Arizona’s Anti-Spam Law

Arizona Senate Bill 1280 passed by the Arizona legislature and signed into law by Governor Napolitano on May 16, 2003, attempts to regulate spam sent into and from Arizona.  Arizona’s anti-spam law includes statutory definitions of “commercial electronic mail,” “electronic mail,” “established business relationship,” and “unsolicited commercial electronic mail.”  For example, “unsolicited commercial electronic mail” means a commercial electronic mail message sent, without the consent of the recipient, by a person with whom the recipient does not have an established business relationship.

Below you will find the House and Senate summaries of the new Arizona anti-spam law (Senate Bill 1280) and the Arizona actual statutes.

Arizona House Summary of Senate Bill 1280

SB 1280 regulates unsolicited commercial email.  It also authorizes damages in addition to the current civil penalties under the state Consumer Fraud Act.

History

The Telemarketing and Consumer Fraud and Abuse Prevention Act was enacted on October 1, 2000.  This federal law authorized the Federal Trade Commission to create rules governing abusive telemarketing practices.  A.R.S. 44-1522 grants Arizona courts authority to construe the State’s consumer fraud provisions in a consistent manner with the federal guidelines.  SB 1280 is identical to HB 2107 as passed by the House.

Provisions

  • Defines the following terms: commercial electronic mail, electronic mail, electronic mail service provider (EMSP), established business relationship, sender, unsolicited commercial electronic mail (UCEM).
  • Includes the term executable program to the definition of electronic mail.

Unlawful Practices and Requirements

  • Prohibits an UCEM from falsifying a domain name, misrepresenting information regarding the content, or obscuring the transmission origin.
  • Requires a person sending UCEM or maintaining a database for the purpose of sending UCEM to provide a free way for the recipient to:

Be removed from the sender’s email address list to prevent future UCEM

Restrict the future sale of their email address to another person or organization.

  • Allows senders 3 days, upon request, to remove a recipient from a mailing list.
  • Requires a person sending UCEM to use the exact characters “ADV:” as the first 4 characters in the subject line of UCEM.
  • Applies the bill’s prohibitions to any person doing business Arizona and to any person who transmits a commercial email message:
  1. From a computer located in this state;
  2. To an email address that the sender knows, or has reason to believe is held by an Arizona resident;
  3. To an interactive computer service whose equipment or principal place of business is in Arizona.

Enforcement and Damages

  • If a person incurs damages as result of UCEM, that person may recover attorney’s fees and costs in addition to either:
  1. The actual damages or
  2. The lesser of $10 per email or $25,000.
  • If an EMSP incurs damages as result of UCEM, that provider may recover attorney’s fees and costs in addition to either:
  1. The actual damages or
  2. The greater of $10 per email or $25,000.
  • Provides for enforcement of this section under the Consumer Fraud statute (A.R.S. 44-1522).
  • Directs the Attorney General to enforce the provisions of the bill.
  • Deems a violation of this section to be punishable as a class 2 misdemeanor (up to 4 months jail time/up to $750 (person) or $10,000 (enterprises)).
  • Legal proceedings relating to this article may be kept confidential in an effort to maintain trade secrets and prevent future similar recurrences.
  • Allows for the penalties as prescribed by this section in addition to all others available to the state.
  • Clarifies that nothing in the bill creates a cause of action or a right to bring an action against an EMSP for transmitting UCEM over the computer network.

Exceptions

  • Exempts email:

Used to communicate exclusively with other members, employees, contractors, consenting recipients, and recipients that have an established business relationship with the sender.

Sent in error.

With ad placement in an electronic mail message that the recipient has agreed to in exchange for use of the email account.

Miscellaneous

  • Stipulates that an EMSP may establish an enforce a policy to block the receipt or transmission through its service of any commercial electronic mail that it believes is or will be sent in violation of this act.

Arizona Senate Summary of Senate Bill 1280

Purpose

Regulates the use of unsolicited commercial electronic mail.

Background

As more people use electronic mail (e-mail), marketers are increasingly using e-mail messages to advertise their products and services.  In many cases, the advertisers are sending unsolicited commercial e-mail (UCE), also known as unsolicited bulk mail, junk mail or spam.  In a study done by the Federal Trade Commission (FTC), it was found that approximately 86 percent of the addresses posted to web pages received spam and 86 percent of the addresses posted to newsgroups received spam.   The FTC found that “spammers” obtain e-mail addresses by buying lists from brokers who have “harvested” addresses from internet newsgroup postings, chat rooms, websites and online services’ members directories.  The spammers are then able to send thousands, and even millions, of e-mail messages at one time.

According to the National Conference of State Legislators, 26 states have enacted laws regulating UCE or bulk e-mail advertising.  These laws have generally addressed problems with UCE including misinterpretation or falsification of the origin or the routing information of a message and also the use of a third parties’ internet address without their permission.  Some states have required mechanisms for recipients of UCE to opt out of receiving future messages and others have required labeling in the subject line of e-mail messages to indicate whether the message contains an advertisement.

S.B. 1280 attempts to reduce spam by regulating UCE in Arizona and prohibiting the transmission of commercial e-mails that contain false information regarding the origin of the message or content.  The bill allows commercial e-mail to be sent if there is an established business relationship, requires vendors to provide a free mechanism for the recipient to remove themselves (opt-out) from the list and to restrict future sale of their e-mail address information.  S.B. 1280 allows for damages to be collected by a person or e-mail service provider if injured as a result of intentional transmission of UCE and encourages providers to take voluntary actions to block the receipt or transmission of UCE.

The fiscal impact to the state general fund associated with this legislation is uncertain at this time.

Provisions

  1. Prohibits a person from knowingly transmitting commercial e-mail if:
  2. a)   The person falsifies e-mail transmission information or other routing information for UCE.
  3. b) The e-mail contains false or misleading information in the subject line.
  4. c) A person transmits an e-mail using a third party’s internet address or domain name without that party’s permission and it appears the third party was the sender.
  5. Requires a person who sends UCE or maintains a database for the purpose of sending UCE to provide a free procedure that allows the recipient to easily:
  6. a) Remove themselves from the sender’s e-mail address list.
  7. b) Restrict the future sale or transfer of the recipient’s e-mail address information.
  8. Allows the sender of UCEs three business days to remove a recipient’s e-mail address from the list upon request of the recipient.
  9. Requires a person who sends UCE or maintains a database for the purpose of sending UCE to use the characters “ADV:” as the first characters on the subject line of the UCE.
  10. States the prohibitions apply to any person doing business in Arizona and to any person who transmits a commercial e-mail message from a computer located in Arizona, to an e-mail address that the sender knows is held by an Arizona resident, or to an interactive computer service whose equipment or principal place of business is in Arizona.
  11. Allows a person whose property or person is injured due to a violation of the statutes governing commercial e-mail to recover any damages sustained, including loss of profits, and the costs incurred from the suit.
  12. Allows an injured party, due to the intentional transmission of UCE, to recover attorney fees and costs and either:
  13. a)   Recover actual damages.
  14. b) Recover $10 for each UCE message or $25,000, whichever is less.
  15. Allows an injured e-mail service provider, due to the intentional transmission of UCE, to recover attorney fees and costs and either:
  16. a)   Recover actual damages.
  17. b)Recover $10 for each UCE message or $25,000, whichever is greater.
  18. Stipulates the statutes governing commercial e-mail do not create a cause of action or right to bring action against the e-mail service provider for transmitting UCE.
  19. Allows the court to conduct legal proceedings regarding violations of commercial e-mail statutes in a manner that protects the secrecy and security of those involved in order to protect trade secrets of any party and to prevent an occurrence of the same act by a different party.
  20. Stipulates the statutes governing commercial e-mail do not apply if:
  21. a)The sender is an organization using e-mail to communicate with members, employees, or contractors of the organization.
  22. b) The sender has the consent of the recipient.
  23. c) The sender has an established business relationship with the recipient.
  24. d) The commercial e-mail was sent in error.
  25. e)An interactive computer service provider has attached an advertisement to the message in exchange for use of an e-mail account or the sender has agreed to the arrangement.
  26. Stipulates the statutes governing commercial e-mail do not apply to an e-mail service provider if the e-mail service provider:
  27. a) Is an intermediary between the sender and the recipient.
  28. b) Transmits UCE over the provider’s computer network or facilities.
  29. Allows an e-mail service provider to establish and enforce company policies to block the receipt or transmission of commercial e-mail advertisements that it believes is sent or will be sent in violation.
  30. Stipulates a violation of the statutes governing commercial e-mail is a class 2 misdemeanor.
  31. Prescribes definitions.
  32. Makes technical and conforming changes.
  33. Provides for a general effective date.

The Actual Arizona Anti-Spam Statutes

The following is the text of Arizona Senate Bill 1280 passed by the Arizona legislature and signed into law by Governor Napolitano on May 16, 2003.

44-1522. Unlawful practices; intended interpretation of provisions

  1. The act, use or employment by any person of any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice.
  2. The violation of Chapter 9, Article 16 or Chapter 19, Article 1 of this title is declared to be an unlawful practice and subject to enforcement under this article.
  3. It is the intent of the legislature, in construing subsection A, that the courts may use as a guide interpretations given by the federal trade commission and the federal courts to 15 United States Code sections 45, 52 and 55(a)(1).

Article 16. Commercial Electronic Mail

44-1372. Definitions

In this Article, unless the context otherwise requires:

  1. “Commercial electronic mail” means electronic mail sent for the purpose of encouraging the purchase or rental of, or investment in, property, goods or services.
  2. “Electronic mail” means an electronic message, executable program or computer file containing an image of a message that is transmitted between two or more computers or electronic terminals and includes electronic messages that are transmitted within or between computer networks.
  3. “Electronic mail service provider” means any person who is an intermediary in sending or receiving electronic mail and who provides to end users of electronic mail services the ability to send or receive electronic mail.
  4. “Established business relationship” means a prior or existing relationship formed by a voluntary communication between a person or entity and the recipient, with or without an exchange of consideration, on the basis of an inquiry, application, purchase or use by the recipient regarding products or services offered by the person or entity.
  5. “Sender” means a person who initiates an unsolicited commercial electronic mail.
  6. “Unsolicited commercial electronic mail” means a commercial electronic mail message sent, without the consent of the recipient, by a person with whom the recipient does not have an established business relationship.

44-1372.01. Regulations; Powers of Attorney General; Cumulative Remedies

  1. A person shall not knowingly transmit commercial electronic mail if any of the following apply:
  1. The person falsifies electronic mail transmission information or other routing information for unsolicited commercial electronic mail.
  2. The mail contains false or misleading information in the subject line.
  3. The person uses a third party’s internet address or domain name without the third party’s consent for the purpose of transmitting electronic mail in a way that makes it appear that the third party was the sender of the mail.
  1. If a person sends unsolicited commercial electronic mail or maintains a database for the purpose of sending unsolicited commercial electronic mail, the person shall do the following:
  1. Use the exact characters “ADV:” as the first four characters in the subject line of the unsolicited commercial electronic mail.
  2. Provide a procedure that allows recipients, at no cost to the recipients, to easily do both of the following:

(a) Remove themselves from the sender’s electronic mail address lists so the recipients are not included in future electronic mailings from the sender. the sender shall have three business days to remove the recipient’s electronic mail address from the sender’s electronic mail address lists so the recipients are not included in future electronic mailings from the sender.

(b) Restrict the future sale or transfer of the recipient’s electronic mail address information to another person or organization for the purpose of sending commercial electronic mail.

  1. Failure to comply with this Article is an unlawful practice pursuant to Section 44-1522.  The Attorney General may investigate and take appropriate action as prescribed by Chapter 10, Article 7 of this Title.
  2. This Article is in addition to all other causes of action, remedies and penalties available to this state.
  3. The prohibitions in this Section shall apply to any person doing business in this state and to any person who transmits a commercial electronic mail message by any of the following:
  1. From a computer located in this state.
  2. To an electronic mail address that the sender knows, or has reason to know, is held by a resident of this state.
  3. To an interactive computer service with equipment or its principal place of business in this state.

44-1372.02. Damages

  1. A person whose property or person is injured because of a violation of this Article may recover for any damages sustained, including loss of profits, and the costs incurred from the suit.
  2. If an injury results from the intentional transmission of unsolicited commercial electronic mail, the injured person may recover attorney fees and costs and may choose, instead of receiving actual damages, to recover ten dollars for each unsolicited commercial electronic mail message transmitted in violation of this article or twenty-five thousand dollars, whichever is less. this subsection does not apply to an electronic mail service provider.
  3. Nothing in this Article creates a cause of action or a right to bring an action against the electronic mail service provider for transmitting unsolicited commercial electronic mail over the computer network.
  4. If an injury results from the intentional transmission of unsolicited commercial electronic mail, an injured electronic mail service provider may recover attorney fees and costs and may choose, instead of receiving actual damages, to recover ten dollars for each unsolicited commercial electronic mail message transmitted in violation of this article or twenty-five thousand dollars, whichever is greater.

44-1372.03. Court Proceedings; Secrecy

At the request of any party to an action brought pursuant to this Section, the court may conduct all legal proceedings in a manner to protect the secrecy and security of the computer, computer network, computer data, computer program and computer software involved in order to prevent possible recurrence of the same or similar act by another person and to protect any trade secrets of any party.

44-1372.04. Applicability

  1. This Article does not apply to electronic mail messages if any of the following applies:
  1. The sender is an organization using electronic mail to communicate exclusively with either of the following:

(a) Members of the organization.

(b) Employees or contractors of the organization, or both.

  1. The sender has the consent of the recipient.
  2. The sender has an established business relationship with the recipient.
  3. The commercial electronic mail message is the result of an error.
  4. An interactive computer service provider has attached an advertisement to the message in exchange for use of an electronic mail account or if the sender has agreed to the arrangement.
  1. This article does not apply to an electronic mail service provider if either of the following apply:
  1. The electronic mail service provider is an intermediary between the sender and the recipient in the transmission of electronic mail.
  2. The electronic mail service provider transmits unsolicited commercial electronic mail over the provider’s computer network or facilities.
  1. An electronic mail service provider may establish and enforce a policy to block the receipt or transmission through its service of any commercial electronic mail that it believes is or will be sent in violation of this article.

44-1372.05. Violation; Classification

A person who violates this article is guilty of a class 2 misdemeanor.