S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3357

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 27, 2009
                               ___________

Introduced  by  M.  of A. BRADLEY, CHRISTENSEN, DelMONTE, GALEF, FIELDS,
  COOK -- Multi-Sponsored by -- M. of A. HOOPER, KOON, MAYERSOHN, McENE-
  NY, PHEFFER, REILLY, ROBINSON, WEISENBERG -- read once and referred to
  the Committee on Corporations, Authorities and Commissions

AN ACT to amend the business corporation law, in relation  to  unauthor-
  ized and misleading electronic mail

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The business corporation law is amended  by  adding  a  new
article 17 to read as follows:
                                ARTICLE 17
                            UNAUTHORIZED AND
                   FALSE OR MISLEADING ELECTRONIC MAIL

SECTION 1701. FALSE OR MISLEADING ELECTRONIC MAIL; PROHIBITION.
S 1701. FALSE OR MISLEADING ELECTRONIC MAIL; PROHIBITION.
  (A)  NO  PERSON  OR ENTITY SHALL INITIATE THE TRANSMISSION, SOLICIT OR
PROCURE ANOTHER TO INITIATE THE TRANSMISSION, OR ASSIST  IN  THE  TRANS-
MISSION  OF A COMMERCIAL ELECTRONIC MAIL MESSAGE FROM A COMPUTER LOCATED
IN THIS STATE OR TO AN ELECTRONIC MAIL ADDRESS THAT THE SENDER KNOWS, OR
HAS REASON TO KNOW, IS HELD BY A RESIDENT OF THIS STATE THAT:
  (1) USES A THIRD PARTY'S INTERNET DOMAIN NAME  WITHOUT  PERMISSION  OF
THE  THIRD PARTY, OR OTHERWISE MISREPRESENTS OR OBSCURES ANY INFORMATION
IN IDENTIFYING THE POINT OF ORIGIN OR THE TRANSMISSION PATH OF A COMMER-
CIAL ELECTRONIC MAIL MESSAGE INCLUDING, BUT NOT LIMITED TO, ANY IMBEDDED
OR OTHERWISE INVISIBLE OR INACCESSIBLE INFORMATION REGARDING  THE  POINT
OF  ORIGIN  OR  TRANSMISSION  PATH  OF  THE  COMMERCIAL  ELECTRONIC MAIL
MESSAGE; OR
  (2) CONTAINS FALSE OR MISLEADING INFORMATION IN THE SUBJECT LINE; OR
  (3) OTHERWISE CONTAINS FALSE OR MISLEADING INFORMATION OR CONTENT; OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03363-01-9

              

A. 3357                             2

  (4) OTHERWISE CONTAINS AN ATTACHED FILE THAT IS  FALSE  OR  LIKELY  TO
MISLEAD THE RECIPIENT.
  (B) FOR PURPOSES OF THIS SECTION:
  (I) MISLEADING AND/OR UNSOLICITED COMMERCIAL ELECTRONIC MESSAGES SHALL
BE  KNOWN  AS SPAM, AND SHALL CONSIST OF COMMERCIAL ELECTRONIC MAIL SENT
TO A PERSON WHO:
  (1) DOES NOT HAVE AN EXISTING PERSONAL OR BUSINESS  RELATIONSHIP  WITH
THE SENDER; AND
  (2)  HAS  NOT GIVEN PERMISSION FOR OR REQUESTED THE SENDING OF COMMER-
CIAL ELECTRONIC MAIL.
  (II) COMPUTER SHALL HAVE THE SAME MEANING AS DEFINED IN SECTION 156.00
OF THE PENAL LAW.
  (C) A VIOLATION OF THE PROVISIONS OF PARAGRAPH  (A)  OF  THIS  SECTION
SHALL  BE  A  MISDEMEANOR  PUNISHABLE  BY  A  FINE OF UP TO FIVE HUNDRED
DOLLARS FOR EACH INCIDENT, A TERM OF IMPRISONMENT OF UP TO ONE YEAR,  OR
BOTH  SUCH  FINE AND IMPRISONMENT.   TRANSMISSION OF THE MESSAGE TO EACH
RECIPIENT SHALL CONSTITUTE A DISTINCT  AND  SEPARATE  INCIDENT  FOR  THE
PURPOSES OF THIS SECTION.
  (D) A PERSON WHO HIRES, EMPLOYS, USES, OR PERMITS A MINOR TO ASSIST IN
THE  TRANSMISSION  OF  ELECTRONIC MAIL IN VIOLATION OF THE PROVISIONS OF
PARAGRAPH (A) OF THIS SECTION IS GUILTY OF  A  CLASS  E  FELONY  AND  IS
PUNISHABLE  BY A FINE OF UP TO TEN THOUSAND DOLLARS FOR EACH INCIDENT, A
TERM OF IMPRISONMENT OF UP TO THREE YEARS, OR BOTH SUCH FINE AND  IMPRI-
SONMENT.
  (E) IN ADDITION TO ANY OTHER PENALTY IMPOSED PURSUANT TO THIS SECTION,
THE FOLLOWING PENALTIES SHALL BE IMPOSED:
  (1)  IF  AN INDIVIDUAL OR ENTITY CAUSES OR ASSISTS IN THE TRANSMISSION
OF OR TRANSMITS MORE THAN TEN THOUSAND SPAM MESSAGES IN ANY  TWENTY-FOUR
HOUR  PERIOD,  SUCH  INDIVIDUAL  OR  ENTITY SHALL BE GUILTY OF A CLASS E
FELONY, AND IS PUNISHABLE BY A FINE OF UP TO FIVE  THOUSAND  DOLLARS,  A
TERM OF IMPRISONMENT OF UP TO TWO YEARS, OR BOTH SUCH FINE AND IMPRISON-
MENT.
  (2)  IF  AN INDIVIDUAL OR ENTITY CAUSES OR ASSISTS IN THE TRANSMISSION
OF OR TRANSMITS MORE THAN ONE HUNDRED  THOUSAND  SPAM  MESSAGES  IN  ANY
THIRTY  DAY PERIOD, SUCH INDIVIDUAL OR ENTITY SHALL BE GUILTY OF A CLASS
E FELONY, AND IS PUNISHABLE BY A FINE OF UP TO TEN THOUSAND  DOLLARS,  A
TERM  OF IMPRISONMENT OF UP TO THREE YEARS, OR BOTH SUCH FINE AND IMPRI-
SONMENT.
  (3) IF AN INDIVIDUAL OR ENTITY CAUSES OR ASSISTS IN  THE  TRANSMISSION
OF  OR  TRANSMITS  MORE  THAN  ONE MILLION SPAM MESSAGES IN ANY ONE YEAR
PERIOD, SUCH INDIVIDUAL OR ENTITY SHALL BE GUILTY OF A CLASS  E  FELONY,
AND  IS  PUNISHABLE  BY  A FINE OF UP TO TWENTY-FIVE THOUSAND DOLLARS, A
TERM OF IMPRISONMENT OF UP TO FIVE YEARS, OR BOTH SUCH FINE  AND  IMPRI-
SONMENT.
  (F)  (1)  THE  ATTORNEY  GENERAL OR A DISTRICT ATTORNEY MAY COMMENCE A
CRIMINAL ACTION PURSUANT TO THIS SECTION.
  (2) IN ADDITION TO ANY CRIMINAL  CHARGES,  A  PRIVATE  INDIVIDUAL  MAY
COMMENCE  A  CIVIL  ACTION AGAINST ANY PERSON OR ENTITY WHO VIOLATES THE
PROVISIONS OF THIS SECTION AGAINST SUCH PRIVATE INDIVIDUAL. THE  PRIVATE
INDIVIDUAL  SHALL  BE  ENTITLED  TO  HIS  OR  HER ACTUAL DAMAGES OR FIVE
HUNDRED DOLLARS, WHICHEVER IS GREATER. THE COURT SHALL AWARD COURT COSTS
AND DISBURSEMENTS TO A PREVAILING PLAINTIFF. THE COURT SHALL ALSO  AWARD
REASONABLE ATTORNEY'S FEES TO A PREVAILING PLAINTIFF.
  S  2.  This  act shall take effect on the ninetieth day after it shall
have become a law.