00 CS FOR HOUSE BILL NO. 36(L&C) 01 "An Act relating to unlawful electronic mail activities and making certain electronic 02 mail activities unfair methods of competition or unfair or deceptive acts or practices 03 under the state's unfair trade practices and consumer protection laws; and providing for 04 an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 45.45 is amended by adding new sections to read: 07 Article 10A. Electronic Mail Activities. 08 Sec. 45.45.800. Telephone number or address required. A person who 09 does business in this state may not send or cause to be sent in the course of the 10 person's business an unsolicited electronic mail advertisement unless the business 11 person establishes a local or toll-free telephone number for the business person or a 12 valid electronic mail return address operated by the business person that the recipient 13 of the unsolicited electronic mail advertisement may use to notify the business person 14 not to send further unsolicited electronic mail advertisements. 01 Sec. 45.45.810. Statement required. A person who does business in this 02 state may not send or cause to be sent in the course of the person's business an 03 unsolicited electronic mail advertisement unless the advertisement includes a 04 statement informing the recipient of a local or toll-free telephone number for the 05 business person or a valid electronic mail return address operated by the business 06 person that the recipient may use to notify the business person not to send further 07 unsolicited electronic mail advertisements to the electronic mail address specified by 08 the recipient. The statement must appear at or before the end of the advertisement and 09 must be at least the same size as the majority of the text of the advertisement or be 10 fairly readable. 11 Sec. 45.45.820. Mailing prohibited after notification. (a) After receiving a 12 request that the business person not send further unsolicited electronic mail 13 advertisements, a person who does business in this state may not send or cause to be 14 sent in the course of the person's business an unsolicited electronic mail advertisement 15 to the requestor, and may not share the requestor's electronic mail address with another 16 person, except to arrange for the removal of the address from an electronic mail 17 address list. 18 (b) The request described in (a) of this section may be made by an employer 19 who is the registered owner of more than one electronic mail address on behalf of the 20 employer's employees who use the addresses. 21 Sec. 45.45.830. Use of electronic mail service providers. (a) A registered 22 user of an electronic mail service provider may not use, or cause to be used, the 23 provider's equipment located in this state in violation of the provider's policy 24 prohibiting or restricting the use of the provider's equipment to initiate unsolicited 25 electronic mail advertisements. 26 (b) A person may not use, or cause to be used, to initiate an unsolicited 27 electronic mail advertisement, an electronic mail service provider's equipment located 28 in this state in violation of the provider's policy prohibiting or restricting the use of the 29 provider's equipment for the delivery of unsolicited electronic mail advertisements to 30 the provider's registered users. 31 (c) Notwithstanding (a) and (b) of this section, an electronic mail service 01 provider is not required to establish a policy prohibiting or restricting the use of the 02 provider's equipment to initiate or deliver unsolicited electronic mail advertisements. 03 Sec. 45.45.840. Limitations on electronic mail. (a) A person may not 04 initiate the transmission of an unsolicited electronic mail advertisement if the 05 transmission 06 (1) uses a third party's Internet domain name without the permission of 07 the third party; 08 (2) misrepresents or obscures information that identifies the point of 09 origin or the transmission path of the advertisement; or 10 (3) contains false or clearly misleading information in the subject line. 11 (b) An intervening interactive computer service does not violate (a) of this 12 section by handling or retransmitting the message initiated by a sender. 13 (c) In this section, 14 (1) "electronic mail address" means a destination, commonly 15 expressed as a string of characters, to which electronic mail may be sent; 16 (2) "Internet domain name" means a globally unique hierarchical 17 reference 18 (A) to an Internet host or service; 19 (B) that is assigned through a centralized Internet naming 20 authority; and 21 (C) that is made up of a series of character strings separated by 22 periods. 23 Sec. 45.45.850. Violations. A violation of AS 45.45.800 - 45.45.890 is an 24 unfair method of competition and an unfair or deceptive act or practice under 25 AS 45.50.471 - 45.50.561. A remedy provided under AS 45.50.471 - 45.50.561 is in 26 addition to other remedies available to a person under law, including common law. 27 Sec. 45.45.860. Limitation on actions. Notwithstanding AS 45.50.531 and 28 45.50.535, a person may not bring an action in court under AS 45.50.471 - 45.50.561 29 for a violation of AS 45.45.800 - 45.45.890 unless the person is the state, a recipient of 30 an unsolicited electronic mail advertisement prohibited by AS 45.45.800 - 45.45.890, 31 or an electronic mail service provider whose registered user has either received or sent 01 an unsolicited electronic mail advertisement prohibited by AS 45.45.800 - 45.45.890. 02 In this section, "recipient" includes a business whose employee receives the 03 advertisement in the course of the employment. 04 Sec. 45.45.870. Application limits. (a) AS 45.45.800 - 45.45.890 do not 05 apply unless a person initiates the sending of an unsolicited electronic mail 06 advertisement to a resident of this state by using any of an electronic mail service 07 provider's service or equipment located in this state. 08 (b) AS 45.45.800 - 45.45.890 may not be construed to limit or restrict 09 (1) the rights of an electronic mail service provider under 47 U.S.C. 10 230(c)(1); 11 (2) a decision of an electronic mail service provider to permit or to 12 restrict access to or the use of the provider's system; or 13 (3) an exercise of the editorial function of an electronic mail service 14 provider. 15 (c) AS 45.45.800 - 45.45.890 do not apply to an act of a nonprofit person or to 16 an act that is political rather than commercial in nature. In this subsection, "nonprofit 17 person" means a person who qualifies for an exemption from taxation under 26 U.S.C. 18 501(c). 19 Sec. 45.45.890. Definitions. In AS 45.45.800 - 45.45.890, 20 (1) "electronic mail advertisement" means an electronic mail message 21 if the principal purpose of the message is to promote, directly or indirectly, the sale, 22 lease, rental, gift offer, or other disposition of real property, goods, or services, 23 including the extension of credit to the recipient of the message, but does not include 24 an advertisement attached to an electronic mail message by an electronic mail service 25 provider in exchange for free use of an electronic mail account if the sender has agreed 26 to this arrangement; 27 (2) "electronic mail service provider" means a person who 28 (A) does business in this state by providing other persons with 29 the ability to send or receive electronic mail through equipment located in this 30 state; and 31 (B) is an intermediary in sending or receiving electronic mail; 01 (3) "initiate" means to take action as the initial sender of an unsolicited 02 electronic mail advertisement to send the advertisement, but does not include the 03 action of an intervening electronic mail service provider who handles or retransmits 04 the advertisement; 05 (4) "registered user" means a person who maintains an electronic mail 06 address with an electronic mail service provider; 07 (5) "unsolicited electronic mail advertisement" means an electronic 08 mail advertisement that is addressed to a recipient with whom the person who initiates 09 the advertisement does not have an existing business or personal relationship, unless 10 the advertisement is sent at the request of or with the express consent of the recipient. 11 * Sec. 2. AS 45.45.870(a) is repealed and reenacted to read: 12 (a) AS 45.45.800 - 45.45.890 do not apply unless a person initiates the 13 sending of an unsolicited electronic mail advertisement 14 (1) from a computer located in the state; or 15 (2) to an electronic mail address if the person 16 (A) knows the address is held by a recipient in this state; or 17 (B) is aware of a fact that makes fairly apparent that the address 18 is held by a recipient in this state. 19 * Sec. 3. AS 45.50.471(b) is amended by adding a new paragraph to read: 20 (45) violating AS 45.45.800 - 45.45.890 (electronic mail activities). 21 * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to 22 read: 23 CONTINGENT EFFECT OF SECTION 2. Section 2 of this Act takes effect only if a 24 court of competent jurisdiction whose decisions are binding in this state enters a final 25 judgment that the application of AS 45.45.870(a), as enacted by sec. 1 of this Act, to a person 26 who sends a commercial electronic mail advertisement from outside the state into the state is 27 unconstitutional. 28 * Sec. 5. If, under sec. 4 of this Act, sec. 2 of this Act takes effect, it takes effect on the day 29 after the last day on which the judgment described in sec. 4 of this Act could have been 30 appealed, including appeal by writ of certiorari.