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Public Act 91-0233
HB2616 Enrolled LRB9104846BBpr
AN ACT in relation to electronic mail.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. Short title. This Act may be cited as the
Electronic Mail Act.
Section 5. Definitions. As used in this Act:
"Electronic mail advertisement" means any electronic mail
message, the principal purpose of which is to promote,
directly or indirectly, the sale or other distribution of
goods or services to the recipient.
"Unsolicited electronic mail advertisement" means any
electronic mail advertisement that (i) is addressed to a
recipient with whom the initiator does not have a prior or
existing business or personal relationship and (ii) is not
sent at the request of or with the express consent of the
recipient.
"Electronic mail service provider" means any business or
organization qualified to do business in Illinois that
provides registered users the ability to send or receive
electronic mail through equipment located in this State and
that is an intermediary in sending or receiving electronic
mail.
"Initiation" of an electronic mail message refers to the
action by the initial sender of the electronic mail message.
"Initiation" does not refer to the actions of any intervening
electronic mail service provider that may handle or
retransmit the electronic mail message.
"Registered user" means any individual or entity that
maintains an electronic mail address with an electronic mail
service provider.
"Electronic mail address" means a destination, commonly
expressed as a string of characters, to which electronic mail
may be sent or delivered.
"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.
Section 10. Unsolicited or misleading electronic mail;
prohibition.
(a) No individual or entity may initiate or cause to be
initiated an unsolicited electronic mail advertisement if the
electronic mail advertisement (i) uses a third party's
Internet domain name without permission of the third party,
or otherwise misrepresents any information in identifying the
point of origin or the transmission path of an electronic
mail advertisement or (ii) contains false or misleading
information in the subject line.
(b) This Section applies when the unsolicited electronic
mail advertisement is delivered to an Illinois resident via
an electronic mail service provider's service or equipment
located in this State.
(c) Any person, other than an electronic mail service
provider, who suffers actual damages as a result of a
violation of this Section committed by any individual or
entity may bring an action against such individual or entity.
The injured person may recover attorney's fees and costs, and
may elect, in lieu of recovery of actual damages, to recover
the lesser of $10 for each and every unsolicited electronic
mail advertisement transmitted in violation of this Section,
or $25,000 per day. The injured person shall not have a
cause of action against the electronic mail service provider
that merely transmits the unsolicited electronic mail
advertisement over its computer network.
(d) Any electronic mail service provider who suffers
actual damages as a result of a violation of this Section
committed by any individual or entity may bring an action
against such individual or entity. The injured person may
recover attorney's fees and costs, and may elect, in lieu of
recovery of actual damages, to recover the lesser of $10 for
each and every unsolicited electronic mail advertisement
transmitted in violation of this Section, or $25,000 per day.
(e) The provisions of this Section shall not be
construed to limit any person's right to pursue any
additional civil remedy otherwise allowed by law.
(f) An electronic mail service provider may, upon its
own initiative, block the receipt or transmission through its
service of any unsolicited electronic mail advertisement that
it reasonably believes is, or will be, sent in violation of
this Section.
(g) No electronic mail service provider may be held
liable for any action voluntarily taken in good faith to
block the receipt or transmission through its service of any
unsolicited electronic mail advertisement which it reasonably
believes is, or will be, sent in violation of this Section.
Section 15. Consumer Fraud and Deceptive Business
Practices Act. In addition to any other penalties specified
in this Act, violation of this Act constitutes an unlawful
practice under the Consumer Fraud and Deceptive Business
Practices Act.
Section 900. The Criminal Code of 1961 is amended by
changing Sections 16D-2 and 16D-3 as follows:
(720 ILCS 5/16D-2) (from Ch. 38, par. 16D-2)
Sec. 16D-2. Definitions. As used in this Article,
unless the context otherwise indicates:
(a) "Computer" means a device that accepts, processes,
stores, retrieves or outputs data, and includes but is not
limited to auxiliary storage and telecommunications devices
connected to computers.
(a-5) "Computer network" means a set of related, remotely
connected devices and any communications facilities including
more than one computer with the capability to transmit data
among them through the communications facilities.
(b) "Computer program" or "program" means a series of
coded instructions or statements in a form acceptable to a
computer which causes the computer to process data and supply
the results of the data processing.
(b-5) "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.
(c) "Data" means a representation of information,
knowledge, facts, concepts or instructions, including program
documentation, which is prepared in a formalized manner and
is stored or processed in or transmitted by a computer. Data
shall be considered property and may be in any form including
but not limited to printouts, magnetic or optical storage
media, punch cards or data stored internally in the memory of
the computer.
(c-5) "Electronic mail service provider" means any person
who (1) is an intermediary in sending or receiving electronic
mail and (2) provides to end-users of electronic mail
services the ability to send or receive electronic mail.
(d) In addition to its meaning as defined in Section
15-1 of this Code, "property" means: (1) electronic impulses;
(2) electronically produced data; (3) confidential,
copyrighted or proprietary information; (4) private
identification codes or numbers which permit access to a
computer by authorized computer users or generate billings to
consumers for purchase of goods and services, including but
not limited to credit card transactions and
telecommunications services or permit electronic fund
transfers; (5) software or programs in either machine or
human readable form; or (6) any other tangible or intangible
item relating to a computer or any part thereof.
(e) "Access" means to use, instruct, communicate with,
store data in, retrieve or intercept data from, or otherwise
utilize any services of a computer.
(f) "Services" includes but is not limited to computer
time, data manipulation or storage functions.
(g) "Vital services or operations" means those services
or operations required to provide, operate, maintain, and
repair network cabling, transmission, distribution, or
computer facilities necessary to ensure or protect the public
health, safety, or welfare. Public health, safety, or
welfare include, but are not limited to, services provided by
medical personnel or institutions, fire departments,
emergency services agencies, national defense contractors,
armed forces or militia personnel, private and public utility
companies, or law enforcement agencies.
(Source: P.A. 85-926.)
(720 ILCS 5/16D-3) (from Ch. 38, par. 16D-3)
Sec. 16D-3. Computer Tampering.
(a) A person commits the offense of computer tampering
when he knowingly and without the authorization of a
computer's owner, as defined in Section 15-2 of this Code, or
in excess of the authority granted to him:
(1) Accesses or causes to be accessed a computer or
any part thereof, or a program or data;
(2) Accesses or causes to be accessed a computer or
any part thereof, or a program or data, and obtains data
or services;
(3) Accesses or causes to be accessed a computer or
any part thereof, or a program or data, and damages or
destroys the computer or alters, deletes or removes a
computer program or data;
(4) Inserts or attempts to insert a "program" into
a computer or computer program knowing or having reason
to believe that such "program" contains information or
commands that will or may damage or destroy that
computer, or any other computer subsequently accessing or
being accessed by that computer, or that will or may
alter, delete or remove a computer program or data from
that computer, or any other computer program or data in a
computer subsequently accessing or being accessed by that
computer, or that will or may cause loss to the users of
that computer or the users of a computer which accesses
or which is accessed by such "program";.
(5) Falsifies or forges electronic mail
transmission information or other routing information in
any manner in connection with the transmission of
unsolicited bulk electronic mail through or into the
computer network of an electronic mail service provider
or its subscribers;
(a-5) It shall be unlawful for any person knowingly to
sell, give, or otherwise distribute or possess with the
intent to sell, give, or distribute software which (1) is
primarily designed or produced for the purpose of
facilitating or enabling the falsification of electronic mail
transmission information or other routing information; (2)
has only a limited commercially significant purpose or use
other than to facilitate or enable the falsification of
electronic mail transmission information or other routing
information; or (3) is marketed by that person or another
acting in concert with that person with that person's
knowledge for use in facilitating or enabling the
falsification of electronic mail transmission information or
other routing information.
(b) Sentence.
(1) A person who commits the offense of computer
tampering as set forth in subsection (a)(1), (a)(5), or
(a-5) of this Section shall be guilty of a Class B
misdemeanor.
(2) A person who commits the offense of computer
tampering as set forth in subsection (a)(2) of this
Section shall be guilty of a Class A misdemeanor and a
Class 4 felony for the second or subsequent offense.
(3) A person who commits the offense of computer
tampering as set forth in subsection (a)(3) or subsection
(a)(4) of this Section shall be guilty of a Class 4
felony and a Class 3 felony for the second or subsequent
offense.
(4) If the injury arises from the transmission of
unsolicited bulk electronic mail, the injured person,
other than an electronic mail service provider, may also
recover attorney's 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 Section, or $25,000 per
day. The injured person shall not have a cause of action
against the electronic mail service provider that merely
transmits the unsolicited bulk electronic mail over its
computer network.
(5) If the injury arises from the transmission of
unsolicited bulk electronic mail, an injured electronic
mail service provider may also recover attorney's fees
and costs, and may elect, in lieu of actual damages, to
recover the greater of $10 for each and every unsolicited
electronic mail advertisement transmitted in violation of
this Section, or $25,000 per day.
(6) The provisions of this Section shall not be
construed to limit any person's right to pursue any
additional civil remedy otherwise allowed by law.
(c) Whoever suffers loss by reason of a violation of
subsection (a)(4) of this Section may, in a civil action
against the violator, obtain appropriate relief. In a civil
action under this Section, the court may award to the
prevailing party reasonable attorney's fees and other
litigation expenses.
(Source: P.A. 86-762.)
Section 905. The Consumer Fraud and Deceptive Business
Practices Act is amended by changing Section 2Z as follows:
(815 ILCS 505/2Z) (from Ch. 121 1/2, par. 262Z)
Sec. 2Z. Violations of other Acts. Any person who
knowingly violates the Automotive Repair Act, the Dance
Studio Act, the Physical Fitness Services Act, the Hearing
Instrument Consumer Protection Act, the Illinois Union Label
Act, the Job Referral and Job Listing Services Consumer
Protection Act, the Travel Promotion Consumer Protection Act,
the Credit Services Organizations Act, the Automatic
Telephone Dialers Act, the Pay-Per-Call Services Consumer
Protection Act, the Telephone Solicitations Act, the Illinois
Funeral or Burial Funds Act, the Cemetery Care Act, or the
Pre-Need Cemetery Sales Act, or the Electronic Mail Act
commits an unlawful practice within the meaning of this Act.
(Source: P.A. 89-72, eff. 12-31-95; 89-615, eff. 8-9-96;
90-426, eff. 1-1-98.)
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