House File 610 - Enrolled PAG LIN 1 1 HOUSE FILE 610 1 2 1 3 AN ACT 1 4 RELATING TO THE TRANSMISSION OF ELECTRONIC MAIL INCLUDING 1 5 THE TRANSMISSION OF UNSOLICITED BULK ELECTRONIC MAIL, AND 1 6 THE SALE OR OFFER FOR DIRECT SALE OF PRESCRIPTION DRUGS 1 7 AND THE SALE OF ADULTERATED OR MISBRANDED DRUGS THROUGH THE 1 8 USE OF ELECTRONIC MAIL OR THE INTERNET, AND PROVIDING FOR 1 9 PENALTIES. 1 10 1 11 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 1 12 1 13 Section 1. NEW SECTION. 716A.1 DEFINITIONS. 1 14 As used in this chapter, unless the context otherwise 1 15 requires: 1 16 1. "Computer" means the same as defined in section 702.1A. 1 17 2. "Computer data" means the same as defined in section 1 18 702.1A. 1 19 3. "Computer network" means the same as defined in section 1 20 702.1A. 1 21 4. "Computer operation" means arithmetic, logical, 1 22 monitoring, storage, or retrieval functions, or any 1 23 combination thereof, and includes, but is not limited to, 1 24 communication with, storage of data to, or retrieval of data 1 25 from any device or human hand manipulation of electronic or 1 26 magnetic impulses. "Computer operation" for a particular 1 27 computer may also mean any function for which the computer was 1 28 generally designed. 1 29 5. "Computer program" means an ordered set of data 1 30 representing coded instructions or statements that, when 1 31 executed by a computer, causes the computer to perform one or 1 32 more computer operations. 1 33 6. "Computer services" means computer time or services, 1 34 including data processing services, internet services, 1 35 electronic mail services, electronic message services, or 2 1 information or data stored in connection therewith. 2 2 7. "Computer software" means a set of computer programs, 2 3 procedures, and associated documentation concerned with 2 4 computer data or with computer operation, a computer program, 2 5 or a computer network. 2 6 8. "Electronic mail service provider" means a person who 2 7 does either of the following: 2 8 a. Is an intermediary in sending or receiving electronic 2 9 mail. 2 10 b. Provides to end users of electronic mail services the 2 11 ability to send or receive electronic mail. 2 12 9. "Encryption" means the enciphering of intelligible data 2 13 into unintelligible form or the deciphering of unintelligible 2 14 data into intelligible form. 2 15 10. "Owner" means an owner or lessee of a computer or a 2 16 computer network or an owner, lessee, or licensee of computer 2 17 data, a computer program, or computer software. 2 18 11. "Person" means the same as defined in section 4.1. 2 19 12. "Property" means all of the following: 2 20 a. Real property. 2 21 b. Computers, computer equipment, computer networks, and 2 22 computer services. 2 23 c. Financial instruments, computer data, computer 2 24 programs, computer software, and all other personal property 2 25 regardless of whether they are any of the following: 2 26 (1) Tangible or intangible. 2 27 (2) In a format readable by humans or by a computer. 2 28 (3) In transit between computers or within a computer 2 29 network or between any devices which comprise a computer. 2 30 (4) Located on any paper or in any device on which it is 2 31 stored by a computer or by a person. 2 32 13. "Uses" means, when referring to a computer or computer 2 33 network, causing or attempting to cause any of the following: 2 34 a. A computer or computer network to perform or to stop 2 35 performing computer operations. 3 1 b. The withholding or denial of the use of a computer, 3 2 computer network, computer program, computer data, or computer 3 3 software to another user. 3 4 c. A person to put false information into a computer. 3 5 Sec. 2. NEW SECTION. 716A.2 TRANSMISSION OF UNSOLICITED 3 6 BULK ELECTRONIC MAIL == CRIMINAL PENALTIES. 3 7 1. A person who does any of the following is guilty of an 3 8 aggravated misdemeanor: 3 9 a. Uses a computer or computer network with the intent to 3 10 falsify or forge electronic mail transmission information or 3 11 other routing information in any manner in connection with the 3 12 transmission of unsolicited bulk electronic mail through or 3 13 into the computer network of an electronic mail service 3 14 provider or its subscribers. 3 15 b. Knowingly sells, gives, or otherwise distributes or 3 16 possesses with the intent to sell, give, or otherwise 3 17 distribute computer software that does any of the following: 3 18 (1) Is primarily designed or produced for the purpose of 3 19 facilitating or enabling the falsification of electronic mail 3 20 transmission information or other routing information. 3 21 (2) Has only limited commercially significant purpose or 3 22 use other than to facilitate or enable the falsification of 3 23 electronic mail transmission information or other routing 3 24 information. 3 25 (3) Is marketed by that person acting alone or with 3 26 another for use in facilitating or enabling the falsification 3 27 of electronic mail transmission information or other routing 3 28 information. 3 29 2. A person is guilty of a class "D" felony for committing 3 30 a violation of subsection 1 when either of the following 3 31 apply: 3 32 a. The volume of unsolicited bulk electronic mail 3 33 transmitted exceeds ten thousand attempted recipients in any 3 34 twenty=four=hour period, one hundred thousand attempted 3 35 recipients in any thirty=day time period, or one million 4 1 attempted recipients in any twelve=month time period. 4 2 b. The revenue generated from a specific unsolicited bulk 4 3 electronic mail transmission exceeds one thousand dollars or 4 4 the total revenue generated from all unsolicited bulk 4 5 electronic mail transmitted to any electronic mail service 4 6 provider by the person exceeds fifty thousand dollars. 4 7 3. A person is guilty of a class "D" felony if the person 4 8 knowingly hires, employs, uses, or permits a person less than 4 9 eighteen years of age to assist in the transmission of 4 10 unsolicited bulk electronic mail in violation of subsection 2. 4 11 4. Transmission of electronic mail from an organization to 4 12 a member of the organization shall not be a violation of this 4 13 section. 4 14 Sec. 3. NEW SECTION. 716A.3 SALE OR OFFER FOR DIRECT 4 15 SALE OF PRESCRIPTION DRUGS == CRIMINAL PENALTIES. 4 16 1. The retail sale or offer of direct retail sale of a 4 17 prescription drug, as defined in section 155A.3, through the 4 18 use of electronic mail or the internet by a person other than 4 19 a licensed pharmacist, physician, dentist, optometrist, 4 20 podiatric physician, or veterinarian, is prohibited. A person 4 21 who violates this subsection is guilty of a simple 4 22 misdemeanor. 4 23 2. A person who knowingly sells an adulterated or 4 24 misbranded drug through the use of electronic mail or the 4 25 internet is guilty of a class "D" felony. However, if the 4 26 death of a person occurs as the result of consuming a drug, as 4 27 defined in section 155A.3, sold in violation of this section, 4 28 the violation is a class "B" felony. 4 29 Sec. 4. NEW SECTION. 716A.4 USE OF ENCRYPTION == 4 30 CRIMINAL PENALTY. 4 31 A person who willfully uses encryption to further a 4 32 violation of this chapter is guilty of an offense which is 4 33 separate and distinct from the predicate criminal activity and 4 34 punishable as an aggravated misdemeanor. 4 35 Sec. 5. NEW SECTION. 716A.5 VENUE FOR CRIMINAL 5 1 VIOLATIONS. 5 2 For the purpose of venue, a violation of this chapter shall 5 3 be considered to have been committed in any county in which 5 4 any of the following apply: 5 5 1. An act was performed in furtherance of any course of 5 6 conduct which violated this chapter. 5 7 2. The owner has a place of business in the state. 5 8 3. An offender has control or possession of any proceeds 5 9 of the violation, or of any books, records, documents, 5 10 property, financial instrument, computer software, computer 5 11 program, computer data, or other material or objects used in 5 12 furtherance of the violation. 5 13 4. Access to a computer or computer network was made by 5 14 wires, electromagnetic waves, microwaves, or any other means 5 15 of communication. 5 16 5. The offender resides. 5 17 6. A computer which is an object or an instrument of the 5 18 violation is located at the time of the alleged offense. 5 19 Sec. 6. NEW SECTION. 716A.6 CIVIL RELIEF == DAMAGES. 5 20 1. A person who is injured by a violation of this chapter 5 21 may bring a civil action seeking relief from a person whose 5 22 conduct violated this chapter and recover any damages incurred 5 23 including loss of profits, attorney fees, and court costs. 5 24 2. A person who is injured by the transmission of 5 25 unsolicited bulk electronic mail in violation of this chapter, 5 26 may elect, in lieu of actual damages, to recover either of the 5 27 following: 5 28 a. The lesser of ten dollars for each unsolicited bulk 5 29 electronic mail message transmitted in violation of this 5 30 chapter, or twenty=five thousand dollars per day the messages 5 31 are transmitted by the violator. 5 32 b. One dollar for each intended recipient of an 5 33 unsolicited bulk electronic mail message where the intended 5 34 recipient is an end user of the electronic mail service 5 35 provider, or twenty=five thousand dollars for each day an 6 1 attempt is made to transmit an unsolicited bulk electronic 6 2 mail message to an end user of the electronic mail service 6 3 provider. 6 4 3. a. A violation of this chapter is a violation of 6 5 section 714.16, subsection 2, paragraph "a". All the powers 6 6 conferred upon the attorney general to accomplish the 6 7 objectives and carry out the duties prescribed pursuant to 6 8 section 714.16 are also conferred upon the attorney general to 6 9 enforce this chapter, including, but not limited to, the power 6 10 to issue subpoenas, adopt rules which shall have the force of 6 11 law, and seek injunctive relief and civil penalties. 6 12 b. In seeking reimbursement pursuant to section 714.16, 6 13 subsection 7, from a person who has committed a violation of 6 14 this chapter, the attorney general may seek an order from the 6 15 court that the person pay to the attorney general on behalf of 6 16 consumers the amounts for which the person would be liable 6 17 under subsection 1 or 2, for each consumer who has a cause of 6 18 action pursuant to this section. Section 714.16, as it 6 19 relates to consumer reimbursement, shall apply to consumer 6 20 reimbursement pursuant to this section. 6 21 4. At the request of any party to an action brought 6 22 pursuant to this section, the court may, in its discretion, 6 23 conduct all legal proceedings in such a way as to protect the 6 24 secrecy and security of the computer, computer network, 6 25 computer data, computer program, and computer software 6 26 involved in order to prevent possible recurrence of the same 6 27 or a similar act by another person, and to protect any trade 6 28 secrets of any party and in such a way as to protect the 6 29 privacy of nonparties who complain about violations pursuant 6 30 to this section. 6 31 5. This section shall not be construed to limit a person's 6 32 right to pursue any additional civil remedy otherwise allowed 6 33 by law. 6 34 6. An action brought pursuant to this section shall be 6 35 commenced before the earlier of five years after the last act 7 1 in the course of conduct constituting a violation of this 7 2 chapter or two years after the injured person discovers or 7 3 reasonably should have discovered the last act in the course 7 4 of conduct constituting a violation of this chapter. 7 5 7. Personal jurisdiction may be exercised over any person 7 6 who engages in any conduct in this state governed by this 7 7 chapter. 7 8 8. The injured person shall not have a cause of action 7 9 against the electronic mail service provider that merely 7 10 transmits the unsolicited bulk electronic mail over its 7 11 computer network. 7 12 Sec. 7. NEW SECTION. 716A.7 FORFEITURES FOR VIOLATIONS 7 13 OF THIS CHAPTER. 7 14 All property, including all income or proceeds earned but 7 15 not yet received from a third party as a result of a violation 7 16 of this chapter, used in connection with a violation of this 7 17 chapter, known by the owner thereof to have been used in 7 18 violation of this chapter, shall be subject to seizure and 7 19 forfeiture pursuant to chapter 809A. 7 20 Sec. 8. Chapter 714E, Code 2005, is repealed. 7 21 7 22 7 23 7 24 CHRISTOPHER C. RANTS 7 25 Speaker of the House 7 26 7 27 7 28 7 29 JOHN P. KIBBIE 7 30 President of the Senate 7 31 7 32 I hereby certify that this bill originated in the House and 7 33 is known as House File 610, Eighty=first General Assembly. 7 34 7 35 8 1 8 2 MARGARET THOMSON 8 3 Chief Clerk of the House 8 4 Approved , 2005 8 5 8 6 8 7 8 8 THOMAS J. VILSACK 8 9 Governor