H 5147 General Bill, By J.E. Smith
 A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 10
 TO TITLE 58 SO AS TO ENACT THE SOUTH CAROLINA SPAM CONTROL ACT, PROVIDING FOR
 PROTECTION FROM FRAUDULENT TRANSMISSION AND ROUTING OF ELECTRONIC MAIL BY
 ESTABLISHING FELONIES FOR THE FALSIFICATION OF INFORMATION AS TO ORIGIN,
 HEADER, REGISTRATION OF DOMAIN NAMES, AND RIGHT TO USE PROTOCOL ADDRESSES, TO
 PROVIDE FOR INCREASED CRIMINAL PENALTIES FOR THE COMMISSION OF THOSE FELONIES
 IN AN AGGRAVATED MANNER AND TO DESCRIBE THE AGGRAVATING FACTORS, TO PROVIDE
 FOR INCREASED PENALTIES FOR VIOLATIONS IN CONNECTION WITH THE COMMISSION OF A
 FELONY, AND TO PROVIDE FOR FORFEITURE OF REAL OR PERSONAL PROPERTY USED IN
 CONNECTION WITH VIOLATIONS OF THE CHAPTER, TO PROVIDE FOR CIVIL REMEDIES IN AN
 ACTION TO BE BROUGHT BY THE ATTORNEY GENERAL OR AN INTERNET SERVICE PROVIDER,
 INCLUDING DAMAGES, INJUNCTIVE RELIEF, AND CIVIL FINES, AND TO PROVIDE FOR
 PERSONAL JURISDICTION IN THIS STATE AND INVESTIGATIVE AUTHORITY IN THE
 ATTORNEY GENERAL AND THE JUDICIAL CIRCUIT SOLICITORS; AND TO AMEND SECTION
 16-16-20, AS AMENDED, RELATING TO COMPUTER CRIMES AND PENALTIES, SO AS TO
 REFERENCE THE REQUIREMENTS OF THIS CHAPTER AND TO PROVIDE FOR THE CRIME OF THE
 FALSIFICATION OF INFORMATION IN CONNECTION WITH A COMMERCIAL ELECTRONIC
 MESSAGE TRANSMISSION.

   04/20/04  House  Introduced and read first time HJ-4
   04/20/04  House  Referred to Committee on Judiciary HJ-5

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 10 TO TITLE 58 SO AS TO ENACT THE SOUTH CAROLINA SPAM CONTROL ACT, PROVIDING FOR PROTECTION FROM FRAUDULENT TRANSMISSION AND ROUTING OF ELECTRONIC MAIL BY ESTABLISHING FELONIES FOR THE FALSIFICATION OF INFORMATION AS TO ORIGIN, HEADER, REGISTRATION OF DOMAIN NAMES, AND RIGHT TO USE PROTOCOL ADDRESSES, TO PROVIDE FOR INCREASED CRIMINAL PENALTIES FOR THE COMMISSION OF THOSE FELONIES IN AN AGGRAVATED MANNER AND TO DESCRIBE THE AGGRAVATING FACTORS, TO PROVIDE FOR INCREASED PENALTIES FOR VIOLATIONS IN CONNECTION WITH THE COMMISSION OF A FELONY, AND TO PROVIDE FOR FORFEITURE OF REAL OR PERSONAL PROPERTY USED IN CONNECTION WITH VIOLATIONS OF THE CHAPTER, TO PROVIDE FOR CIVIL REMEDIES IN AN ACTION TO BE BROUGHT BY THE ATTORNEY GENERAL OR AN INTERNET SERVICE PROVIDER, INCLUDING DAMAGES, INJUNCTIVE RELIEF, AND CIVIL FINES, AND TO PROVIDE FOR PERSONAL JURISDICTION IN THIS STATE AND INVESTIGATIVE AUTHORITY IN THE ATTORNEY GENERAL AND THE JUDICIAL CIRCUIT SOLICITORS; AND TO AMEND SECTION 16-16-20, AS AMENDED, RELATING TO COMPUTER CRIMES AND PENALTIES, SO AS TO REFERENCE THE REQUIREMENTS OF THIS CHAPTER AND TO PROVIDE FOR THE CRIME OF THE FALSIFICATION OF INFORMATION IN CONNECTION WITH A COMMERCIAL ELECTRONIC MESSAGE TRANSMISSION.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    The General Assembly finds that:

(1)    Unsolicited commercial electronic mail messages, also referred to as "spam", provide a means to reach large numbers of recipients at very little cost to the sender;

(2)    Recent surveys report that almost two-thirds of the billions of pieces of "spam" sent each week contain falsified e-mail header or subject line information, and "spammers" increasingly rely on falsification and computer hacking techniques to hide their e-mail and get it through to consumers;

(3)    The transmission of billions of pieces of "spam" by these high-volume commercial senders ("spammers") which are intended to deceive or mislead recipients or to offend or invade the privacy of recipients has grown into a costly problem for Internet Service Providers (ISPs), businesses, and consumers, reportedly costing businesses and consumers ten billion dollars a year;

(4)    Consumers receiving "spam" not only pay increased costs passed along by ISPs and businesses for handling or sorting through "spam", but also spend large amounts of their own time deleting "spam" on their personal home computers;

(5)    In response to the increasingly costly problems caused by "spam" for businesses and consumers, more than half of the states have enacted laws to impose a variety of penalties on the irresponsible use of "spam"; in addition, the Federal Trade Commission has initiated major administrative actions pursuant to existing consumer protection laws to prosecute "spammers" who engage in deceptive and fraudulent practices; yet "spammers" are undeterred by and routinely flout these federal and state civil enforcement mechanisms;

(6)    Criminal prohibitions are an important new tool to address the hacking and falsification techniques of these outlaw "spammers", and it is in the public interest for this State to enact its own law to prohibit "spam" sent using falsification or hacking techniques, both to deter deceptive and fraudulent practices by "spammers" and to reduce costs to businesses and consumers; and

(7)    "Spam" that is sent using falsification or hacking techniques is inherently deceptive and misleading and, therefore, falls outside of the protections that the First Amendment ordinarily affords to commercial speech.

SECTION    2.    Title 58 of the 1976 Code is amended by adding:

Section 58-10-10.    As used in this chapter:

(1)    'Commercial electronic mail message' means a message sent and received electronically and consisting of commercial advertising material with the primary purpose of promotion of a commercial product or service and includes, but is not limited to, the content on an Internet website or online site operated for a commercial purpose.

(2)    'Computer' means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes a data storage facility or communications facility directly related to or operating in conjunction with the device, but the term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.

(3)    'Computer network' or 'network' means any system or equipment that provides communications between one or more computer systems and input and output devices including, but not limited to, display terminals and printers connected by telecommunication facilities and including the Internet.

(4)    'Computer system' means a device or collection of devices, including support devices and excluding calculators that are not programmable and capable of being used in conjunction with external files, one or more of which contain computer programs, electronic instructions, input data and output data, that performs functions including, but not limited to, logic, arithmetic, data storage and retrieval, communication, and control.

(5)    'Damage' means an unauthorized use, access or impairment to the integrity or availability of data, a program, a system or information, that causes loss aggregating at least five dollars in value during any one-year period to one or more individuals, causes physical injury to a person, or threatens public health or safety.

(6)    'Domain name' means an alphanumeric designation that is registered with or assigned by a domain name registrar, domain name registry, or other domain name registration authority, and that is included in an electronic mail message.

(7)    'Felony' means an offense under the law of this State that is punishable by death or imprisonment for a term exceeding three years.

(8)    'Financial institution' means a state or federally chartered bank, savings bank, savings and loan association, or another financial services company or provider including, but not limited to, broker-dealers, investment companies, money market and mutual funds, credit unions, and insurers authorized to do business in this State.

(9)    'Header information' means the source, destination, routing information, or information authenticating the sender, associated with an electronic mail message including, but not limited to, the originating domain name, originating electronic mail address, information regarding any part of the route that an electronic mail message travels or appears to travel on the Internet or on an online service, or other authenticating information.

(10)    'Initiate the transmission' means to originate an electronic mail message or to procure the origination of the message, regardless of whether the message reaches its intended recipients, and does not include the actions of an Internet service provider used by another person for the transmission, routing, relaying, handling, or storing, through an automatic technical process, of an electronic mail message for which another person has provided and selected the recipient electronic mail addresses.

(11)    'Internet' means the international computer network of both federal nonfederal interoperable packet switched data networks.

(12)    'Internet protocol address' means the string of numbers by which locations on the Internet are identified by routers or other computers connected to the Internet.

(13)    'Internet service provider' means a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to users. The term does not include telecommunications services.

(14)    'Message' means each electronic mail message addressed to a separate addressee.

(15)    'Multiple' means more than ten electronic mail messages during a twenty-four-hour period, more than one hundred electronic mail messages during a thirty-day period, or more than one thousand electronic mail messages during a one-year period.

(16)    'Protected computer' means a computer exclusively for the use of state government or a financial institution or, in the case of a computer not exclusively for such use, used by or for a financial institution or state government and the conduct constituting the offense affects that use by or for the financial institution or state government; or a computer which is used in intrastate or interstate communication.

Section 58-10-20.    (A)    It is unlawful for a person, with regard to commercial e-mail sent from or to the facilities of an Internet service provider in this State, to knowingly:

(1)    use a protected computer to relay or retransmit multiple commercial electronic mail messages with the intent to deceive or mislead recipients or an Internet service provider as to the origin of those messages;

(2)    falsify header information in multiple commercial electronic mail messages and intentionally initiate the transmission of those messages;

(3)    register, using information that falsifies the identity of the actual registrant, for five or more electronic mail accounts or online user accounts or two or more domain names, and intentionally initiate the transmission of multiple commercial electronic mail messages from a combination of those accounts or domain names; or

(4)    falsely represent the right to use five or more Internet protocol addresses, and intentionally initiate the transmission of multiple commercial electronic mail messages from those addresses, or conspires to do so.

(B)    A person who violates this section is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years, or both.

Section 58-10-30.    (A)    A person who violates Section 58-10-20 and commits one or more of the aggravating acts described in this section in connection with that violation is guilty of a felony and, upon conviction, must be fined not more than ten thousand dollars or imprisoned not more than ten years, or both.

(B)    The aggravating factors include:

(1)    the person knowingly registers, using information that falsifies the identity of the actual registrant, for twenty or more electronic mail accounts or online user accounts or ten or more domain names, and intentionally initiates the transmission of multiple commercial electronic mail messages from those accounts or domain names; or conspires to do so;

(2)    the volume of commercial electronic mail messages transmitted in furtherance of a violation of Section 58-10-20 exceeds two hundred fifty during any twenty-four-hour period, two thousand five hundred during any thirty-day period, or twenty-five thousand during any one-year period;

(3)    the person violating Section 58-10-20 causes loss to one or more persons aggregating five hundred dollars or more in value during any one-year period;

(4)    as a result of violating Section 58-10-20, the person committing the offense obtains anything of value aggregating five hundred dollars or more during any one-year period; or

(5)    a violation of Section 58-10-20 was undertaken by the defendant in concert with three or more other persons with respect to whom the defendant occupied a position of organizer or leader.

Section    58-10-40.        (A)    It is unlawful for a person, with regard to commercial e-mail sent from or to the facilities of an Internet service provider in this State, to knowingly access a protected computer without authorization and intentionally initiate the transmission of multiple commercial electronic mail messages from or through such computer.

(B)    A person who violates this section is guilty of a felony and, upon conviction, must be fined not more than ten thousand dollars or imprisoned not more than ten years, or both.

Section 58-10-50.    A person who violates Section 58-10-20, 58-10-30, or 58-10-40 in futherance of a felony, or who has been convicted previously of an offense under the laws of this State or another state or under federal law involving transmission of multiple commercial electronic mail messages or unauthorized access to a computer system, is guilty of a felony, and, upon conviction, must be fined not more than twenty-five thousand dollars or imprisoned not more than twenty-five years, or both.

Section 58-10-60.    A person who is convicted of an offense pursuant to Section 58-10-20, 58-10-30, 58-10-40, or 58-10-50 shall forfeit to the State:

(1)    property, real or personal, constituting or traceable to gross proceeds obtained from the offense; and

(2)    equipment, software, or other technology used or intended to be used to commit or to facilitate the commission of the offense.

Section 58-10-70.    (A)    The Attorney General, or a person engaged in the business of an Internet service provider offering Internet service to the public, aggrieved by reason of a violation of this chapter may commence a civil action against the violator in an appropriate court in this State for the relief provided in this section. An action must not be brought pursuant to this section unless the action is begun within two years of the date of the act which is the basis for the action.

(B)    In an action by the Attorney General, the court may award appropriate relief, including temporary, preliminary, or permanent injunctive relief. The court also may assess a civil penalty in an amount not exceeding twenty-five thousand dollars for each day of violation or not less than two dollars or more than eight dollars for each electronic mail message initiated in violation of this chapter as the court considers just.

(C)    In any other action brought pursuant to this section, the court may award appropriate relief, including temporary, preliminary, or permanent injunctive relief, and damages in an amount equal to the greater of:

(1)    the actual damages suffered by the Internet service provider as a result of the violation and receipts of the violator that are attributable to the violation and are not taken into account in computing actual damages; or

(2)    statutory damages in an amount not exceeding twenty-five thousand dollars for each violation or not less than two dollars or more than eight for each electronic mail message initiated in violation of this chapter, as the court considers just.

Section 58-10-80.    (A)    The Attorney General and the state's judicial circuit solicitors shall investigate complaints received concerning violations of this chapter.

(B)    Each violation constitutes a separate offense for purposes of the criminal penalties in this chapter.

Section 58-10-90.    A court of this State may exercise personal jurisdiction over a nonresident or his executor or administrator as to an action or proceeding authorized by this chapter in accordance with the provisions of Part 8, Chapter 2, Title 36.

Section 58-10-100.    The remedies, duties, prohibitions, and penalties of this chapter are not exclusive and are in addition to all other causes of action, remedies, and penalties provided by law including, but not limited to, the criminal penalties provided in Section 16-16-20.

Section 58-10-110.    An electronic mail service provider is not liable for the enforcement of the provisions of this chapter."

SECTION    3.    Section 16-16-20(1)(a) of the 1976 Code, as last amended by Act 339 of 2002, is further amended to read:

"(a)    directly or indirectly access or cause to be accessed a computer, computer system, or computer network for the purpose of:

(i)    devising or executing any scheme or artifice to defraud;

(ii)    obtaining money, property, or services by means of false or fraudulent pretenses, representations, promises; or

(iii)    committing any other crime.; or

(iv)    falsely identifying with the intent to deceive or defraud the recipient or forge commercial electronic message transmission information or other routing information in any manner in connection with the transmission of a commercial electronic message sent from or to the facilities of an Internet provider or its subscribers in this State."

SECTION    4.    Section 16-16-20 of the 1976 Code, as last amended by Act 339 of 2002, is further amended by adding an undesignated subitem at the end to read:

"( )    It is unlawful for a person knowingly to directly or indirectly access or cause to be accessed a computer, computer system, computer network, or computer services as defined in Section 58-10-10, for the purpose of sending or causing to be sent a commercial electronic message in violation of Chapter 10, Title 58. The State Attorney General and the judicial circuit solicitors have the enforcement powers granted in Chapter 10, Title 58."

SECTION    5.    This act takes effect upon approval by the Governor.