S T A T E O F N E W Y O R K
________________________________________________________________________
5196
2009-2010 Regular Sessions
I N A S S E M B L Y
February 11, 2009
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Introduced by M. of A. BRODSKY -- read once and referred to the Commit-
tee on Consumer Affairs and Protection
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
MISLEADING ELECTRONIC MAIL
SECTION 1701. DEFINITIONS.
1702. MISLEADING ELECTRONIC MAIL; PROHIBITION.
1703. UNAUTHORIZED AND MISLEADING ELECTRONIC MAIL; PROHIBITION.
1704. VIOLATIONS AND DAMAGES.
1705. BLOCKING OF COMMERCIAL ELECTRONIC MAIL BY INTERACTIVE
COMPUTER SERVICE; IMMUNITY FROM LIABILITY.
S 1701. DEFINITIONS.
FOR THE PURPOSES OF THIS ARTICLE, THE FOLLOWING TERMS HAVE THE FOLLOW-
ING MEANINGS:
(A) "ASSIST THE TRANSMISSION" MEANS ACTIONS TAKEN BY A PERSON TO
PROVIDE SUBSTANTIAL ASSISTANCE OR SUPPORT WHICH ENABLES ANY PERSON TO
FORMULATE, COMPOSE, SEND, ORIGINATE, INITIATE OR TRANSMIT A COMMERCIAL
ELECTRONIC MAIL MESSAGE WHEN THE PERSON PROVIDING THE ASSISTANCE KNOWS
OR CONSCIOUSLY AVOIDS KNOWING THAT THE INITIATOR OF THE COMMERCIAL ELEC-
TRONIC MAIL MESSAGE IS ENGAGED OR INTENDS TO ENGAGE, IN ANY PRACTICE
THAT VIOLATES THE PROVISIONS OF THIS ARTICLE.
(B) "COMMERCIAL ELECTRONIC MAIL MESSAGE" MEANS AN ELECTRONIC MAIL
MESSAGE SENT FOR THE PURPOSE OF ADVERTISING OR PROMOTING MATERIAL FOR
THE LEASE, SALE, RENTAL, GIFT OFFER OR OTHER DISPOSITION OF ANY REALTY,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08655-01-9
A. 5196 2
GOODS, SERVICES OR EXTENSION OF CREDIT. IT DOES NOT MEAN AN ELECTRONIC
MAIL MESSAGE (1) TO WHICH AN INTERACTIVE COMPUTER SERVICE PROVIDER HAS
ATTACHED AN ADVERTISEMENT IN EXCHANGE FOR FREE USE OF AN ELECTRONIC MAIL
ACCOUNT, WHEN THE SENDER HAS AGREED TO SUCH AN ARRANGEMENT; (2)
ADDRESSED TO A RECIPIENT WITH WHOM THE INITIATOR HAS AN EXISTING BUSI-
NESS OR PERSONAL RELATIONSHIP; AND (3) SENT AT THE REQUEST OF OR WITH
THE EXPRESS CONSENT OF THE RECIPIENT.
(C) "ELECTRONIC MAIL ADDRESS" MEANS A DESTINATION, COMMONLY EXPRESSED
AS A STRING OF CHARACTERS, TO WHICH ELECTRONIC MAIL MAY BE SENT OR
DELIVERED.
(D) "INITIATE THE TRANSMISSION" REFERS TO THE ACTION BY THE ORIGINAL
SENDER OF AN ELECTRONIC MAIL MESSAGE, NOT TO THE ACTION BY ANY INTERVEN-
ING INTERACTIVE COMPUTER SERVICE THAT MAY HANDLE OR RETRANSMIT THE
MESSAGE, UNLESS SUCH INTERVENING INTERACTIVE COMPUTER SERVICE ASSISTS IN
THE TRANSMISSION OF AN ELECTRONIC MAIL MESSAGE WHEN IT KNOWS OR
CONSCIOUSLY AVOIDS KNOWING THAT THE PERSON INITIATING THE TRANSMISSION
IS ENGAGED, OR INTENDS TO ENGAGE, IN ANY ACT OR PRACTICE THAT VIOLATES
THE PROVISIONS OF THIS ARTICLE.
(E) "INTERACTIVE COMPUTER SERVICE" MEANS ANY INFORMATION SERVICE,
SYSTEM OR ACCESS SOFTWARE PROVIDER THAT PROVIDES OR ENABLES COMPUTER
ACCESS BY MULTIPLE USERS TO A COMPUTER SERVER, INCLUDING SPECIFICALLY A
SERVICE OR SYSTEM THAT PROVIDES ACCESS TO THE INTERNET AND SUCH SYSTEMS
OPERATED OR SERVICES OFFERED BY LIBRARIES OR EDUCATIONAL INSTITUTIONS.
(F) "INTERNET DOMAIN NAME" REFERS TO A GLOBALLY UNIQUE, HIERARCHICAL
REFERENCE TO AN INTERNET HOST OR SERVICE, ASSIGNED THROUGH CENTRALIZED
INTERNET NAMING AUTHORITIES, COMPRISING A SERIES OF CHARACTER STRINGS
SEPARATED BY PERIODS WITH THE RIGHT-MOST STRING SPECIFYING THE TOP OF
THE HIERARCHY.
(G) "PERSON OR ENTITY" MEANS A PERSON, CORPORATION, PARTNERSHIP,
COMPANY, LIMITED LIABILITY COMPANY, TRUST OR ASSOCIATION, OR ANY AGENT
OR EMPLOYEE THEREOF.
S 1702. MISLEADING ELECTRONIC MAIL; PROHIBITION.
(A) NO PERSON SHALL INITIATE THE TRANSMISSION, CONSPIRE WITH ANOTHER
TO INITIATE THE TRANSMISSION OR ASSIST THE TRANSMISSION 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; OR
(2) CONTAINS FALSE OR MISLEADING INFORMATION IN THE SUBJECT LINE.
(B) FOR THE PURPOSES OF THIS SECTION, A PERSON KNOWS THAT THE INTENDED
RECIPIENT OF A COMMERCIAL ELECTRONIC MAIL MESSAGE IS A RESIDENT OF THIS
STATE IF THAT INFORMATION IS AVAILABLE, UPON REQUEST, FROM THE REGIS-
TRANT OF THE INTERNET DOMAIN NAME CONTAINED IN THE RECIPIENT'S ELECTRON-
IC MAIL ADDRESS.
S 1703. UNAUTHORIZED AND MISLEADING ELECTRONIC MAIL; PROHIBITION.
(A) NO PERSON SHALL INITIATE THE TRANSMISSION OR CONSPIRE WITH ANOTHER
PERSON TO INITIATE THE TRANSMISSION OF A COMMERCIAL ELECTRONIC MAIL
MESSAGE THAT:
(1) USES A THIRD PARTY'S INTERNET DOMAIN NAME WITHOUT THE PERMISSION
OF SUCH THIRD PARTY OR OTHERWISE MISREPRESENTS OR OBSCURES ANY INFORMA-
TION IN IDENTIFYING THE POINT OF ORIGIN OR THE TRANSMISSION PATH OF A
COMMERCIAL ELECTRONIC MAIL MESSAGE; OR
(2) CONTAINS FALSE OR MISLEADING INFORMATION IN THE SUBJECT LINE.
A. 5196 3
(B) NO PERSON SHALL ASSIST IN THE TRANSMISSION OF A COMMERCIAL ELEC-
TRONIC MAIL MESSAGE WHEN THE PERSON PROVIDING THE ASSISTANCE KNOWS OR
CONSCIOUSLY AVOIDS KNOWING THAT THE INITIATOR OF THE COMMERCIAL ELEC-
TRONIC MAIL MESSAGE IS ENGAGED OR INTENDS TO ENGAGE IN ANY ACT OR PRAC-
TICE THAT VIOLATES THE PROVISIONS OF THIS ARTICLE.
(C) NOTWITHSTANDING ANY INCONSISTENT PROVISION OF THIS CHAPTER, NO
PERSON OR ENTITY SHALL INITIATE THE TRANSMISSION OR CONSPIRE TO INITIATE
THE TRANSMISSION OF AN UNSOLICITED COMMERCIAL ELECTRONIC MAIL MESSAGE
UNLESS THAT PERSON OR ENTITY ESTABLISHES A TOLL-FREE TELEPHONE NUMBER OR
VALID SENDER OPERATED RETURN E-MAIL ADDRESS THAT THE RECIPIENT OF THE
UNSOLICITED DOCUMENTS MAY CALL OR E-MAIL TO NOTIFY THE SENDER NOT TO
E-MAIL ANY FURTHER UNSOLICITED DOCUMENTS.
(D) ALL UNSOLICITED COMMERCIAL ELECTRONIC MAIL MESSAGES SUBJECT TO
THIS SECTION SHALL INCLUDE A STATEMENT INFORMING THE RECIPIENT OF THE
TOLL-FREE TELEPHONE NUMBER THAT THE RECIPIENT MAY CALL OR A VALID RETURN
ADDRESS TO WHICH THE RECIPIENT MAY WRITE BY POSTAL MAIL OR E-MAIL, AS
THE CASE MAY BE, NOTIFYING THE SENDER NOT TO E-MAIL TO THE RECIPIENT ANY
FURTHER UNSOLICITED COMMERCIAL ELECTRONIC MAIL MESSAGES AT THE E-MAIL
ADDRESS OR ADDRESSES SPECIFIED BY THE RECIPIENT. THE STATEMENT SHALL BE
THE FIRST TEXT IN THE BODY OF THE MESSAGE AND SHALL BE OF THE SAME SIZE
AS THE MAJORITY OF THE TEXT OF THE MESSAGE.
(E) UPON NOTIFICATION BY A RECIPIENT OF HIS OR HER REQUEST NOT TO
RECEIVE ANY FURTHER UNSOLICITED COMMERCIAL ELECTRONIC MAIL MESSAGES, NO
PERSON OR ENTITY CONDUCTING BUSINESS IN THIS STATE SHALL E-MAIL OR CAUSE
TO BE E-MAILED ANY COMMERCIAL ELECTRONIC MAIL MESSAGES TO THAT RECIPI-
ENT.
(F) THIS SECTION SHALL APPLY WHEN THE UNSOLICITED COMMERCIAL ELECTRON-
IC MAIL MESSAGES ARE DELIVERED TO A STATE RESIDENT VIA AN ELECTRONIC
MAIL SERVICE PROVIDER'S SERVICE OR EQUIPMENT LOCATED IN THIS STATE.
(G) AS USED IN THIS SECTION, "TRANSMISSION" DOES NOT INCLUDE OR REFER
TO THE TRANSMISSION OF ANY DOCUMENTS BY A TELECOMMUNICATIONS UTILITY OR
INTERACTIVE COMPUTER SERVICE, TO THE EXTENT THAT THE TELECOMMUNICATIONS
UTILITY OR INTERACTIVE COMPUTER SERVICE MERELY CARRIES THAT TRANSMISSION
OVER ITS NETWORK.
(H) IN THE CASE OF E-MAIL THAT CONSISTS OF UNSOLICITED COMMERCIAL
ELECTRONIC MAIL MESSAGES, THE SUBJECT LINE OF EACH AND EVERY MESSAGE
SHALL INCLUDE "ADV:" AS THE FIRST FOUR CHARACTERS. IF THESE MESSAGES
CONTAIN INFORMATION THAT CONSISTS OF UNSOLICITED COMMERCIAL ELECTRONIC
MAIL MESSAGES THAT MAY ONLY BE VIEWED, PURCHASED, RENTED, LEASED OR HELD
IN POSSESSION BY AN INDIVIDUAL EIGHTEEN YEARS OF AGE AND OLDER, THE
SUBJECT LINE OF EACH AND EVERY MESSAGE SHALL INCLUDE "ADV:ADLT" AS THE
FIRST EIGHT CHARACTERS.
(I) AN EMPLOYER WHO IS THE REGISTERED OWNER OF MORE THAN ONE E-MAIL
ADDRESS MAY DIRECT A PERSON OR ENTITY CONDUCTING BUSINESS IN THIS STATE
AND E-MAILING OR CAUSING TO BE E-MAILED UNSOLICITED COMMERCIAL ELECTRON-
IC MAIL MESSAGES TO CEASE E-MAILING TO ALL OF SUCH EMPLOYER'S EMPLOYEES
WHO MAY USE EMPLOYER-PROVIDED AND EMPLOYER-CONTROLLED E-MAIL ADDRESSES.
(J) THE APPLICABILITY OF THIS ARTICLE OR ANY PROVISION OF THIS ARTICLE
SHALL BE SUSPENDED ON AND AFTER THE EFFECTIVE DATE OF FEDERAL LAW THAT
PROHIBITS OR OTHERWISE CONCURRENTLY OR MORE STRINGENTLY REGULATES THE
TRANSMISSION OF UNSOLICITED COMMERCIAL ELECTRONIC MAIL MESSAGES IN THIS
STATE FOR SO LONG AS SUCH FEDERAL LAW IS IN EFFECT.
S 1704. VIOLATIONS AND DAMAGES.
(A) DAMAGES RECOVERABLE BY A RECIPIENT OF A COMMERCIAL ELECTRONIC MAIL
MESSAGE SENT IN VIOLATION OF THIS ARTICLE ARE FIVE HUNDRED DOLLARS OR
ACTUAL DAMAGES, WHICHEVER IS GREATER, PAYABLE BY THE INITIATOR.
A. 5196 4
(B) DAMAGES RECOVERABLE BY AN INTERACTIVE COMPUTER SERVICE RESULTING
FROM A VIOLATION OF THIS ARTICLE ARE ONE THOUSAND DOLLARS OR ACTUAL
DAMAGES, WHICHEVER IS GREATER, PAYABLE BY THE INITIATOR.
S 1705. BLOCKING OF COMMERCIAL ELECTRONIC MAIL BY INTERACTIVE COMPUTER
SERVICE; IMMUNITY FROM LIABILITY.
(A) AN INTERACTIVE COMPUTER SERVICE MAY, UPON ITS OWN INITIATIVE,
BLOCK THE RECEIPT OR TRANSMISSION THROUGH ITS SERVICE OF ANY COMMERCIAL
ELECTRONIC MAIL THAT IT REASONABLY BELIEVES IS OR WILL BE SENT IN
VIOLATION OF THE PROVISIONS OF THIS ARTICLE.
(B) NO INTERACTIVE COMPUTER SERVICE MAY BE HELD LIABLE FOR ANY ACTION
VOLUNTARILY TAKEN, IN GOOD FAITH, TO BLOCK THE RECEIPT OR TRANSMISSION
THROUGH ITS SERVICE OF ANY COMMERCIAL ELECTRONIC MAIL WHICH IT REASON-
ABLY BELIEVES IS BEING OR WILL BE SENT IN VIOLATION OF THE PROVISIONS OF
THIS ARTICLE.
S 2. This act shall take effect on the ninetieth day after it shall
have become a law.