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2007 SESSION

073253232
HOUSE BILL NO. 2973
Offered January 10, 2007
Prefiled January 10, 2007
A BILL to amend and reenact §§ 18.2-152.2, 18.2-152.3:1, 18.2-152.12 of the Code of Virginia, relating to the transmission of unsolicited bulk electronic messages (spam); penalty.
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Patrons-- Bell, Athey, Cosgrove, Frederick, Gear, Jones, S.C., Miller, J.H. and O'Bannon
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Referred to Committee on Science and Technology
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Be it enacted by the General Assembly of Virginia:

1.  That §§ 18.2-152.2, 18.2-152.3:1, and 18.2-152.12 of the Code of Virginia are amended and reenacted as follows:

§ 18.2-152.2. Definitions.

For purposes of this article:

"Computer" means a device that accepts information in digital or similar form and manipulates it for a result based on a sequence of instructions, including but not limited to wireless communication devices. Such term does not include simple calculators, automated typewriters, facsimile machines, or any other specialized computing devices that are preprogrammed to perform a narrow range of functions with minimal end-user or operator intervention and are dedicated to a specific task.

"Computer data" means any representation of information, knowledge, facts, concepts, or instructions which is being prepared or has been prepared and is intended to be processed, is being processed, or has been processed in a computer or computer network. "Computer data" may be in any form, whether readable only by a computer or only by a human or by either, including, but not limited to, computer printouts, magnetic storage media, punched cards, or stored internally in the memory of the computer.

"Computer network" means two or more computers connected by a network.

"Computer operation" means arithmetic, logical, monitoring, storage or retrieval functions and any combination thereof, and includes, but is not limited to, communication with, storage of data to, or retrieval of data from any device or human hand manipulation of electronic or magnetic impulses. A "computer operation" for a particular computer may also be any function for which that computer was generally designed.

"Computer program" means an ordered set of data representing coded instructions or statements that, when executed by a computer, causes the computer to perform one or more computer operations.

"Computer services" means computer time or services, including data processing services, Internet services, electronic mail services, electronic message services, or information or data stored in connection therewith.

"Computer software" means a set of computer programs, procedures and associated documentation concerned with computer data or with the operation of a computer, computer program, or computer network.

"Electronic message" means any text, image, or other communication transmitted to a computer.

"Electronic mail message service provider" (EMSP) means any person who (i) is an intermediary in sending or receiving electronic mail messages and (ii) provides to end-users of electronic mail message services the ability to send or receive electronic mail messages.

"Financial instrument" includes, but is not limited to, any check, draft, warrant, money order, note, certificate of deposit, letter of credit, bill of exchange, credit or debit card, transaction authorization mechanism, marketable security, or any computerized representation thereof.

"Network" means any combination of digital transmission facilities and packet switches, routers, and similar equipment interconnected to enable the exchange of computer data.

"Owner" means an owner or lessee of a computer or a computer network or an owner, lessee, or licensee of computer data, computer programs or computer software.

"Person" shall include any individual, partnership, association, corporation or joint venture.

"Property" shall include:

1. Real property;

2. Computers and computer networks;

3. Financial instruments, computer data, computer programs, computer software and all other personal property regardless of whether they are:

a. Tangible or intangible;

b. In a format readable by humans or by a computer;

c. In transit between computers or within a computer network or between any devices which comprise a computer; or

d. Located on any paper or in any device on which it is stored by a computer or by a human; and

4. Computer services.

A person "uses" a computer or computer network when he attempts to cause or causes a computer or computer network to perform or to stop performing computer operations.

A person is "without authority" when he knows or reasonably should know that he has no right or permission or knowingly acts in a manner exceeding such right or permission.

§ 18.2-152.3:1. Transmission of unsolicited bulk electronic messages (UBEM); penalty.

A. Any person who:

1. Uses a computer or computer network with the intent to falsify or forge electronic mail message transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail messages through or into the computer network of an electronic mail message service provider or its subscribers; or

2. Knowingly sells, gives, or otherwise distributes or possesses with the intent to sell, give, or distribute software that (i) is primarily designed or produced for the purpose of facilitating or enabling the falsification of electronic mail message transmission information or other routing information; (ii) has only limited commercially significant purpose or use other than to facilitate or enable the falsification of electronic mail message transmission information or other routing information; or (iii) is marketed by that person acting alone or with another for use in facilitating or enabling the falsification of electronic mail message transmission information or other routing information is guilty of a Class 1 misdemeanor.

B. A person is guilty of a Class 6 felony if he commits a violation of subsection A and:

1. The volume of UBE unsolicited bulk electronic messages (UBEM) transmitted exceeded 10,000 exceeds 2,500 attempted recipients in any 24-hour period, 100,000 25,000 attempted recipients in any 30-day time period, or one million 250,000 attempted recipients in any one-year time period; or

2. The revenue generated from a specific UBE UBEM transmission exceeded exceeds $1,000 or the total revenue generated from all UBE UBEM transmitted to any EMSP exceeded exceeds $50,000.; or

3. A single recipient of an electronic message or multiple electronic messages incurs damages in excess of $250 during any one-year time period.

C. A person is guilty of a Class 6 felony if he knowingly hires, employs, uses, or permits any minor to assist in the transmission of UBE UBEM in violation of subdivision subdivisions B 1 or subdivision, B 2, or B 3.

§ 18.2-152.12. Civil relief; damages.

A. Any person whose property or person is injured by reason of a violation of any provision of this article or by any act of computer trespass set forth in subdivisions A 1 through A 6 of § 18.2-152.4 regardless of whether such act is committed with malicious intent may sue therefor and recover for any damages sustained and the costs of suit. Without limiting the generality of the term, "damages" shall include loss of profits.

B. If the injury under this article arises from the transmission of unsolicited bulk electronic mailmessages in contravention of the authority granted by or in violation of the policies set by the electronic mailmessage service provider where the defendant has knowledge of the authority or policies of the EMSP or where the authority or policies of the EMSP are available on the electronic mailmessage service provider's website, the injured person, other than an electronic mailmessage service provider, may also recover attorneys' fees and costs, and may elect, in lieu of actual damages, to recover the lesser of $10 for each and every unsolicited bulk electronic mail message transmitted in violation of this article, or $25,000 per day. The injured person shall not have a cause of action against the electronic mailmessage service provider that merely transmits the unsolicited bulk electronic mailmessages over its computer network. Transmission of electronic mailmessages from an organization to its members shall not be deemed to be unsolicited bulk electronic mailmessages.

C. If the injury under this article arises from the transmission of unsolicited bulk electronic mailmessages in contravention of the authority granted by or in violation of the policies set by the electronic mailmessage service provider where the defendant has knowledge of the authority or policies of the EMSP or where the authority or policies of the EMSP are available on the electronic mailmessage service provider's website, an injured electronic mailmessage service provider may also recover attorneys' fees and costs, and may elect, in lieu of actual damages, to recover $1 for each and every intended recipient of an unsolicited bulk electronic mail message where the intended recipient is an end user of the EMSP or $25,000 for each day an attempt is made to transmit an unsolicited bulk electronic mail message to an end user of the EMSP. In calculating the statutory damages under this provision, the court may adjust the amount awarded as necessary, but in doing so shall take into account the number of complaints to the EMSP generated by the defendant's messages, the defendant's degree of culpability, the defendant's prior history of such conduct, and the extent of economic gain resulting from the conduct. Transmission of electronic mailmessages from an organization to its members shall not be deemed to be unsolicited bulk electronic mailmessages.

D. At the request of any party to an action brought pursuant to this section, the court may, in its discretion, conduct all legal proceedings in such a way as to protect the secrecy and security of the computer, computer network, computer data, computer program and computer software involved in order to prevent possible recurrence of the same or a similar act by another person and to protect any trade secrets of any party and in such a way as to protect the privacy of nonparties who complain about violations of this section.

E. The provisions of this article shall not be construed to limit any person's right to pursue any additional civil remedy otherwise allowed by law.

F. A civil action under this section must be commenced before expiration of the time period prescribed in § 8.01-40.1. In actions alleging injury arising from the transmission of unsolicited bulk electronic mailmessages, personal jurisdiction may be exercised pursuant to § 8.01-328.1.

 

2.  That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice.