KANSAS LEGISLATURE -- SESSION OF 2002
SENATE BILL
467 (SUBSTITUTE)
Introduced January 29, 2002
Conference Committee report
adopted May 3, 2002
Approved by Governor May 17,
2002
AN ACT concerning consumer protection; relating to
disasters; concerning information technology; providing protection from
deceptive and unwanted electronic mail messages; establishing certain acts a
violation of the Kansas consumer protection act; allowing for either a cause
of action or civil penalty for a violation.
Be it enacted by the Legislature of the State of Kansas:
Section 1. (a) This act shall be known as the
commercial electronic mail act.
(b) As used in this act:
(1) "Assist the transmission" means actions taken by a
person to provide substantial assistance or support which enables any person
to formulate, compose, send, originate, initiate or transmit a commercial
electronic mail message when the person providing the assistance knows that
the initiator of the commercial electronic mail message is engaged, or
intends to engage, in any practice that violates the Kansas consumer
protection act.
(2) "Commercial electronic mail message" means an
electronic mail message sent for the purpose of promoting property or
services for sale or lease, but shall not include electronic mail messages
sent by a natural person volunteering to send such messages on behalf of a
charitable organization as defined by K.S.A. 17-1760, and amendments
thereto.
(3) "Electronic mail address" means a destination, commonly
expressed as a string of characters, to which electronic mail may be sent or
delivered.
(4) "Established business relationship" means a prior and
existing relationship formed by a voluntary two-way communication between a
sender and a recipient with or without an exchange of consideration, on the
basis of an express authorization, application, purchase or transaction by
the recipient regarding products or services offered by such sender, which
relationship has not been previously terminated by either party.
(5) "Initiate the transmission" refers to the action by the
original sender of an electronic mail message, not to the action by any
intervening interactive computer service that may handle or retransmit the
message, unless such intervening interactive computer service assists in the
transmission of an electronic mail message when it knows, that the person
initiating the transmission is engaged, or intends to engage, in any act or
practice that violates the Kansas consumer protection act.
(6) "Interactive computer service" means any information
service, system or access software provider that provides or enables
computer access by multiple users to a computer server, including
specifically a service or system that provides access to the internet and
such systems operated or services offered by libraries or educational
institutions.
(7) "Internet domain name" refers to 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 right-most string specifying the top
of the hierarchy.
(8) "Express authorization" means an express affirmative
act by a recipient clearly agreeing to receive commercial electronic
messages from a specified and identifiable sender, or from multiple
persons.
(c) No person shall:
(1) Initiate the transmission, conspire with another to
initiate the transmission, or assist the transmission, of a commercial
electronic mail message from a computer located in Kansas or to an
electronic mail address that the sender knows, is held by a Kansas resident
that:
(A) Uses a third party's internet domain name without
permission of the third party, or otherwise misrepresents or obscures any
information in identifying the point of origin or the transmission path of
a commercial electronic mail message;
(B) contains false or misleading information in the
subject line;
(C) does not contain as the first four characters of the
subject line "ADV:"; Provided, however, the characters "ADV" shall not be
required in the subject line if the recipient has an established business
relationship or has given express authorization to receive commercial
electronic mail messages or in electronic mail messages, other than
messages of a sexually explicit or otherwise adult oriented nature, sent
to less than 500 recipients per month. The sender claiming exemption under
this subsection shall have the burden of proving the exemption by a
preponderance of the evidence;
(D) does not contain instructions, in text at least as
large as the majority of the text in the transmission, for the recipient
to follow to notify the sender not to send any subsequent communications,
with a valid sender operated return electronic mail address to which the
recipient may reply to notify the sender not to send any further
commercial electronic mail messages and the legal name of the person or
entity initiating the transmission, including such person's or entity's
(i) physical address for the receipt of the United States mail or (ii) a
toll free telephone number that the recipient may call to notify the
sender not to send any subsequent communications. It shall be prima facie
evidence that the sender is in violation of this section if the
recipient's reply electronic mail message is returned to the recipient as
undeliverable, or is otherwise not accepted by the sender of the original
commercial electronic mail message; or
(E) contains advertising material for viewing, use,
consumption, sale, lease or rental only by persons over 18 years of age,
including but not limited to content of sexual, sexually explicit or
otherwise adult-oriented nature, unless the first eight characters of the
subject line are "ADV:ADLT."
(2) Initiate the transmission, conspire with another to
initiate the transmission, or assist the transmission, of a commercial
electronic mail message from a computer located in Kansas or to an
electronic mail address that the sender knows, is held by a Kansas resident
that is made after the recipient thereof has notified the sender not to send
any subsequent communications.
(3) Give, transfer, sell or otherwise share with another
the electronic mail address of any recipient who has notified the sender not
to send any subsequent communications for any use other than for the third
party to place the address on a do not contact list.
(4) Assist in the transmission of a commercial electronic
mail message, when the person providing the assistance knows, that the
initiator of the commercial electronic mail message is engaged, or intends
to engage, in any act or practice that violates the Kansas consumer
protection act.
(5) Knowingly sell, give or otherwise distribute or possess
with the intent to sell, give or distribute software that:
(A) Is primarily designed or produced for the purpose of
facilitating or enabling the falsification of electronic mail transmission
information or other routing information;
(B) has only limited commercially significant purpose or
use other than to facilitate or enable the falsification of electronic
mail transmission information or other routing information; or
(C) is marketed by that person or another acting in
concert with that person with that person's knowledge for use in
facilitating or enabling the falsification of electronic mail transmission
information or other routing information.
(d) For purposes of this section, a person knows or has
reason to know that the intended recipient of a commercial electronic mail
message is a Kansas resident if that information is available, upon request,
from the registrant of the internet domain name contained in the recipient's
electronic mail address.
(e) An interactive computer service may, upon its own
initiative, block the receipt or transmission through its service of any
commercial electronic mail that it reasonably believes is, or will be, sent in
violation of this chapter.
(f) No interactive computer service may be held liable for
any action voluntarily taken in good faith to block the receipt or
transmission through its service of any commercial electronic mail which it
reasonably believes is, or will be, sent in violation of this act.
(g) Any violation of this section is an unconscionable act
and practice under the Kansas consumer protection act.
(h) Any person alleging a violation of this section including
an interactive computer service damaged by a violation, shall be deemed a
consumer who has been aggrieved by a violation of the Consumer protection act
and to have suffered actual loss as referred to in K.S.A. 50-634 and 50-636
and amendments thereto.
(i) Any person alleging a violation of this section may bring
a private action to seek relief pursuant to K.S.A. 50-634, 50-636 and this
section, Substitute for SENATE BILL No. 467—page 3 and amendments thereto, and
such person shall be considered a consumer pursuant to K.S.A. 50-624, and
amendments thereto, for the purposes of such private action.
(j) Any person that violates this section shall be subject to
a civil penalty of not less than $500 nor more than $10,000 for each such
violation instead of the penalty provided for in subsection (a) of K.S.A. 50-
636, and amendments thereto.
(k) It shall be an affirmative defense to a violation of this
section if the person can demonstrate, by clear and convincing evidence, (1)
that the sender at the time of the alleged violation had: (A) Maintained a
list of consumers who have notified the person not to send any subsequent
commercial electronic messages; (B) established and implemented, with due
care, reasonable practices and procedures to effectively prevent unsolicited
commercial electronic mail messages in violation of this section; (C) trained
the sender's personnel in the requirements of this section; and (D) maintained
records demonstrating compliance with this section; and (2) the unsolicited
commercial electronic message was the result of an error. Such defense shall
not be exercised by any person more than once within the state of Kansas in
any 12-month period. A person shall be deemed to have exercised such defense
if asserted in response to any consumer complaint about a violation of this
section, regardless of whether litigation has been initiated.
(l) The legislature finds that the practices covered by this
section are matters vitally affecting the public interest for the purpose of
applying the Kansas consumer protection act. A violation of this section is
not reasonable or necessary for the development and preservation of commerce
and is an unconscionable act in violation of the Kansas consumer protection
act.
(m) This section shall be a part of and supplemental to the
Kansas consumer protection act.
Sec. 2. This act shall take effect and be in force from
and after its publication in the statute book.