Legislature(2003 - 2004)
04/04/2003 01:38 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 82-LIMITATIONS ON COMMERCIAL ELECTRONIC MAIL
CHAIR SEEKINS announced HB 82 to be up for consideration.
REPRESENTATIVE KEVIN MEYER, sponsor of HB 82, said this
legislation prohibits individuals from sending unsolicited e-
mails that contain sexually explicit material without having
"ADV:ADLT" in the subject heading. At least nine other states
have the same requirement and twenty others have pending
legislation. This will allow anyone to check e-mail headings so
that objectionable messages could be deleted, which will aid in
setting up filter systems on computers.
SENATOR THERRIAULT asked what ADV meant.
REPRESENTATIVE MEYER said it means advertisement.
SENATOR OGAN asked what the penalty is.
MR. ED SNIFFEN, Assistant Attorney General, answered that the
fine for violating any law in this section of statute is $5,000
per violation and each e-mail will be a separate violation.
Department of Law doesn't have the authority to just send out a
letter so they would have to file a suit and have the court
determine the amount of the fine from $2,000 to $5,000.
SENATOR OGAN asked if this is a civil matter, not a crime.
MR. SNIFFEN replied that is correct.
SENATOR OGAN asked why they didn't make it a crime.
MR. SNIFFEN responded they could.
REPRESENTATIVE MEYER said they will certainly consider it from
the criminal side.
SENATOR THERRIAULT pointed out that would change the fiscal
note.
REPRESENTATIVE MEYER agreed and said that was why they chose
this route for now, because it doesn't have any cost to the
state.
CHAIR SEEKINS asked if this would pertain to e-mail that is sent
from the State of Alaska and asked how e-mail is regulated that
is sent from other places.
REPRESENTATIVE MEYER explained that this law will pertain to
anything that originates within the United States, but if it
originates outside the country, there would be no jurisdiction.
CHAIR SEEKINS asked how a person in another state will know of
restrictions in Alaska.
REPRESENTATIVE MEYER explained that anyone in the commercial
business of selling things like this has an obligation to know
what the laws of the state are. Alaska's law will be similar to
a lot of other states so there should be no excuse for
ignorance.
CHAIR SEEKINS asked how they would know that a particular e-mail
address came from Alaska.
REPRESENTATIVE MEYER said most carriers in Alaska have the word
"Alaska" in their addresses. The burden will be on the business
to know the law.
SENATOR ELLIS arrived at 1:49 p.m.
SENATOR OGAN said language in the bill pertains only to e-mail
mailed from a computer located in this state to an address the
sender knows is held by a resident of this state. He asked if
there was a definition of "resident of this state."
MR. SNIFFEN replied they know that a group of e-mail addresses
such as gcialaska.net and ptialaska.net are from Alaska.
Addresses such as Hotmail and Yahoo are more generic and there
is no way a sender could identify where those originated. This
legislation likely will not reach those addresses. The bill
states if you are sending these types of e-mails from an Alaskan
computer, you must put this header in the message. He didn't
know that there were that many pornographic sites in Alaska, but
the more important part of the bill is if someone else outside
of Alaska is sending pornographic e-mail to someone inside
Alaska, this information must be in the header.
SENATOR ELLIS said he supports the bill and assumes that a
definition in statute of "sexually explicit" would not preclude
showing bare breasts in an e-mail about breast-feeding and
cancer.
REPRESENTATIVE MEYER said they are not trying to ban subjects
like that. A definition of sexually explicit material is in AS
11.41.455. Breast-feeding is not listed, neither is bare breast.
SENATOR OGAN added that sexual material in another law provides,
"be on, be viewed, purchased, rented, leased or held by an
individual who is 18 years or older."
SENATOR ELLIS asked whether breast-feeding sites would need to
put an adult disclaimer on their e-mails.
REPRESENTATIVE MEYER replied he didn't think so, because this
bill only pertains to commercial e-mails.
SENATOR ELLIS said that the commercial aspect probably deals
with his concern, but he wants members to be mindful that many
non-profits and non-commercial interests sell breast pumps and
other things on their websites to generate funds for their
organizations. He added, "There is a blurring on the Internet
now between commercial and non-commercial enterprises."
SENATOR THERRIAULT asked for clarification of the trigger
mechanism on the fine.
REPRESENTATIVE MEYER explained that the individual could take
action directly or go through the AG's office.
MR. SNIFFEN added if an individual were to pursue a claim
because the header was missing, damages would be limited to $500
or three times the amount of actual proven damages. The $5,000
penalty would come into play if the state brought an enforcement
action against a violator. They could get restitution for the
consumers at $500 per individual and ask for $5,000 per
violation for penalties to the state.
SENATOR OGAN asked if one person called with a complaint,
whether the AG's office could trace the number of e-mails that
were sent to people in Alaska.
MR. SNIFFEN said the search techniques are getting better in
terms of locating the origin or e-mails and the department has
fairly broad authority under the state's consumer protection act
to issue subpoenas for information and take statements from
witnesses.
SENATOR OGAN asked if this action could be a strict violation
instead of a misdemeanor with a set fine. He was concerned about
how much energy it would take for the layperson to pursue the
issue on his or her own.
MR. SNIFFEN said he thought the legislation pertained more to
the state's enforcement effort than a private individual's. As
for making it a criminal penalty, it is already a class B felony
to violate the Telephone Solicitation Act. The fact that he's
unaware of anyone who has gone to jail for that in the last
three years indicates that the penalty is quite a deterrent.
3:05 p.m.
SENATOR ELLIS said a constituent mentioned that offensive e-
mails seemed to increase when she signed up for a blocking
system. Another constituent mentioned that in the beginning,
they had to actually go to the cookie that would trigger
offensive types of advertisements.
Although there seems to be a legal requirement that all e-mails
have a link to click to unsubscribe from the mailing list,
constituents tell him that clicking that link just confirms that
your e-mail address is valid. He asked Representative Meyer if
he is aware of that or considered any legal penalty for trick
links.
REPRESENTATIVE MEYER replied he is aware, and when the bill
first started out it was broader. He said he's on everyone's
list - weight loss, hair loss, Viagra, everything - and he wants
to get rid of it all, but he ran into freedom of speech
problems. Basically, you can get the same information via e-mail
that you can in your mailbox and you can't hold e-mail to a
higher standard. He focused on the age-sensitive material,
because you can't receive it in the regular mail or go to the
bookstore and buy it.
SENATOR ELLIS said he and Representative Gara ran into the same
concerns and asked if they could work together on the issue. He
said there might be a compelling case in the future on a
commercial enterprise for consumer protection. The phony link to
unsubscribe is of interest and he thought if it isn't handled at
the federal level, the states will take the lead.
REPRESENTATIVE MEYER said he would work with them.
SENATOR THERRIAULT made a motion to pass CSHB 82(L&C) out of
committee with individual recommendations and attached fiscal
notes. There was no objection and it was so ordered.
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