Spam Wars: Making Spam Illegal in Utah
Much like the woman in the famous Monty Python skit, I don't like spam. Unlike her, I'm talking about the almost unstoppable flow of unsolicited email messages advertising new mortgages, "male enhancement" pills, online gaming and a host of other shady operations. This also includes spam from political parties and activists that don't seem to be able to respect opt-out requests or even acknowledge that by not having an opt-in mechanism, it violates the ToS/AUP for every Internet provider and mailing service.
There are existing federal laws governing unsolicited commercial email (also called UCE), but it requires expensive filings in federal court and lets non-commercial spam keep on flowing. For these reasons, spam is something that also needs to be addressed at the state level. Utah is one of the few states that no longer has an anti-spam law on the books, having repealed it in 2004. Well, I decided that it's time to get tough on spam again, so I grabbed the law and tweaked it to cover unsolicited bulk email (UBE).
This chapter is known as the "Unsolicited Commercial and Bulk Email Act."
As used in this chapter:
(1) "Commercial" means for the purpose of promoting the sale, lease, or exchange of goods, services, or real property.
(2) "Bulk" means not of a personal nature and/or not personally addressed to an individual or group of individuals.
(3) "Computer network" means two or more computers that are interconnected to exchange electronic messages, files, data, or other information.
(4) "Email" means an electronic message, file, data, or other information that is transmitted:
(a) between two or more computers, computer networks, or electronic terminals; or
(b) within a computer network.
(5) "Email address" means a destination, commonly expressed as a string of characters, to which e-mail may be sent or delivered.
(6) "Email service provider" means a person that:
(a) Is an intermediary in the transmission of email from the sender to the recipient; or
(b) Provides to end users of email service the ability to send and receive email.
(7) "Internet domain name" means a globally unique, hierarchal reference to an Internet host or service, assigned through centralized Internet authorities, comprising a series of character strings separated by periods, with the right-most string specifying the top of the hierarchy.
(8) "Unsolicited" means without the recipient's express permission, except as provided in Subsection (8)(a).
(a) A commercial or bulk email is not "unsolicited" if the sender has a preexisting business or personal relationship with the recipient.
13-45-103. Unsolicited commercial or bulk email — Requirements.
(1) Each person who sends or causes to be sent an unsolicited commercial email or an unsolicited bulk email through the intermediary of an email service provider located in the state or to an email address held by a resident of the state shall:
(a) Conspicuously state in the email the sender's:
(i) Legal name;
(ii) Correct street address; and
(iii) Valid Internet domain name;
(b) Provide for the recipient a convenient, no-cost mechanism to notify the sender not to send any future email to the recipient including:
(i) Return email to a valid, functioning return electronic address; and
(ii) A link to remove the recipient's email address from future mailings.
(2) A person who sends or causes to be sent an unsolicited commercial email or an unsolicited bulk email through the intermediary of an email service provider located in the state or to an email address held by a resident of the state may not:
(a) Use a third party's Internet domain name in identifying the point of origin or in stating the transmission path of the email without the third party's consent;
(b) Misrepresent any information in identifying the point of origin or the transmission path of the email; or
(c) Fail to include in the email the information necessary to identify the point of origin of the email.
(3) If the recipient of an unsolicited commercial email or an unsolicited bulk email notifies the sender that the recipient does not want to receive future commercial email or future bulk email, respectively, from the sender, the sender may not send that recipient a commercial email or a bulk email, as the case may be, either directly or through a subsidiary or affiliate.
13-45-104. Civil action for violation — Election on damages — Costs and attorney fees — Defense.
(1) For any violation of a provision of Section 13-45-103, an action may be brought by:
(a) A person who received the unsolicited commercial email or unsolicited bulk email with respect to which the violation under Section 13-45-103 occurred; or
(b) An email service provider through whose facilities the unsolicited commercial email or unsolicited bulk email was transmitted.
(2) In each action under Subsection (1):
(a) A recipient or email service provider may:
(i) Recover actual damages; or
(ii) Elect, in lieu of actual damages, to recover the lesser of:
(A) $500 per unsolicited commercial email or unsolicited bulk email; or
(B) $25,000 per day that the violation occurs; and
(b) Each prevailing recipient or email service provider shall be awarded costs and reasonable attorney fees.
(3) An email service provider does not violate Section 13-45-103 solely by being an intermediary between the sender and recipient in the transmission or an email that violates that section.
(4) The violation of Section 13-45-103 by an employee does not subject the employee's employer to liability under that section if the employee's violation of Section 13-45-103 is also a violation of an established policy of the employer that requires compliance with the requirements of Section 13-45-103.
(5) It is a defense to an action brought under this section that the unsolicited commercial email or unsolicited bulk email was transmitted accidentally.
I'd appreciate any feedback on changes that you think this kind of law would need. Once I have it completed, I'm going to send a copy of it to each of our state senators and representatives to see if anyone is willing to sponsor it.