72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
 
HA to HB 2737
 
LC 2169/HB 2737-5
 
                       HOUSE AMENDMENTS TO
                         HOUSE BILL 2737
 
      By COMMITTEE ON BUSINESS, LABOR AND CONSUMER AFFAIRS
 
                            April 29
 
  On page 1 of the printed bill, line 2, delete '646.608' and
insert '646.618, 646.632 and 646.636'.
  Delete lines 4 through 31 and delete pages 2 through 6 and
insert:
  '  { +  SECTION 1. + }  { + (1) The Legislative Assembly finds:
  ' (a) The economic harm and invasion of privacy resulting from
the transmission and receipt of unsolicited commercial electronic
mail constitutes a threat to the public welfare of the people of
this state.
  ' (b) Unsolicited commercial electronic mail costs Oregonians
hundreds of thousands of dollars each year because of:
  ' (A) The need to acquire additional capacity for computer
systems;
  ' (B) The need to acquire software programs to filter and
control unsolicited commercial electronic mail;
  ' (C) The transmission of computer viruses by unsolicited
commercial electronic mail; and
  ' (D) Time and productivity lost when businesses and public
bodies must devote personnel resources:
  ' (i) To creating and maintaining local electronic mail
filters;
  ' (ii) To removing infestations of unsolicited commercial
electronic mail from networks and individual mailboxes;
  ' (iii) To unclogging transmission paths; and
  ' (iv) To repairing and restarting computer systems that have
experienced resulting system failures.
  ' (c) Unsolicited commercial electronic mail can be used to
transmit pornographic material in a manner that is not readily
apparent to recipients, which can result in the exposure of
pornographic material to minors.
  ' (d) Existing state and federal laws are inadequate to prevent
the harm to the public welfare that results from the transmission
and receipt of unsolicited commercial electronic mail.
  ' (e) Requiring persons that transmit unsolicited commercial
electronic mail to label the mail in a manner readily
recognizable by a recipient will enable recipients to recognize
unsolicited commercial electronic mail and choose whether to
avoid receiving or reading the mail.
  ' (2) The purpose of sections 3 (2) and 4 of this 2003 Act is
to enable recipients of unsolicited commercial electronic mail to
recognize and choose whether to block receipt of unsolicited
commercial electronic mail by requiring persons that transmit
unsolicited commercial electronic mail to label the mail in a
manner readily recognizable by a recipient. + }
  '  { +  SECTION 2. + }  { + As used in sections 1 to 7 of this
2003 Act:
  ' (1) 'Business relationship' means a voluntary exchange of
communication initiated by an electronic mail message recipient's
inquiry about, application for or purchase or use of real estate,
goods or services.
  ' (2) 'Commercial electronic mail message' means an electronic
mail message transmitted for the purpose of encouraging the
purchase, rental or investment in real estate, goods or services.
  ' (3) 'Domain name' means an alphanumeric designation that is
registered with or assigned by a domain name registrar as part of
an electronic address on the Internet.
  ' (4) 'Electronic mail message' means an electronic message or
computer file that contains an image of a message transmitted
between computers or electronic terminals.
  ' (5) 'Electronic mail service provider' means a person that:
  ' (a) Acts as an intermediary in the sending and receiving of
electronic mail messages; and
  ' (b) Provides to end users the ability to send or receive
electronic mail messages.
  ' (6) 'Person' has the meaning given that term in ORS 646.605.
  ' (7) 'Unsolicited commercial electronic mail message' means a
commercial electronic mail message transmitted without the
consent of the recipient. + }
  '  { +  SECTION 3. + }  { + In the course of offering real
estate, goods or services for sale, rent or other disposition, a
person may not:
  ' (1) Transmit, conspire with another person to transmit or
assist in the transmission of an electronic mail message that:
  ' (a) Uses an Internet domain name without permission of the
person that holds the license to use the name;
  ' (b) Contains false or misleading information in the subject
line; or
  ' (c) Misrepresents or hinders a person from determining the
point of origin or transmission path of the electronic mail
message.
  ' (2) Transmit an unsolicited commercial electronic mail
message to a person in this state. + }
  '  { +  SECTION 4. + }  { + (1) Section 3 (2) of this 2003 Act
does not apply if the person that transmits the electronic mail
message:
  ' (a) Has or had, or the predecessor of the person had,
established a business relationship with the person that receives
the electronic mail message;
  ' (b) Is an organization and the electronic mail message is
solely to communicate with a member, employee or contractor of
the organization; or
  ' (c) Includes as the first four characters in the subject line
the capital letters ADV followed immediately by a colon.
  ' (2) Section 3 of this 2003 Act does not apply to an
electronic mail service provider acting only as an intermediary
between the persons that transmit and receive the electronic mail
message. + }
  '  { +  SECTION 5. + }  { + (1) A person that receives an
electronic mail message transmitted in violation of section 3 (1)
of this 2003 Act may bring an action against the person that
violated section 3 (1) of this 2003 Act to recover actual damages
or liquidated damages of $500, whichever is greater.
  ' (2) A person that receives an electronic mail message
transmitted in violation of section 3 (2) of this 2003 Act may
bring an action against the person that violated section 3 (2) of
this 2003 Act to recover actual damages or liquidated damages of
$10, whichever is greater.
  ' (3) The remedies provided by subsections (1) and (2) of this
section apply to each electronic mail message transmitted in
violation of section 3 of this 2003 Act. If the person elects to
recover liquidated damages in lieu of actual damages, the court
may not award the person more than $25,000 per day.
  ' (4) An award of liquidated damages on a claim under this
section is not subject to ORS 18.535, 18.537 or 18.540.
  ' (5)(a) A person who is an individual may bring the action in
the circuit court of the county in which the individual resides.
  ' (b) A person that is not an individual may bring the action
in the circuit court of a county in which the person maintains an
office.
  ' (6) The court may award reasonable attorney fees to a
plaintiff that prevails in an action on a claim under this
section.
  ' (7) The remedies provided in this section are in addition to
and not exclusive of any other remedy provided by law of this
state. + }
  '  { +  SECTION 6. + }  { + (1) An electronic mail service
provider whose service is used by a person to transmit an
electronic mail message in violation of section 3 (1) of this
2003 Act may bring an action against the person that violated
section 3 (1) of this 2003 Act to recover actual damages or
liquidated damages of $500, whichever is greater.
  ' (2) An electronic mail service provider whose service is used
by a person to transmit an electronic mail message in violation
of section 3 (2) of this 2003 Act may bring an action against the
person that violated section 3 (2) of this 2003 Act to recover
actual damages or liquidated damages of $10, whichever is
greater.
  ' (3) The remedies provided by subsections (1) and (2) of this
section apply to each electronic mail message transmitted in
violation of section 3 of this 2003 Act. If the person elects to
recover liquidated damages in lieu of actual damages, the court
may not award the person more than $25,000 per day.
  ' (4) An award of liquidated damages on a claim under this
section is not subject to ORS 18.535, 18.537 or 18.540.
  ' (5) The electronic mail service provider may bring the action
in the circuit court of a county in which:
  ' (a) The provider maintains an office; or
  ' (b) The person that violated section 3 of this 2003 Act has
sufficient contacts for the court to exercise personal
jurisdiction over the person.
  ' (6) The court may award reasonable attorney fees to an
electronic mail service provider that prevails in an action on a
claim under this section.
  ' (7) The remedies provided in this section are in addition to
and not exclusive of any other remedy provided by law of this
state. + }
  '  { +  SECTION 7. + }  { + If an electronic mail service
provider acts in good faith to block the receipt, or transmission
through the provider's service, of electronic mail messages that
the provider anticipates persons will transmit in violation of
section 3 of this 2003 Act, a court may not, for blocking receipt
or transmission of the electronic mail messages, find the
provider to be in violation of section 3 of this 2003 Act or of
any other law of this state. + }
  '  { +  SECTION 8. + } ORS 646.618 is amended to read:
  ' 646.618. (1) When it appears to the prosecuting attorney that
a person has engaged in, is engaging in  { - , - }  or is about
to engage in any act or practice  { + in violation of section 3
of this 2003 Act or + } declared to be unlawful by ORS 646.607 or
646.608, the prosecuting attorney may execute in writing and
cause to be served an investigative demand upon any person who is
believed to have information, documentary material or physical
evidence relevant to the alleged or suspected violation. The
investigative demand shall require   { - such - }   { + the + }
person, under oath or otherwise, to appear and testify, to answer
written interrogatories  { - , - }  or to produce relevant
documentary material or physical evidence for examination
 { - , - }  at   { - such - }   { + any + } reasonable time and
place   { - as - }   { + that + } may be stated in the
investigative demand, or to do any of the foregoing, concerning
conduct of any trade or commerce   { - which - }  { + that + } is
the subject matter of the investigation.
  ' (2) At any time before the return date specified in an
investigative demand, or within 20 days after the demand has been
served, whichever period is shorter, a petition to extend the
return date, or to modify or set aside the demand, stating good
cause including privileged material, may be filed in the
appropriate court.
  '  { +  SECTION 9. + } ORS 646.632 is amended to read:
  ' 646.632. (1) A prosecuting attorney who has probable cause to
believe that a person is engaging in, has engaged in  { - , - }
or is about to engage in an unlawful trade practice  { + or a
violation of section 3 of this 2003 Act + } may bring
 { - suit - }   { + an action + } in the name of the State of
Oregon in the appropriate court to restrain   { - such - }
 { + the + } person from engaging in the alleged unlawful trade
practice { +  or violation + }.
  ' (2) Except as provided in subsections (5) and (6) of this
section, before filing   { - a suit - }   { + an action + } under
subsection (1) of this section, the prosecuting attorney shall in
writing notify the person charged of the alleged unlawful trade
practice  { + or violation + } and the relief to be sought.
 { - Such - }   { + The + } notice shall be served in the manner
set forth in ORS 646.622 for the service of investigative
demands. The person charged   { - thereupon - }   { + with the
unlawful trade practice or violation + } shall have 10 days
within which to execute and deliver to the prosecuting attorney
an assurance of voluntary compliance.   { - Such - }
 { + The + } assurance shall set forth what actions, if any, the
person charged intends to take with respect to the alleged
unlawful trade practice { +  or violation + }.  The assurance of
voluntary compliance   { - shall - }   { + may + } not be
considered an admission of a violation for any purpose. If the
prosecuting attorney is satisfied with the assurance of voluntary
compliance,   { - it may be submitted - }   { + the prosecuting
attorney may submit the assurance of voluntary compliance + } to
an appropriate court for approval   { - and if approved shall
thereafter be filed - }  { + . If the court approves the
assurance of voluntary compliance, the prosecuting attorney shall
file the assurance of voluntary compliance + } with the clerk of
the court. If an approved assurance of voluntary compliance
provides for the payment of an amount of money, as restitution or
otherwise, and if the amount is not paid within 90 days of the
date the court approves the assurance, or, if the assurance of
voluntary compliance requires periodic payments and if any
periodic payment is not paid within 30 days of the date specified
in the assurance of voluntary compliance for any periodic
payment, then the prosecuting attorney may submit that portion of
the assurance of voluntary compliance   { - which - }
 { + that + } provides for the payment of money to the court with
a certificate stating the unpaid balance in a form
 { - which - }   { + that + } fully complies with the
requirements of ORCP 70. Upon submission of an assurance of
voluntary compliance under this subsection, the court shall sign
the assurance of voluntary compliance and it shall be entered in
the register and docketed in the judgment docket. The assurance
of voluntary compliance shall   { - thereupon - }   { + upon
docketing + } constitute a judgment in favor of the State of
Oregon and shall be due and payable. Any money judgment docketed
pursuant to this section shall be enforceable as a judgment in a
civil action, as provided in ORS 18.320, 18.350, 18.360 and
18.400. The notice of the prosecuting attorney under this
subsection   { - shall - }   { + is + } not   { - be deemed - }
a public record until the expiration of 10 days from the service
of the notice.
  ' (3) The prosecuting attorney may reject as unsatisfactory any
assurance:
 
  ' (a)   { - Which - }   { + That + } does not contain a promise
to make restitution in specific amounts or through arbitration
for persons who suffered any ascertainable loss of money or
property as a result of the alleged unlawful trade practice { +
or violation + }; or
  ' (b)   { - Which - }   { + That + } does not contain any
provision, including but not limited to the keeping of records,
 { - which - }   { + that + } the prosecuting attorney reasonably
believes to be necessary to
  { - insure - }   { + ensure + } the continued cessation of the
alleged unlawful trade practice { +  or violation + }, if
 { - such - }   { + the + } provision was included in a proposed
assurance attached to the notice served pursuant to this section.
  ' (4) Violation of any of the terms of an assurance of
voluntary compliance   { - which - }   { + that + } has been
approved by and filed with the court shall constitute a contempt
of court.
  ' (5) The prosecuting attorney need not serve notice pursuant
to subsection (2) of this section before filing   { - a suit - }
 { + an action + } if, within two years of the filing of
 { - such suit - }  { +  the action + }, the person charged with
the alleged unfair trade practice  { + or violation + } submitted
to any prosecuting attorney an assurance of voluntary compliance
 { - which - }   { + that + } was accepted by and filed with an
appropriate court. The prosecuting attorney shall in
 { - such - }   { + that + } case serve notice on the defendant
in the manner set forth in ORS 646.622 for the service of
investigative demands,   { - on the 10th or earlier day previous
to the filing of suit - }  { +  at least 10 days before
commencing an action + }.
  ' (6) If the prosecuting attorney alleges that the prosecuting
attorney has reason to believe that the delay caused by complying
with the provisions of subsection (2) or (5) of this section
would cause immediate harm to the public health, safety or
welfare, the prosecuting attorney may immediately institute
 { - a suit - }   { + an action + } under subsection (1) of this
section.
  ' (7) A temporary restraining order may be granted without
prior notice to the person if the court finds there is a threat
of immediate harm to the public health, safety or welfare.
 { - Such a - }  { + The + } temporary restraining order shall
expire by its terms within
  { - such - }   { + the + } time after entry, not to exceed 10
days,   { - as - }   { + that + } the court fixes, unless within
the time   { - so - }  fixed the order, for good cause shown, is
extended for   { - a like period - }   { + up to another 10
days + } or   { - unless - }  the person restrained consents
 { - that it may be extended - }   { + to the court's extending
the order + } for a longer period.
  ' (8) The court may award reasonable attorney fees to the
prevailing party in an action under this section. If the
defendant prevails in   { - such suit - }   { + the action + }
and the court finds that the defendant had in good faith
submitted to the prosecuting attorney a satisfactory assurance of
voluntary compliance prior to the institution of the
 { - suit - }   { + action + } or that the prosecuting attorney,
in   { - a suit - }   { + an action + } brought under subsections
(5) and (6) of this section, did not have reasonable grounds to
proceed under those subsections, the court shall award reasonable
attorney fees at trial and on appeal to the defendant.
  '  { +  SECTION 10. + } ORS 646.636 is amended to read:
  ' 646.636. The court may   { - make such - }   { + issue
any + } additional orders or judgments   { - as may be - }
 { + that the court considers + } necessary to restore to any
person   { - in interest - }  any moneys or property, real or
personal, of which the person was deprived by means of any  { +
violation of section 3 of this 2003 Act or + } practice declared
to be unlawful in ORS 646.607 or 646.608, or as may be necessary
to
  { - insure - }   { + ensure + } cessation of unlawful trade
practices.
  '  { +  SECTION 11. + }  { + (1) Section 3 of this 2003 Act
applies to transmissions of electronic mail messages occurring on
or after the effective date of this 2003 Act.
  ' (2) Sections 5 and 6 of this 2003 Act and the amendments to
ORS 646.618, 646.632 and 646.636 by sections 8, 9 and 10 of this
2003 Act apply to violations occurring on or after the effective
date of this 2003 Act. + } ' .
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