The John Marshall Law School
Alaska State 20th Legislature
1997-1998
House Bill 491
Introduced May 11, 1998
Referred to Committee on Judiciary
[status report]
HOUSE BILL NO. 491
"An Act relating to unwanted electronic mail and facsimile transmissions; relating to computer crimes; and providing for an effective date."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:
* Section 1. AS 45.63 is amended by adding new sections to read:
Article 2. Electronic Advertising.Sec. 45.63.110. Liability of advertisers and electronic mail service providers for electronic mail advertisements.
(a) Except as provided in (d) and (e) of this section, if a person transmits or causes to be transmitted to a recipient an item of electronic mail that includes an advertisement, the advertiser is liable to the recipient for civil damages unless
(1) the advertiser has a preexisting business or personal relationship with the recipient;
(2) the recipient has expressly consented to receive the item of electronic mail from the advertiser; or
(3) the advertisement is readily identifiable as promotional or states that it is an advertisement and clearly and conspicuously provides
(A) the legal name, complete street address, and electronic mail address of the person transmitting the electronic mail;
(B) a notice that the recipient may decline to receive additional electronic mail that includes an advertisement from the person transmitting the electronic mail; and
(C) the procedures for declining the additional electronic mail advertisements.(b) If an advertiser is liable to a recipient under (a) of this section, the recipient may recover from the advertiser actual damages or damages in the amount of $10 for each item of electronic mail received, whichever is greater, and costs and attorney fees as provided in court rules.
(c) In addition to any other recovery that is allowed under (b) of this section, the recipient may apply to the superior court for an order enjoining the advertiser from transmitting to the recipient any other item of electronic mail that includes an advertisement.
(d) Except for an advertisement prepared or caused to be prepared by the electronic mail service provider itself, a provider is immune from liability for civil damages under this section for the transmission of an advertisement.
(e) This section does not apply to an item of electronic mail that a recipient obtains voluntarily, including an item of electronic mail that a recipient obtains from an electronic bulletin board.
Sec. 45.63.120. Provider's restriction on use of electronic mail service.
(a) A registered user of an electronic mail service may not use or cause to be used the provider's service or equipment in violation of the provider's published policy prohibiting or restricting the use of its service or equipment for the initiation of unsolicited advertisements.
(b) A person may not, by initiating an unsolicited advertisement, use or cause to be used the service or equipment of an electronic mail service provider in violation of the provider's published policy prohibiting or restricting the use of its service or equipment to deliver unsolicited advertisements.
(c) This section may not be interpreted to require an electronic mail service provider to adopt a policy prohibiting or restricting the use of its service or equipment for the initiation or delivery of unsolicited advertisements.
(d) An electronic mail service provider is considered to have published the provider's policy on unsolicited advertisements if the provider
(1) makes the policy available on request in written form at no charge to the requester; or
(2) displays the policy through an on-line notice on the provider's Internet home page or on a page accessible through a conspicuous link on the provider's Internet home page.(e) A person who violates an electronic mail service provider's published policy on unsolicited advertisements as provided in this section is liable to the provider for the greater of
(1) the actual monetary loss suffered by the provider by reason of the violation; or
(2) $50 for each electronic mail message initiated or delivered in violation of this section up to a maximum of $15,000 a day.Sec. 45.63.130. Civil liability for computer crimes.
(a) In addition to any other civil remedy available, the owner or lessee of the computer, computer system, computer network, computer program, or data may bring a civil action against a person convicted of a computer crime for compensatory damages, including any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer, computer system, computer network, computer program, or data was or was not altered, damaged, or deleted by the access.
(b) For purposes of an action authorized by AS 45.63.110 - 45.63.200, a parent or legal guardian of an unemancipated minor may be held liable for damages caused by the minor in accordance with AS 34.50.020.
(c) A postsecondary educational institution in the state shall include computer crimes as a specific violation of the institution's student conduct policies and regulations that may subject the student to disciplinary sanctions up to and including dismissal from the institution. This subsection does not apply to the University of Alaska unless the Board of Regents adopts a resolution to that effect.
(d) For purposes of bringing a civil action under AS 45.63.110 - 45.63.200, a person who causes, by any means, the access of a computer, computer system, or computer network in one jurisdiction from another jurisdiction is considered to have personally accessed the computer, computer system, or computer network in each jurisdiction.
Sec. 45.63.200. In AS 45.63.110 - 45.63.200,
(1) "advertisement" means an electronic mail message, the principal purpose of which is to promote, directly or indirectly, the sale or other distribution of real property, goods, or services;
(2) "advertiser" means a person who transmits or causes to be transmitted to a recipient an item of electronic mail that includes an advertisement;
(3) "computer crime" means an offense that was committed by the use of a computer, computer system, or computer network, or that damaged or impaired the use of a computer, computer system, or computer network;
(4) "electronic mail" means a message, a file, or other information that is transmitted through a local, regional, or global network, regardless of whether the message, file, or other information is
(A) viewed;
(B) stored for retrieval at a later time;
(C) printed onto paper or other similar material; or
(D) filtered or screened by a computer program that is designed or intended to filter or screen items of electronic mail;
(5) "electronic mail service provider" or "provider" means a business or organization qualified to do business in the state that provides registered users with the ability to send or receive electronic mail;
(6) "initiation" of an unsolicited advertisement refers to the action by the initial sender of the advertisement; it does not refer to the actions of any intervening electronic mail service providers that may handle or retransmit the electronic message;
(7) "network" means a network comprised of one or more computers that may be accessed by a modem, electronic or optical technology, or other similar means;
(8) "recipient" means a person who receives an item of electronic mail;
(9) "registered user" means an individual, corporation, or other person that maintains an electronic mail address with an electronic mail service provider;
(10) "unsolicited advertisement" means an electronic mail advertisement that is
(A) addressed to a recipient with whom the initiator does not have an existing business or personal relationship; and
(B) not sent at the request of or with the express consent of the recipient.* Sec. 2. AS 11.46.200(a) is amended to read:
(a) A person commits theft of services if
(1) the person obtains services, known by that person to be available only for compensation, by deception, force, threat, or other means to avoid payment for the services;
(2) having control over the disposition of services of others to which the person is not entitled, the person knowingly diverts those services to the person's own benefit or to the benefit of another not entitled to them; or
(3) the person obtains the use of computer time, a computer system, a computer program, a computer network, or any part of a computer system or network, with reckless disregard that the use by that person is unauthorized or exceeds the scope of the person's authorization.* Sec. 3. AS 11.46.200 is amended by adding a new subsection to read:
(d) It is an affirmative defense to a prosecution under (a)(3) of this section that the defendant, at the time of the offense, was an employee who accessed or used the computer system, computer program, computer network, or data of the person's employer when the person was acting outside the scope of the employee's lawful employment provided the employee's activities did not cause an injury to the employer or to another, or so long as the value of supplies and computer service used did not exceed an accumulated total of $100.
* Sec. 4. AS 11.46.482(a) is amended to read:
(a) A person commits the crime of criminal mischief in the second degree if, having no right to do so or any reasonable ground to believe the person has such a right,
(1) with intent to damage property of another, the person damages property of another in an amount of $500 or more;
(2) the person tampers with an oil or gas pipeline or supporting facility or an airplane or helicopter with reckless disregard for the risk of harm to or loss of the property; [OR]
(3) the person recklessly creates a risk of damage in an amount exceeding $100,000 to property of another by the use of widely dangerous means; or
(4) [REPEALED]
(5) [REPEALED]
(6) the person violates AS 11.46.484(a)(8) and the person has, in the 10 years immediately preceding the violation, been convicted of a violation of AS 11.46.484(a)(8) or a similar law or ordinance of another jurisdiction.* Sec. 5. AS 11.46.484(a) is amended to read:
(a) A person commits the crime of criminal mischief in the third degree if, having no right to do so or any reasonable ground to believe the person has such a right
(1) with intent to damage property of another, the person damages property of another in an amount of $50 or more but less than $500;
(2) [REPEALED]
(3) [REPEALED]
(4) the person tampers with a fire protection device in a building that is a public place;
(5) the person knowingly accesses a computer, computer system, computer program, computer network, or part of a computer system or network;
(6) the person uses a device to descramble an electronic signal that has been scrambled to prevent unauthorized receipt or viewing of the signal unless the device is used only to descramble signals received directly from a satellite or unless the person owned the device before September 18, 1984; [OR]
(7) the person knowingly removes, relocates, defaces, alters, obscures, shoots at, destroys, or otherwise tampers with an official traffic control device or damages the work upon a highway under construction; or
(8) the person uses the Internet domain name of another person in connection with the sending of one or more electronic mail messages causes the disruption or denial of computer services to an authorized user of the computer, computer system, or computer network.* Sec. 6. AS 11.46.740 is amended to read:
Sec. 11.46.740. Criminal use of computer in the first degree.
(a) A person commits the offense of criminal use of a computer in the first degree if, having no right to do so or any reasonable ground to believe the person has such a right, or otherwise in excess of the person's valid limited right to do so, the person knowingly accesses or causes to be accessed a computer, computer system, computer program, computer network, or any part of a computer system or network, and, as a result of that access,
(1) obtains information concerning a person; [OR]
(2) introduces false information into a computer, computer system, or computer network with the intent to damage or enhance the data record of a person ; or
(3) knowingly introduces a computer contaminant into the computer, computer system, or computer network.(b) Criminal use of a computer in the first degree is a class C felony.
* Sec. 7. AS 11.46.990 is amended by adding new paragraphs to read:
(14) "computer contaminant"
(A) means a set of computer instructions that are designed to modify, damage, destroy, record, or transmit data within a computer, computer system, or computer network without the intent or permission of the owner of the information;
(B) includes a group of computer instructions commonly called viruses or worms, which are self-replicating or self-propagating and are designed to contaminate other computer programs or computer data, consume computer resources, modify, damage, destroy, record, or transmit data, or in some other fashion usurp the normal operation of the computer, computer system, or computer network;
(15) "electronic mail" has the meaning given in AS 45.63.200;
(16) "Internet domain name" means 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 rightmost character string specifying the top of the hierarchy.* Sec. 8. INSTRUCTION TO THE REVISOR OF STATUTES.
(a) In AS 45.63.010(b), 45.63.050, 45.63.070, 45.63.080, 45.63.090, and 45.63.100, the revisor of statutes shall replace the phrase "this chapter" with "AS 45.63.010 - 45.63.100."
(b) The legislature does not intend the enactment of sec. 1 of this Act to amend the reference to AS 44.63 in AS 45.50.471(b)(35).
* Sec. 9. This Act takes effect immediately under AS 01.10.070(c).