HB 1341

This bill prohibits the transmission and distribution of unsolicited bulk electronic mail and establishes criminal penalties for such an offense.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Paragraph; Computer Related Offenses; Unsolicited Bulk Electronic Mail. Amend RSA 638:17 by inserting after paragraph VI the following new paragraph:

(1) Uses a computer or computer network with the intent to falsify or forge electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider, or its subscribers; or

(2) Uses a computer or computer network with the intent to knowingly sell, give, or otherwise distribute or possess with the intent to sell, give, or distribute software which is primarily designed or produced for the purpose of facilitating or enabling the falsification of electronic mail transmission information or other routing information or 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 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.

(1) The unsolicited bulk electronic mail was transmitted from accounts not lawfully registered in the defendant's name; or

(2) The volume of unsolicited bulk electronic mail transmitted exceeded 10,000 attempted recipients in any 24-hour time period, or 100,000 attempted recipients in any 30-day period, or 1,000,000 attempted recipients in any one-year period; or

(3) The revenue generated from a specific unsolicited bulk electronic mail transmission exceeded $1,000 or the total revenue generated from all unsolicited bulk electronic mail transmitted to any Internet service provider or its subscribers exceeded $50,000; or

(4) The defendant knowingly hired, employed, used, or permitted any minor to assist in the transmission of unsolicited bulk electronic mail.

(c) Transmission of electronic mail from an organization to its members shall not be deemed to be unsolicited bulk electronic mail.

2 New Paragraph; Computer Crime Penalties; Penalties for Unsolicited Bulk Electronic Mail. Amend RSA 638:18 by inserting after paragraph V the following new paragraph:

VI.(a) A violation of RSA 638:17, VII which results in harm to a person arising from the transmission of unsolicited bulk electronic mail in violation of the policy established by an electronic mail service provider where the defendant has knowledge of such policy or where such policy is available on the electronic mail service provider's website, such person, other than an electronic mail service provider, may also recover attorneys' fees and costs, and may elect, in lieu of actual damages, to recover the lesser of $10 for each and every unsolicited bulk electronic mail message transmitted in violation of this paragraph, or $1,000 per day. The injured person shall not have a cause of action against the electronic mail service provider under this paragraph.

(b) A violation of RSA 638:17, VII which results in harm to an electronic mail service provider arising from the transmission of unsolicited bulk electronic mail in violation of the policy established by an electronic mail service provider where the defendant has knowledge of such policy or where such policy is available on the electronic mail service provider's website, an electronic mail service provider may also recover attorneys' fees and costs, and may elect, in lieu of actual damages, to recover $1 for each and every intended recipient of an unsolicited bulk electronic mail message where the intended recipient is an end user of the electronic mail service provider or $1,000 for each day an attempt is made to transmit an unsolicited bulk electronic mail to an end user of the electronic mail service provider. In calculating the statutory damages under this provision, the court may adjust the amount awarded as necessary, but in doing so shall take into account the number of complaints to the electronic mail service provider generated by the defendant's messages, the defendant's degree of culpability, the defendant's prior history of such conduct, and the extent of economic gain resulting from the conduct.

(c) This paragraph shall not be construed to limit any person's rights to pursue any additional remedy otherwise allowed by law.

The Judicial Branch states this bill amends RSA 638:17, which deals with computer related offenses, to add RSA 638:17, VII to prohibit the transmission and distribution of unsolicited bulk electronic mail. The offense is generally a class A misdemeanor but would be a class B felony in certain circumstances. Also added by this bill is an amendment to RSA 638:18, adding section VI, to provide statutory damages to both individuals and electronic mail service providers for violations of RSA 638:17, VII. The Judicial Branch has no information on which to estimate how many additional cases this bill could add both on the criminal side and with respect to the statutory damages provision. If criminal prosecution under this bill is aggressively pursued, along with damage claims by individual and service provider victims, the Judicial Branch will experience a fiscal impact greater than $10,000. On the criminal side, a class A misdemeanor carries the potential of incarceration and, therefore, the potential for de novo appeals to the superior court for a jury trial. A felony offense can involve arraignment, bail, and probable cause hearings in the district court, numerous hearings and a jury trial in the superior court, and an appeal to the supreme court. On the civil penalty side, damages could be such as to involve a jury trial in the superior court. Whether civil or criminal, the cost of a full day trial in the superior court, without considering the cost of the jury, is $950.48 as follows based on a seven and one-half hour day:

Judge $481.95

Court Monitor 151.05

Deputy Clerk 247.50

Bailiff 69.98

$950.48

Adding the cost of preliminary hearings, a jury, time to write a charge to the jury, and time for clerical processing would make the cost of a jury trial well in excess of $1,000 per day. Moreover, should a decision be appealed, several thousand dollars of additional costs would be incurred in judge, law clerk, and staff time at the supreme court. Thus, even one case brought pursuant to this statute, if enacted, could result in a fiscal impact to the Judicial Branch in excess of $10,000. Any fiscal impact to the Judicial Branch will result in increased delays in the processing of other cases.

The Judicial Council states this bill establishes prohibited computer practices and establishes penalties for those who engage in such practices. For the purposes of this fiscal note, the Council is only concerned with the criminal penalty that is added, namely the class B felony.

Otherwise, the usual assumptions will apply to the analysis of the cost impacts of this legislation. It is assumed that the individual so charged has been found to be eligible for representation as an indigent defendant. For the purposes of this fiscal note, the Council assumed the individual so charged is an adult, although a juvenile may also be charged with this new offense, but different rates of compensation and total costs to the system will differ if the case is processed through juvenile court. The court will appoint in the first instance either a public defender or a contract attorney either of whom will be paid at the fixed contract rate of $687.50 per felony charged. If an assigned counsel attorney must be used either due to a conflict of interest or for reasons of caseload limitations, the $60 per hour rate will apply to the case with a fee cap of $3,000. The fee cap may be waived upon motion filed in advance with the court. If any motions for "services other than counsel" are approved as a necessary part of the defense of a case, the fee for services would be payable from indigent defense funds.

The Department of Justice stated they seldom become involved in the prosecution of this type of case and it is assumed the Department would continue not to be involved. Therefor, the fiscal impact on the Department would be negligible.

The Association of the Counties states that a new misdemeanor creates a cost for the county correctional facilities. The exact impact on county expenditures will depend on the number of individuals sentenced, as well as those who are incarcerated pre-trial in a county facility. The average annual cost for counties to incarcerate inmates is $21,634.