SRC-AMY C.S.H.B. 1282 78(R)    BILL ANALYSIS


Senate Research CenterC.S.H.B. 1282
By: McCall (Duncan)
Business & Commerce
5-21-2003
Committee Report (Substituted)
DIGEST AND PURPOSE 

Unsolicited commercial electronic mail is a growing concern among Internet
users.  Recent studies indicate an increase in e-mail traffic and a
corresponding increase in unsolicited commercial electronic mail. C.S.H.B.
1282 provides a legal option for industry and consumers to challenge
entities that send unsolicited commercial electronic mail. 

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to
a state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Title 4, Business & Commerce Code, by adding Chapter
46, as follows: 

CHAPTER 46.  ELECTRONIC MAIL SOLICITATION

Sec. 46.001.  DEFINITIONS.  Defines "commercial electronic mail message,"
"electronic mail," "electronic mail service provider," "established
business relationship," "Internet domain name," "obscene," "sender,"
"sexual conduct," and "unsolicited commercial electronic mail message." 

Sec. 46.002.  CERTAIN ELECTRONIC MAIL MESSAGES PROHIBITED.  (a) Prohibits
a person from transmitting a commercial electronic mail message that meets
certain criteria. 

(b) Prohibits a person from sending a commercial electronic message that
uses another person's Internet domain name without that person's consent. 

Sec. 46.003.  UNSOLICITED ELECTRONIC MAIL MESSAGES.  (a) Prohibits a
person from intentionally taking any action to send an unsolicited
commercial electronic mail unless "ADV:" is used as the first four
characters in the subject line of the message, or if the message contains
any obscene material depicting sexual conduct, "ADV: ADULT ADVERTISEMENT"
is used as the first word in the subject line of the message and the
sender, or a person acting on the sender's behalf, provides a functioning
return electronic mail address through which a recipient can request, at
no cost to the recipient, removal from the sender's electronic mail list. 

(b) Requires a sender to remove a person's electronic mail address from
the sender's list not later than the 3rd day after receiving a request for
removal under Subsection (a)(2). 

Sec. 46.004.  SALE OR PROVISION OF ADDRESS ON ELECTRONIC MAIL LIST
PROHIBITED.  Prohibits the sender, or a person acting on the sender's
behalf, from selling or otherwise providing the electronic mail address of
a person who has requested removal from the sender's list, except as
required by law. 

Sec. 46.005.  CRIMINAL PENALTY.  Establishes what constitutes an offense
under this section and provides that such an offense qualifies as a Class
B misdemeanor. 

 Sec. 46.006.  CIVIL PENALTY.  (a) Provides that a person who violates
this chapter, other than Section 46.009 (Notice to Attorney General), is
liable for a civil penalty not to exceed the lesser of $10 per unlawful
message or $25,000 each day an unlawful message is received or an action
is taken. 

(b) Authorizes the attorney general or prosecuting attorney in the county
in which the violation occurs to bring suit to recover the penalty or seek
an injunction to prevent or restrain a violation of this chapter. 

(c) Authorizes the attorney general or prosecuting attorney in the county
in which the violation occurs to recover reasonable expenses incurred in
obtaining a civil penalty under this section. 

Sec. 46.007.  DECEPTIVE TRADE PRACTICES.  Defines what constitutes a
violation of this chapter and authorizes any public or private right
remedy prescribed under Subchapter E, Chapter 17 (Deceptive Trade
Practices and Consumer Protection) to enforce this chapter, except as
provided by Section 46.008(d). 

Sec. 46.008.  CIVIL LIABILITY.  (a) Authorizes a person injured by a
violation of this chapter to bring an action to recover actual damages,
including lost profits, and provides that a person who prevails is
entitled to reasonable attorney's fees and court costs. 

(b) Authorizes a person injured by a violation of this chapter from
unsolicited or commercial electronic mail transmission, other than an
electronic e-mail provider, to recover the lesser of $10 per unlawful
message or $25,000 each day an unlawful message is received, in lieu of
actual damages. 

(c) Authorizes an electronic mail service provider injured by a violation
of this chapter from unsolicited or commercial electronic mail
transmission to recover the greater of $10 per unlawful message or $25,000
each day an unlawful message is received, in lieu of actual damages. 

(d) Prohibits a court from certifying an action brought under this chapter
as a class action. 

(e) Authorizes the court, at the request of a party to any action brought
under this chapter, to conduct legal proceedings in a way that protects
the secrecy and security of the computer and related items to prevent a
possible recurrence of the violation or a similar act by another person
and to protect trade secrets. 

Sec. 46.009.  NOTICE TO ATTORNEY GENERAL.  (a) Requires a person who
brings action under Section 46.008 (Civil Liability) to notify the
attorney general with a copy of the petition by registered or certified
mail not later than 30th day after the petition was filed and at least ten
days before the hearing date. 

(b) Authorizes the attorney general to intervene in the action by filing a
notice of intervention and serving each party with a copy of the notice. 

(c) Provides that a person who violates Subsection (a) is liable to the
state for a civil penalty not to exceed $200 per violation.  Authorizes
the attorney general to bring suit to recover the civil penalty. 

Sec. 46.010.  BLOCKING OF COMMERCIAL ELECTRONIC MAIL MESSAGE. Authorizes
an electronic mail service provider on its own initiative to block the
receipt or transmission through its service any commercial electronic mail
message it reasonably believes will be sent in violation of this chapter
if the provider performs certain actions. 

Sec. 46.011.  QUALIFIED IMMUNITY.  (a) Defines "telecommunications
utility." 

 (b) Prohibits a telecommunications utility or an electronic mail service
provider from being held liable under Section 46.002 or 46.003 and
provides that a telecommunications utility or an electronic mail service
provider is not subject to the penalties provided under this chapter. 

(c) Provides that a person injured by a violation of this chapter does not
have cause of action against a telecommunications utility or an electronic
mail service provider under this chapter solely under certain
circumstances. 

(d) Prohibits an electronic mail service provider that provides for a
dispute resolution process as described by Section 46.010 from being held
liable for blocking the receipt or transmission through its service of any
commercial electronic mail message that the provider believes is or will
be sent in violation of this chapter. 

(e) Prohibits a person from being held liable under this chapter for a
commercial electronic mail message that is sent as a result of an error or
accidental transmission. 

(f) Prohibits a sender from being held liable for the transmission of an
electronic mail message that violates this chapter under certain
circumstances. 

SECTION 2.  Effective date: September 1, 2003.
            Makes application of this Act prospective.