronic transmission; and

(B) Any storage of such communication by an electronic communication service for purposes of backup protection of such communication.

(11) 'Financial instruments' includes any check, draft, money order, note, certificate of deposit, letter of credit, bill of exchange, credit or debit card, transaction_authorizing mechanism, or marketable security, or any computer representation thereof.

(12) 'Law enforcement unit' means any law enforcement officer charged with the duty of enforcing the criminal laws and ordinances of the state or of the counties or municipalities of the state who is employed by and compensated by the state or any county or municipality of the state or who is elected and compensated on a fee basis. The term shall include, but not be limited to, members of the Department of Public Safety, municipal police, county police, sheriffs, deputy sheriffs, and agents and investigators of the Georgia Bureau of Investigation.

(13) 'Property' includes computers, computer networks, computer programs, data, financial instruments, and services.

(14) 'Remote computing service' means the provision to the public of computer storage or processing services by means of an electronic communications system.

(15) 'Services' includes computer time or services or data processing services.

(16) 'Use' includes causing or attempting to cause:

(A) A computer or computer network to perform or to stop performing computer operations;

(B) The obstruction, interruption, malfunction, or denial of the use of a computer, computer network, computer program, or data; or

(17) 'Victim expenditure' means any expenditure reasonably and necessarily incurred by the owner to verify that a computer, computer network, computer program, or data was or was not altered, deleted, damaged, or destroyed by unauthorized use.

(18) 'Without authority' includes the use of a computer or computer network in a manner that exceeds any right or permission granted by the owner of the computer or computer network."

SECTION 4.

Said article is further amended by designating the existing matter thereof as Part 1 and by adding two new parts to the end of the article to read as follows:

"Part 2

16_9_100.

As used in this part, the term:

(1) 'Advertiser' means a person or entity that advertises through the use of commercial e_mail.

(2) 'Automatic technical process' means the actions performed by an e_mail service provider´s or telecommunications carrier´s computers or computer network while acting as an intermediary between the sender and the recipient of an e_mail.

(3) 'Commercial e_mail' means any e_mail message initiated for the purpose of advertising or promoting the lease, sale, rental, gift, offer, or other disposition of any property, services, or extension of credit.

(4) 'Direct consent' means that the recipient has expressly consented to receive e_mail advertisements from the advertiser or initiator, either in response to a clear and conspicuous request for direct consent or at the recipient´s own initiative.

(5) 'Domain' means any alphanumeric designation which is registered with or assigned by any domain name registrar, domain name registry, or other domain name registration authority as part of an electronic address on the Internet.

(6) 'Domain owner' means, in relation to an e_mail address, the actual owner at the time an e_mail is received at that address of a domain that appears in or comprises a portion of the e_mail address. The registrant of a domain is presumed to be the actual owner of that domain.

(7) 'E_mail' means an electronic message that is sent to an e_mail address and transmitted between two or more telecommunications devices, computers, or electronic devices capable of receiving electronic messages, whether or not the message is converted to hard copy format after receipt, viewed upon transmission, or stored for later retrieval. The term includes electronic messages that are transmitted through a local, regional, or global computer network.

(8) 'E_mail address' means a destination, commonly expressed as a string of characters, to which e_mail can be sent or delivered. An e_mail address consists of a user name or mailbox, the '@' symbol, and reference to a domain.

(9) 'E_mail service provider' means any person, including an Internet service provider, that is an intermediary in sending or receiving e_mail or that provides to end_users of the e_mail service the ability to send or receive e_mail.

(10) 'False or misleading,' when used in relation to a commercial e_mail, means that:

(A) The header information includes an originating or intermediate e_mail address, domain name, or Internet protocol address which was obtained by means of false or fraudulent pretenses or representations;

(B) The header information fails to accurately identify the computer used to initiate the e_mail;

(C) The subject line of the e_mail is intended to mislead a recipient about a material fact regarding the content or subject matter of the e_mail;

(D) The header information is altered or modified in a manner that impedes or precludes the recipient of the e_mail or an e_mail service provider from identifying, locating, or contacting the person who initiated the e_mail;

(E) The header information or content of the commercial e_mail, without authorization and with intent to mislead, references a personal name, entity name, trade name, mark, domain, address, phone number, or other personally identifying information belonging to a third party in such manner as would cause a recipient to believe that the third party authorized, endorsed, sponsored, sent, or was otherwise involved in the transmission of the commercial e_mail;

(F) The header information or content of the commercial e_mail contains false or fraudulent information regarding the identity, location, or means of contacting the initiator of the commercial e_mail; or

(G) The commercial e_mail falsely or erroneously states or represents that the transmission of the e_mail was authorized on the basis of:

(i) The recipient´s prior direct consent to receive the commercial e_mail; or

(ii) A preexisting or current business relationship between the recipient and either the initiator or advertiser.

(11) 'Header information' means those portions of an e_mail message which designate or otherwise identify:

(A) The sender;

(B) All recipients;

(D) The names or Internet protocol addresses of the computers, systems, or other means used to send, transmit, route, or receive the e_mail message.

The term does not include either the subject line or the content of an e_mail message.

(12) 'Incident' means the contemporaneous initiation in violation of this part of one or more commercial e_mails containing substantially similar content.

(13) 'Initiate' or 'initiator' means to transmit or cause to be transmitted a commercial e_mail, but does not include the routine transmission of the commercial e_mail through the network or system of a telecommunications utility or an e_mail service provider.

(14) 'Internet protocol address' means the unique numerical address assigned to and used to identify a specific computer or computer network that is directly connected to the Internet.

(15) 'Minor' means any person under the age of 18 years.

(16) 'Person' means a person as defined by Code Section 16_1_3 and specifically includes any limited liability company, trust, joint venture, or other legally cognizable entity.

(17) 'Preexisting or current business relationship,' as used in connection with the sending of a commercial e_mail, means that the recipient has made an inquiry and has provided his or her e_mail address, or has made an application, purchase, or transaction, with or without consideration, regarding products or services offered by the advertiser.

(18) 'Protected computer' means any computer that, at the time of an alleged violation of any provision of this part involving that computer, was located within the geographic boundaries of the State of Georgia.

(19) 'Recipient' means any addressee of a commercial e_mail advertisement. If an addressee of a commercial e_mail has one or more e_mail addresses to which a commercial e_mail is sent, the addressee shall be deemed to be a separate recipient for each e_mail address to which the e_mail is sent.

(20) 'Routine transmission' means the forwarding, routing, relaying, handling, or storing of an e_mail message through an automatic technical process. The term shall not include the sending, or the knowing participation in the sending, of commercial e_mail advertisements.

16_9_101.

Any person who initiates a commercial e_mail that the person knew or should have known to be false or misleading that is sent from, passes through, or is received by a protected computer shall be guilty of the crime of initiation of deceptive commercial e_mail.

16_9_102.

(a) Any person convicted of a violation of Code Section 16_9_101 shall be guilty of a misdemeanor and punished by a fine of not more than $1,000.00 or by imprisonment of not more than 12 months, or both, except:

(1) Where the volume of commercial e_mail transmitted exceeded 10,000 attempted recipients in any 24 hour period;

(2) Where the volume of commercial e_mail transmitted exceeded 100,000 attempted recipients in any 30 day period;

(3) Where the volume of commercial e_mail transmitted exceeded one million attempted recipients in any one_year period;

(4) Where the revenue generated from a specific commercial e_mail exceeded $1,000.00;

(5) Where the total revenue generated from all commercial e_mail transmitted to any e_mail service provider or its subscribers exceeded $50,000.00; or

(6) Where any person knowingly hires, employs, uses, or permits any minor to assist in the transmission of commercial e_mail in violation of Code Section 16_9_101,

the person shall be guilty of a felony and punished by a fine of not more than $50,000.00 or by imprisonment of not more than five years, or both.

(b) For the second conviction of Code Section 16_9_101 within a five_year period, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, the person shall be guilty of a felony and punished by a fine of not more than $50,000.00 or by imprisonment of not more than five years, or both. For the purpose of this subsection, the term 'conviction' shall include a plea of nolo contendere.

16_9_103.

For the purpose of venue under this part, any violation of this part shall be considered to have been committed:

(1) In the county of the principal place of business in this state of the owner of an involved protected computer, computer network, or any part thereof;

(2) In any county in which any person alleged to have violated any provision of this part had control or possession of any proceeds of the violation or of any books, records, documents, or property which were used in furtherance of the violation;

(3) In any county in which any act was performed in furtherance of any transaction which violated this part; and

(4) In any county from which, to which, or through which any use of an involved protected computer or computer network was made, whether by wires, electromagnetic waves, microwaves, or any other means of communication.

16_9_104.

The Attorney General shall have concurrent jurisdiction with the district attorneys and solicitors_general to conduct the criminal prosecution of violations of this part.

16_9_105.

(a) The following persons shall have standing to assert a civil action under this part:

(1) Any e_mail service provider whose protected computer was used to send, receive, or transmit an e_mail that was sent in violation of this part; and

(2) A domain owner of any e_mail address to which a deceptive commercial e_mail is sent in violation of this part, provided that the domain owner also owns a protected computer at which the e_mail was received.

(b) Any person who has standing and who suffers personal, property, or economic damage by reason of a violation of any provision of this part may initiate a civil action for and recover the greater of:

(1) Five thousand dollars plus expenses of litigation and reasonable attorney´s fees;

(2) Liquidated damages of $1,000.00 for each offending commercial e_mail, up to a limit of $2 million per incident, plus expenses of litigation and reasonable attorney´s fees; or

(3) Actual damages, plus expenses of litigation and reasonable attorney´s fees.

16_9_106.

(a) Any crime committed in violation of this part shall be considered a separate offense.

(b) The provisions of this part shall not be construed as limiting or precluding the application of any other provision of law which applies to any transaction or course of conduct which violates this part.

(c) Nothing in this part shall be construed to limit or restrict the adoption, implementation, or enforcement by an e_mail service provider or Internet service provider of a policy of declining to transmit, receive, route, relay, handle, or store certain types of e_mail.

16_9_107.

There shall be no cause of action under this part against an e_mail service provider on the basis of its routine transmission of any commercial e_mail over its computer network.

Part 3

16_9_108.

(a) In any investigation of a violation of this article or any investigation of a violation of Code Section 16_12_100, 16_12_100.1, 16_12_100.2, 16_5_90, or Article 8 of Chapter 9 of Title 16 involving the use of a computer in furtherance of the act, the Attorney General or any district attorney shall have the power to administer oaths; to call any party to testify under oath at such investigation; to require the attendance of witnesses and the production of books, records, and papers; and to take the depositions of witnesses. The Attorney General or any such district attorney is authorized to issue a subpoena for any witness or a subpoena to compel the production of any books, records, or papers.

(b) In case of refusal to obey a subpoena issued under this Code section to any person and upon application by the Attorney General or district attorney, the superior court in whose jurisdiction the witness is to appear or in which the books, records, or papers are to be produced may issue to that person an order requiring him or her to appear before the court to show cause why he or she should not be held in contempt for refusal to obey the subpoena. Failure to obey a subpoena may be punished by the court as contempt of court.

16_9_109.

(a) Any law enforcement unit, the Attorney General, or any district attorney who is conducting an investigation of a violation of this article or an investigation of a violation of Code Section 16_12_100, 16_12_100.1, 16_12_100.2, 16_5_90, or Article 8 of Chapter 9 of Title 16 involving the use of a computer in furtherance of the act may require the disclosure by a provider of electronic communication service or remote computing service of the contents of a wire or electronic communication that is in electronic storage in an electronic communications system for 180 days or less pursuant to a search warrant issued under the provisions of Article 2 of Chapter 5 of Title 17 by a court with jurisdiction over the offense under investigation. Such court may require the disclosure by a provider of electronic communication service or remote computing service of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than 180 days as set forth in subsection (b) of this Code section.

(b)(1) Any law enforcement unit, the Attorney General, or any district attorney may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service, exclusive of the contents of communications, only when any law enforcement unit, the Attorney General, or any district attorney:

(A) Obtains a search warrant as provided in Article 2 of Chapter 5 of Title 17;

(B) Obtains a court order for such disclosure under subsection (c) of this Code section; or

(2) A provider of electronic communication service or remote computing service shall disclose to any law enforcement unit, the Attorney General, or any district attorney the:

(A) Name;

(B) Address;

(D) Length of service, including the start date, and types of service utilized;

(E) Telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and

(F) Means and source of payment for such service, including any credit card or bank account number of a subscriber to or customer of such service when any law enforcement unit, the Attorney General, or any district attorney uses a subpoena authorized by Code Section 16_9_108 or 45_15_17 or a grand jury or trial subpoena when any law enforcement unit, the Attorney General, or any district attorney complies with paragraph (1) of this subsection.

(3) Any law enforcement unit, the Attorney General, or any district attorney receiving records or information under this subsection shall not be required to provide notice to a subscriber or customer. A provider of electronic communication service or remote computing service shall not disclose to a subscriber or customer the existence of any search warrant or subpoena issued pursuant to this article nor shall a provider of electronic communication service or remote computing service disclose to a subscriber or customer that any records have been requested by or disclosed to any law enforcement unit, the Attorney General, or any district attorney pursuant to this article.

(c) A court order for disclosure issued pursuant to (b) of this Code section may be issued by any superior court with jurisdiction over the offense under investigation and shall only issue such court order for disclosure if any law enforcement unit, the Attorney General, or any district attorney offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of an electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. A court issuing an order pursuant to this Code section, on a motion made promptly by a provider of electronic communication service or remote computing service, may quash or modify such order, if compliance with such order would be unduly burdensome or oppressive on such provider.

(d)(1) Any records supplied pursuant to this part shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following:

(A) The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records;

(B) The copy is a true copy of all the records described in the subpoena, court order, or search warrant and the records were delivered to the attorney or the attorney´s representative;

(C) The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event;

(D) The sources of information and method and time of preparation were such as to indicate its trustworthiness;

(E) The identity of the records; and

(F) A description of the mode of preparation of the records.

(2) If the business has none or only part of the records described, the custodian or other qualified witness shall so state in the affidavit.

(3) If the original records would be admissible in evidence if the custodian or other qualified witness had been present and testified to the matters stated in the affidavit, the copy of the records shall be admissible in evidence. When more than one person has knowledge of the facts, more than one affidavit shall be attached to the records produced.

(4) No later than 30 days prior to trial, a party intending to offer such evidence produced in compliance with this subsection shall provide written notice of such intentions to the opposing party or parties. A motion opposing the admission of such evidence shall be filed within ten days of the filing of such notice, and the court shall hold a hearing and rule on such motion no later than ten days prior to trial. Failure of a party to file such motion opposing admission prior to trial shall constitute a waiver of objection to such records and affidavit. However, the court, for good cause shown, may grant relief from such waiver."

SECTION 5.

Said title is further amended in Code Section 16_14_3, relating to definitions relative to the "Georgia RICO (Racketeer Influenced and Corrupt Organizations) Act," by striking the word "or" at the end of division (9)(A)(xxxvii), by striking the symbol "." at the end of division (9)(A)(xxxviii) and inserting in lieu thereof the symbol and word "; or", and by adding a new division (9)(A)(xxxix) to read as follows:

"(xxxix) Code Section 16_9_101, relating to deceptive commercial e_mail."

SECTION 6.

All laws and parts of laws in conflict with this Act are repealed.