|
|
| To amend section 2923.01 and to enact section | 1 |
| 2913.421 of the Revised Code to prohibit a person | 2 |
| from transmitting multiple electronic mail | 3 |
| advertisements, falsifying the originating address | 4 |
| or other routing information in multiple | 5 |
| electronic mail advertisements, or falsifying | 6 |
| registration information for multiple electronic | 7 |
| mail accounts, and to prohibit unauthorized access | 8 |
| to a public computer to transmit multiple | 9 |
| electronic mail advertisements. | 10 |
| Section 1. That section 2923.01 be amended and section | 11 |
| 2913.421 of the Revised Code be enacted to read as follows: | 12 |
| Sec. 2913.421. (A) As used in this section: | 13 |
| (1) "Advertisement" has the same meaning as in section | 14 |
| 4931.55 of the Revised Code. | 15 |
| (2) "Computer," "computer network," and "computer system" | 16 |
| have the same meanings as in section 2913.01 of the Revised Code. | 17 |
| (3) "Domain name" means any alphanumeric designation that is | 18 |
| registered with or assigned by any domain name registrar, domain | 19 |
| name registry, or other domain name registration authority, and | 20 |
| that is included in an electronic mail message. | 21 |
| (4) "Electronic mail," "electronic mail advertisement," | 22 |
| "electronic mail service provider," "originating address," and | 23 |
| "recipient" have the same meanings as in section 2307.64 of the | 24 |
| Revised Code. | 25 |
| (5) "Electronic mail message" means each electronic mail | 26 |
| addressed to a discrete addressee. | 27 |
| (6) "Financial institution" has the same meaning as in | 28 |
| section 122.39 of the Revised Code. | 29 |
| (7) "Header information" means the source, destination, and | 30 |
| routing information attached to an electronic mail message, | 31 |
| including the originating domain name, the originating electronic | 32 |
| mail address, and technical information that authenticates the | 33 |
| sender of an electronic mail message for network security or | 34 |
| network management purposes. | 35 |
| (8) "Initiate the transmission" means to originate an | 36 |
| electronic mail message or to procure the origination of that | 37 |
| electronic mail message, regardless of whether the electronic mail | 38 |
| message reaches its intended recipients, and does not include the | 39 |
| actions of an electronic mail service provider used by another | 40 |
| person for the transmission, routing, relaying, handling, or | 41 |
| storing, through an automatic technical process, of an electronic | 42 |
| mail message for which another person has provided and selected | 43 |
| the recipient electronic mail address. | 44 |
| (9) "Internet" has the same meaning as in section 341.42 of | 45 |
| the Revised Code. | 46 |
| (10) "Internet protocol address" means the string of numbers | 47 |
| by which locations on the internet are identified by routers or | 48 |
| other computers connected to the internet. | 49 |
| (11) "Materially falsify" means to alter or conceal in a | 50 |
| manner that would impair the ability of a recipient of an | 51 |
| advertisement, an electronic mail service provider processing an | 52 |
| electronic mail message on behalf of a recipient, a person | 53 |
| alleging a violation of section 2913.421 of the Revised Code, or a | 54 |
| law enforcement agency to identify, locate, or respond to a person | 55 |
| that initiated an electronic mail message or to investigate an | 56 |
| alleged violation of section 2913.421 of the Revised Code. | 57 |
| (12) "Multiple" means more than ten electronic mail messages | 58 |
| during a twenty-four-hour period, more than one hundred electronic | 59 |
| mail messages during a thirty-day period, or more than one | 60 |
| thousand messages during a one-year period. | 61 |
| (13) "Protected computer" means any of the following: | 62 |
| (a) A computer exclusively for the use of state government or | 63 |
| a financial institution; | 64 |
| (b) A computer used by or for state government or a financial | 65 |
| institution when the conduct constituting the violation of | 66 |
| division (B) of this section affects that use by or for the state | 67 |
| government or financial institution; | 68 |
| (c) A computer that is used in intrastate or interstate | 69 |
| communication. | 70 |
| (B) No person, with regard to electronic mail advertisements | 71 |
| sent from or to a protected computer in this state, shall do any | 72 |
| of the following: | 73 |
| (1) Knowingly use a protected computer to relay or retransmit | 74 |
| multiple electronic mail advertisements, with the intent to | 75 |
| deceive or mislead recipients or any electronic mail service | 76 |
| provider, as to the origin of those advertisements; | 77 |
| (2) Knowingly and materially falsify header information in | 78 |
| multiple electronic mail advertisements and purposely initiate the | 79 |
| transmission of those advertisements; | 80 |
| (3) Knowingly register, using information that materially | 81 |
| falsifies the identity of the actual registrant, for five or more | 82 |
| electronic mail accounts or online user accounts or two or more | 83 |
| domain names and purposely initiate the transmission of multiple | 84 |
| electronic mail advertisements from one, or any combination, of | 85 |
| those accounts or domain names; | 86 |
| (4) Knowingly falsely represent the right to use five or more | 87 |
| internet protocol addresses, and purposely initiate the | 88 |
| transmission of multiple electronic mail advertisements from those | 89 |
| addresses. | 90 |
| (5) Knowingly access a protected computer without | 91 |
| authorization and purposely initiate the transmission of multiple | 92 |
| electronic mail advertisements from or through the protected | 93 |
| computer. | 94 |
| (C)(1) Whoever violates division (B)(1), (2), (3), or (4) of | 95 |
| this section is guilty of illegally transmitting multiple | 96 |
| electronic mail advertisements. Except as otherwise provided in | 97 |
| division (C)(2) or (4) of this section, illegally transmitting | 98 |
| multiple electronic mail advertisements is a felony of the fourth | 99 |
| degree. | 100 |
| (2) Illegally transmitting multiple electronic mail | 101 |
| advertisements is a felony of the third degree if any of the | 102 |
| following apply: | 103 |
| (a) Regarding a violation of division (B)(3) of this section, | 104 |
| the offender, using information that materially falsifies the | 105 |
| identity of the actual registrant, knowingly registers for twenty | 106 |
| or more electronic mail accounts or online user accounts or ten or | 107 |
| more domain names, and purposely initiates, or conspires to | 108 |
| initiate, the transmission of multiple electronic mail | 109 |
| advertisements from the accounts or domain names. | 110 |
| (b) Regarding any violation of division (B)(1), (2), (3), or | 111 |
| (4) of this section, the volume of electronic mail advertisements | 112 |
| the offender transmitted in committing the violation exceeds two | 113 |
| hundred and fifty during any twenty-four-hour period, two thousand | 114 |
| five hundred during any thirty-day period, or twenty-five thousand | 115 |
| during any one-year period. | 116 |
| (c) Regarding any violation of division (B)(1), (2), (3), or | 117 |
| (4) of this section, during any one-year period the aggregate loss | 118 |
| to the victim or victims of the violation is five hundred dollars | 119 |
| or more or during any one-year period the aggregate value of the | 120 |
| property or services obtained by any offender as a result of the | 121 |
| violation is five hundred dollars or more. | 122 |
| (d) Regarding any violation of division (B)(1), (2), (3), or | 123 |
| (4) of this section, the offender committed the violation with | 124 |
| three or more other persons with respect to whom the offender was | 125 |
| the organizer or leader of the activity that resulted in the | 126 |
| violation. | 127 |
| (3) Except as otherwise provided in division (C)(4) of this | 128 |
| section, whoever violates division (B)(5) of this section is | 129 |
| guilty of unauthorized access of a protected computer, a felony of | 130 |
| the third degree. | 131 |
| (4) Illegally transmitting multiple electronic mail | 132 |
| advertisements and unauthorized access of a protected computer in | 133 |
| violation of this section are felonies of the second degree if the | 134 |
| offender previously has been convicted of a violation of this | 135 |
| section or a violation of a law of another state or the United | 136 |
| States regarding the transmission of multiple electronic mail | 137 |
| advertisements or unauthorized access to a computer system, or if | 138 |
| the offender committed the violation of this section in the | 139 |
| furtherance of a felony. | 140 |
| (D)(1) The attorney general, or any person engaged in the | 141 |
| business of an electronic mail service provider that is injured by | 142 |
| a violation of this section, may bring a civil action in an | 143 |
| appropriate court seeking relief from any person whose conduct | 144 |
| violated section 2913.421 of the Revised Code. The civil action | 145 |
| may be commenced at any time within two years of the date after | 146 |
| the act that is the basis of the civil action. | 147 |
| (2) In a civil action brought by the attorney general | 148 |
| pursuant to division (D)(1) of this section, the court may award | 149 |
| temporary, preliminary, or permanent injunctive relief. The court | 150 |
| may also impose a civil penalty against the offender in an amount | 151 |
| not to exceed twenty-five thousand dollars for each day a | 152 |
| violation occurs, or not less than two dollars but not more than | 153 |
| eight dollars for each electronic mail advertisement that is | 154 |
| initiated in violation of this section, as the court considers | 155 |
| just. | 156 |
| (3) In any civil action brought by a person engaged in the | 157 |
| business of an electronic mail service provider pursuant to | 158 |
| division (D)(1) of this section, the court may award temporary, | 159 |
| preliminary, or permanent injunctive relief, and also may award | 160 |
| damages in an amount equal to the greater of the following: | 161 |
| (a) The sum of the actual damages incurred by the person | 162 |
| engaged in the business of an electronic mail service provider as | 163 |
| a result of the violation of this section, plus any receipts of | 164 |
| the offender that are attributable to the violation of this | 165 |
| section and that were not taken into account in computing actual | 166 |
| damages; | 167 |
| (b) Statutory damages in an amount not exceeding twenty-five | 168 |
| thousand dollars for each day a violation occurs, or not less than | 169 |
| two dollars but not more than eight dollars for each electronic | 170 |
| mail advertisement initiated in violation of this section. | 171 |
| (E) Any equipment, software, or other technology of a person | 172 |
| who violates this section that is used or intended to be used in | 173 |
| the commission of a violation of this section, and any real or | 174 |
| personal property that constitutes or is traceable to the gross | 175 |
| proceeds obtained from the commission of a violation of this | 176 |
| section, is contraband and is subject to seizure and forfeiture | 177 |
| pursuant to sections 2933.42 and 2933.43 of the Revised Code. | 178 |
| (F) The attorney general may bring a civil action, pursuant | 179 |
| to the CAN-SPAM Act of 2003, Pub. L. No. 108-187, on behalf of the | 180 |
| residents of the state in a district court of the United States | 181 |
| that has jurisdiction for a violation of this section or a | 182 |
| violation of Pub. L. No. 108-187. | 183 |
| Sec. 2923.01. (A) No person, with purpose to commit or to | 184 |
| promote or facilitate the commission of aggravated murder, murder, | 185 |
| kidnapping, compelling prostitution, promoting prostitution, | 186 |
| aggravated arson, arson, aggravated robbery, robbery, aggravated | 187 |
| burglary, burglary, engaging in a pattern of corrupt activity, | 188 |
| corrupting another with drugs, a felony drug trafficking, | 189 |
| manufacturing, processing, or possession offense, theft of drugs, | 190 |
| or illegal processing of drug documents, the commission of a | 191 |
| felony offense of unauthorized use of a vehicle, unauthorized | 192 |
| access of a protected computer, illegally transmitting multiple | 193 |
| electronic mail advertisements, or the commission of a violation | 194 |
| of any provision of Chapter 3734. of the Revised Code, other than | 195 |
| section 3734.18 of the Revised Code, that relates to hazardous | 196 |
| wastes, shall do either of the following: | 197 |
| (1) With another person or persons, plan or aid in planning | 198 |
| the commission of any of the specified offenses; | 199 |
| (2) Agree with another person or persons that one or more of | 200 |
| them will engage in conduct that facilitates the commission of any | 201 |
| of the specified offenses. | 202 |
| (B) No person shall be convicted of conspiracy unless a | 203 |
| substantial overt act in furtherance of the conspiracy is alleged | 204 |
| and proved to have been done by the accused or a person with whom | 205 |
| the accused conspired, subsequent to the accused's entrance into | 206 |
| the conspiracy. For purposes of this section, an overt act is | 207 |
| substantial when it is of a character that manifests a purpose on | 208 |
| the part of the actor that the object of the conspiracy should be | 209 |
| completed. | 210 |
| (C) When the offender knows or has reasonable cause to | 211 |
| believe that a person with whom the offender conspires also has | 212 |
| conspired or is conspiring with another to commit the same | 213 |
| offense, the offender is guilty of conspiring with that other | 214 |
| person, even though the other person's identity may be unknown to | 215 |
| the offender. | 216 |
| (D) It is no defense to a charge under this section that, in | 217 |
| retrospect, commission of the offense that was the object of the | 218 |
| conspiracy was impossible under the circumstances. | 219 |
| (E) A conspiracy terminates when the offense or offenses that | 220 |
| are its objects are committed or when it is abandoned by all | 221 |
| conspirators. In the absence of abandonment, it is no defense to a | 222 |
| charge under this section that no offense that was the object of | 223 |
| the conspiracy was committed. | 224 |
| (F) A person who conspires to commit more than one offense is | 225 |
| guilty of only one conspiracy, when the offenses are the object of | 226 |
| the same agreement or continuous conspiratorial relationship. | 227 |
| (G) When a person is convicted of committing or attempting to | 228 |
| commit a specific offense or of complicity in the commission of or | 229 |
| attempt to commit the specific offense, the person shall not be | 230 |
| convicted of conspiracy involving the same offense. | 231 |
| (H)(1) No person shall be convicted of conspiracy upon the | 232 |
| testimony of a person with whom the defendant conspired, | 233 |
| unsupported by other evidence. | 234 |
| (2) If a person with whom the defendant allegedly has | 235 |
| conspired testifies against the defendant in a case in which the | 236 |
| defendant is charged with conspiracy and if the testimony is | 237 |
| supported by other evidence, the court, when it charges the jury, | 238 |
| shall state substantially the following: | 239 |
| "The testimony of an accomplice that is supported by other | 240 |
| evidence does not become inadmissible because of the accomplice's | 241 |
| complicity, moral turpitude, or self-interest, but the admitted or | 242 |
| claimed complicity of a witness may affect the witness' | 243 |
| credibility and make the witness' testimony subject to grave | 244 |
| suspicion, and require that it be weighed with great caution. | 245 |
| It is for you, as jurors, in the light of all the facts | 246 |
| presented to you from the witness stand, to evaluate such | 247 |
| testimony and to determine its quality and worth or its lack of | 248 |
| quality and worth." | 249 |
| (3) "Conspiracy," as used in division (H)(1) of this section, | 250 |
| does not include any conspiracy that results in an attempt to | 251 |
| commit an offense or in the commission of an offense. | 252 |
| (I) The following are affirmative defenses to a charge of | 253 |
| conspiracy: | 254 |
| (1) After conspiring to commit an offense, the actor thwarted | 255 |
| the success of the conspiracy under circumstances manifesting a | 256 |
| complete and voluntary renunciation of the actor's criminal | 257 |
| purpose. | 258 |
| (2) After conspiring to commit an offense, the actor | 259 |
| abandoned the conspiracy prior to the commission of or attempt to | 260 |
| commit any offense that was the object of the conspiracy, either | 261 |
| by advising all other conspirators of the actor's abandonment, or | 262 |
| by informing any law enforcement authority of the existence of the | 263 |
| conspiracy and of the actor's participation in the conspiracy. | 264 |
| (J) Whoever violates this section is guilty of conspiracy, | 265 |
| which is one of the following: | 266 |
| (1) A felony of the first degree, when one of the objects of | 267 |
| the conspiracy is aggravated murder, murder, or an offense for | 268 |
| which the maximum penalty is imprisonment for life; | 269 |
| (2) A felony of the next lesser degree than the most serious | 270 |
| offense that is the object of the conspiracy, when the most | 271 |
| serious offense that is the object of the conspiracy is a felony | 272 |
| of the first, second, third, or fourth degree; | 273 |
| (3) A felony punishable by a fine of not more than | 274 |
| twenty-five thousand dollars or imprisonment for not more than | 275 |
| eighteen months, or both, when the offense that is the object of | 276 |
| the conspiracy is a violation of any provision of Chapter 3734. of | 277 |
| the Revised Code, other than section 3734.18 of the Revised Code, | 278 |
| that relates to hazardous wastes; | 279 |
| (4) A misdemeanor of the first degree, when the most serious | 280 |
| offense that is the object of the conspiracy is a felony of the | 281 |
| fifth degree. | 282 |
| (K) This section does not define a separate conspiracy | 283 |
| offense or penalty where conspiracy is defined as an offense by | 284 |
| one or more sections of the Revised Code, other than this section. | 285 |
| In such a case, however: | 286 |
| (1) With respect to the offense specified as the object of | 287 |
| the conspiracy in the other section or sections, division (A) of | 288 |
| this section defines the voluntary act or acts and culpable mental | 289 |
| state necessary to constitute the conspiracy; | 290 |
| (2) Divisions (B) to (I) of this section are incorporated by | 291 |
| reference in the conspiracy offense defined by the other section | 292 |
| or sections of the Revised Code. | 293 |
| (L)(1) In addition to the penalties that otherwise are | 294 |
| imposed for conspiracy, a person who is found guilty of conspiracy | 295 |
| to engage in a pattern of corrupt activity is subject to divisions | 296 |
| (B)(2), (3), (4), and (5) of section 2923.32 of the Revised Code. | 297 |
| (2) If a person is convicted of or pleads guilty to | 298 |
| conspiracy and if the most serious offense that is the object of | 299 |
| the conspiracy is a felony drug trafficking, manufacturing, | 300 |
| processing, or possession offense, in addition to the penalties or | 301 |
| sanctions that may be imposed for the conspiracy under division | 302 |
| (J)(2) or (4) of this section and Chapter 2929. of the Revised | 303 |
| Code, both of the following apply: | 304 |
| (a) The provisions of divisions (D), (F), and (G) of section | 305 |
| 2925.03, division (D) of section 2925.04, division (D) of section | 306 |
| 2925.05, division (D) of section 2925.06, and division (E) of | 307 |
| section 2925.11 of the Revised Code that pertain to mandatory and | 308 |
| additional fines, driver's or commercial driver's license or | 309 |
| permit suspensions, and professionally licensed persons and that | 310 |
| would apply under the appropriate provisions of those divisions to | 311 |
| a person who is convicted of or pleads guilty to the felony drug | 312 |
| trafficking, manufacturing, processing, or possession offense that | 313 |
| is the most serious offense that is the basis of the conspiracy | 314 |
| shall apply to the person who is convicted of or pleads guilty to | 315 |
| the conspiracy as if the person had been convicted of or pleaded | 316 |
| guilty to the felony drug trafficking, manufacturing, processing, | 317 |
| or possession offense that is the most serious offense that is the | 318 |
| basis of the conspiracy. | 319 |
| (b) The court that imposes sentence upon the person who is | 320 |
| convicted of or pleads guilty to the conspiracy shall comply with | 321 |
| the provisions identified as being applicable under division | 322 |
| (L)(2) of this section, in addition to any other penalty or | 323 |
| sanction that it imposes for the conspiracy under division (J)(2) | 324 |
| or (4) of this section and Chapter 2929. of the Revised Code. | 325 |
| (M) As used in this section: | 326 |
| (1) "Felony drug trafficking, manufacturing, processing, or | 327 |
| possession offense" means any of the following that is a felony: | 328 |
| (a) A violation of section 2925.03, 2925.04, 2925.05, or | 329 |
| 2925.06 of the Revised Code; | 330 |
| (b) A violation of section 2925.11 of the Revised Code that | 331 |
| is not a minor drug possession offense. | 332 |
| (2) "Minor drug possession offense" has the same meaning as | 333 |
| in section 2925.01 of the Revised Code. | 334 |
| Section 2. That existing section 2923.01 of the Revised Code | 335 |
| is hereby repealed. | 336 |