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| To amend section 2923.01 and to enact section | 1 |
| 2913.421 of the Revised Code to prohibit a person | 2 |
| from transmitting multiple commercial electronic | 3 |
| mail messages, falsifying routing information in | 4 |
| those messages, falsifying registration | 5 |
| information for multiple electronic mail accounts, | 6 |
| or falsifying the right to use five or more | 7 |
| internet protocol addresses, and to prohibit | 8 |
| unauthorized access to a computer to transmit | 9 |
| multiple commercial electronic mail messages. | 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) "Computer," "computer network," and "computer system" | 14 |
| have the same meanings as in section 2913.01 of the Revised Code. | 15 |
| (2) "Commercial electronic mail message" means any electronic | 16 |
| mail message the primary purpose of which is the commercial | 17 |
| advertisement or promotion of a commercial product or service, | 18 |
| including content on an internet web site operated for a | 19 |
| commercial purpose, but does not include a transactional or | 20 |
| relationship message. The inclusion of a reference to a commercial | 21 |
| entity or a link to the web site of a commercial entity does not, | 22 |
| by itself, cause that message to be treated as a commercial | 23 |
| electronic mail message for the purpose of this section, if the | 24 |
| contents or circumstances of the message indicate a primary | 25 |
| purpose other than commercial advertisement or promotion of a | 26 |
| commercial product or service. | 27 |
| (3) "Domain name" means any alphanumeric designation that is | 28 |
| registered with or assigned by any domain name registrar, domain | 29 |
| name registry, or other domain name registration authority as part | 30 |
| of an electronic address on the internet. | 31 |
| (4) "Electronic mail," "originating address," and "receiving | 32 |
| address" have the same meanings as in section 2307.64 of the | 33 |
| Revised Code. | 34 |
| (5) "Electronic mail message" means each electronic mail | 35 |
| addressed to a discrete addressee. | 36 |
| (6) "Electronic mail service provider" means any person, | 37 |
| including an internet service provider, that is an intermediary in | 38 |
| sending and receiving electronic mail and that provides to the | 39 |
| public electronic mail accounts or online user accounts from which | 40 |
| electronic mail may be sent. | 41 |
| (7) "Header information" means the source, destination, and | 42 |
| routing information attached to an electronic mail message, | 43 |
| including the originating domain name, the originating address, | 44 |
| and technical information that authenticates the sender of an | 45 |
| electronic mail message for computer network security or computer | 46 |
| network management purposes. | 47 |
| (8) "Initiate the transmission" or "initiated" means to | 48 |
| originate or transmit a commercial electronic mail message or to | 49 |
| procure the origination or transmission of that message, | 50 |
| regardless of whether the message reaches its intended recipients, | 51 |
| but does not include actions that constitute routine conveyance of | 52 |
| such message. | 53 |
| (9) "Internet" has the same meaning as in section 341.42 of | 54 |
| the Revised Code. | 55 |
| (10) "Internet protocol address" means the string of numbers | 56 |
| by which locations on the internet are identified by routers or | 57 |
| other computers connected to the internet. | 58 |
| (11) "Materially falsify" means to alter or conceal in a | 59 |
| manner that would impair the ability of a recipient of an | 60 |
| electronic mail message, an electronic mail service provider | 61 |
| processing an electronic mail message on behalf of a recipient, a | 62 |
| person alleging a violation of this section, or a law enforcement | 63 |
| agency to identify, locate, or respond to the person that | 64 |
| initiated the electronic mail message or to investigate an alleged | 65 |
| violation of this section. | 66 |
| (12) "Multiple" means more than ten commercial electronic | 67 |
| mail messages during a twenty-four-hour period, more than one | 68 |
| hundred commercial electronic mail messages during a thirty-day | 69 |
| period, or more than one thousand commercial electronic mail | 70 |
| messages during a one-year period. | 71 |
| (13) "Recipient" means a person who receives a commercial | 72 |
| electronic mail message at any one of the following receiving | 73 |
| addresses: | 74 |
| (a) A receiving address furnished by an electronic mail | 75 |
| service provider that bills for furnishing and maintaining that | 76 |
| receiving address to a mailing address within this state; | 77 |
| (b) A receiving address ordinarily accessed from a computer | 78 |
| located within this state or by a person domiciled within this | 79 |
| state; | 80 |
| (c) Any other receiving address with respect to which this | 81 |
| section can be imposed consistent with the United States | 82 |
| Constitution. | 83 |
| (14) "Routine conveyance" means the transmission, routing, | 84 |
| relaying, handling, or storing, through an automated technical | 85 |
| process, of an electronic mail message for which another person | 86 |
| has identified the recipients or provided the recipient addresses. | 87 |
| (15) "Transactional or relationship message" means an | 88 |
| electronic mail message the primary purpose of which is to do any | 89 |
| of the following: | 90 |
| (a) Facilitate, complete, or confirm a commercial transaction | 91 |
| that the recipient has previously agreed to enter into with the | 92 |
| sender; | 93 |
| (b) Provide warranty information, product recall information, | 94 |
| or safety or security information with respect to a commercial | 95 |
| product or service used or purchased by the recipient; | 96 |
| (c) Provide notification concerning a change in the terms or | 97 |
| features of; a change in the recipient's standing or status with | 98 |
| respect to; or, at regular periodic intervals, account balance | 99 |
| information or other type of account statement with respect to, a | 100 |
| subscription, membership, account, loan, or comparable ongoing | 101 |
| commercial relationship involving the ongoing purchase or use by | 102 |
| the recipient of products or services offered by the sender; | 103 |
| (d) Provide information directly related to an employment | 104 |
| relationship or related benefit plan in which the recipient is | 105 |
| currently involved, participating, or enrolled; | 106 |
| (e) Deliver goods or services, including product updates or | 107 |
| upgrades, that the recipient is entitled to receive under the | 108 |
| terms of a transaction that the recipient has previously agreed to | 109 |
| enter into with the sender. | 110 |
| (B) No person, with regard to commercial electronic mail | 111 |
| messages sent from or to a computer in this state, shall do any of | 112 |
| the following: | 113 |
| (1) Knowingly use a computer to relay or retransmit multiple | 114 |
| commercial electronic mail messages, with the intent to deceive or | 115 |
| mislead recipients or any electronic mail service provider, as to | 116 |
| the origin of those messages; | 117 |
| (2) Knowingly and materially falsify header information in | 118 |
| multiple commercial electronic mail messages and purposely | 119 |
| initiate the transmission of those messages; | 120 |
| (3) Knowingly register, using information that materially | 121 |
| falsifies the identity of the actual registrant, for five or more | 122 |
| electronic mail accounts or online user accounts or two or more | 123 |
| domain names and purposely initiate the transmission of multiple | 124 |
| commercial electronic mail messages from one, or any combination, | 125 |
| of those accounts or domain names; | 126 |
| (4) Knowingly falsely represent the right to use five or more | 127 |
| internet protocol addresses, and purposely initiate the | 128 |
| transmission of multiple commercial electronic mail messages from | 129 |
| those addresses. | 130 |
| (C)(1) Whoever violates division (B) of this section is | 131 |
| guilty of illegally transmitting multiple commercial electronic | 132 |
| mail messages. Except as otherwise provided in division (C)(2) or | 133 |
| (E) of this section, illegally transmitting multiple commercial | 134 |
| electronic mail messages is a felony of the fifth degree. | 135 |
| (2) Illegally transmitting multiple commercial electronic | 136 |
| mail messages is a felony of the fourth degree if any of the | 137 |
| following apply: | 138 |
| (a) Regarding a violation of division (B)(3) of this section, | 139 |
| the offender, using information that materially falsifies the | 140 |
| identity of the actual registrant, knowingly registers for twenty | 141 |
| or more electronic mail accounts or online user accounts or ten or | 142 |
| more domain names, and purposely initiates, or conspires to | 143 |
| initiate, the transmission of multiple commercial electronic mail | 144 |
| messages from the accounts or domain names. | 145 |
| (b) Regarding any violation of division (B) of this section, | 146 |
| the volume of commercial electronic mail messages the offender | 147 |
| transmitted in committing the violation exceeds two hundred and | 148 |
| fifty during any twenty-four-hour period, two thousand five | 149 |
| hundred during any thirty-day period, or twenty-five thousand | 150 |
| during any one-year period. | 151 |
| (c) Regarding any violation of division (B) of this section, | 152 |
| during any one-year period the aggregate loss to the victim or | 153 |
| victims of the violation is five hundred dollars or more, or | 154 |
| during any one-year period the aggregate value of the property or | 155 |
| services obtained by any offender as a result of the violation is | 156 |
| five hundred dollars or more. | 157 |
| (d) Regarding any violation of division (B) of this section, | 158 |
| the offender committed the violation with three or more other | 159 |
| persons with respect to whom the offender was the organizer or | 160 |
| leader of the activity that resulted in the violation. | 161 |
| (e) Regarding any violation of division (B) of this section, | 162 |
| the offender knowingly assisted in the violation through the | 163 |
| provision or selection of electronic mail addresses to which the | 164 |
| commercial electronic mail message was transmitted, if that | 165 |
| offender knew that the electronic mail addresses of the recipients | 166 |
| were obtained using an automated means from an internet web site | 167 |
| or proprietary online service operated by another person, and that | 168 |
| web site or online service included, at the time the electronic | 169 |
| mail addresses were obtained, a notice stating that the operator | 170 |
| of that web site or online service will not transfer addresses | 171 |
| maintained by that web site or online service to any other party | 172 |
| for the purposes of initiating the transmission of, or enabling | 173 |
| others to initiate the transmission of, electronic mail messages. | 174 |
| (f) Regarding any violation of division (B) of this section, | 175 |
| the offender knowingly assisted in the violation through the | 176 |
| provision or selection of electronic mail addresses of the | 177 |
| recipients obtained using an automated means that generates | 178 |
| possible electronic mail addresses by combining names, letters, or | 179 |
| numbers into numerous permutations. | 180 |
| (D)(1) No person, with regard to commercial electronic mail | 181 |
| messages sent from or to a computer in this state, shall knowingly | 182 |
| access a computer without authorization and purposely initiate the | 183 |
| transmission of multiple commercial electronic mail messages from | 184 |
| or through the computer. | 185 |
| (2) Except as otherwise provided in division (E) of this | 186 |
| section, whoever violates division (D)(1) of this section is | 187 |
| guilty of unauthorized access of a computer, a felony of the | 188 |
| fourth degree. | 189 |
| (E) Illegally transmitting multiple commercial electronic | 190 |
| mail messages and unauthorized access of a computer in violation | 191 |
| of this section are felonies of the third degree if the offender | 192 |
| previously has been convicted of a violation of this section, or a | 193 |
| violation of a law of another state or the United States regarding | 194 |
| the transmission of electronic mail messages or unauthorized | 195 |
| access to a computer, or if the offender committed the violation | 196 |
| of this section in the furtherance of a felony. | 197 |
| (F)(1) The attorney general or an electronic mail service | 198 |
| provider that is injured by a violation of this section may bring | 199 |
| a civil action in an appropriate court of common pleas of this | 200 |
| state seeking relief from any person whose conduct violated this | 201 |
| section. The civil action may be commenced at any time within one | 202 |
| year of the date after the act that is the basis of the civil | 203 |
| action. | 204 |
| (2) In a civil action brought by the attorney general | 205 |
| pursuant to division (F)(1) of this section for a violation of | 206 |
| this section, the court may award temporary, preliminary, or | 207 |
| permanent injunctive relief. The court also may impose a civil | 208 |
| penalty against the offender, as the court considers just, in an | 209 |
| amount that is the lesser of: (a) twenty-five thousand dollars for | 210 |
| each day a violation occurs, or (b) not less than two dollars but | 211 |
| not more than eight dollars for each commercial electronic mail | 212 |
| message initiated in violation of this section. | 213 |
| (3) In a civil action brought by an electronic mail service | 214 |
| provider pursuant to division (F)(1) of this section for a | 215 |
| violation of this section, the court may award temporary, | 216 |
| preliminary, or permanent injunctive relief, and also may award | 217 |
| damages in an amount equal to the greater of the following: | 218 |
| (a) The sum of the actual damages incurred by the electronic | 219 |
| mail service provider as a result of a violation of this section, | 220 |
| plus any receipts of the offender that are attributable to a | 221 |
| violation of this section and that were not taken into account in | 222 |
| computing actual damages; | 223 |
| (b) Statutory damages, as the court considers just, in an | 224 |
| amount that is the lesser of: (i) twenty-five thousand dollars for | 225 |
| each day a violation occurs, or (ii) not less than two dollars but | 226 |
| not more than eight dollars for each commercial electronic mail | 227 |
| message initiated in violation of this section. | 228 |
| (4) In assessing damages awarded under division (F)(3) of | 229 |
| this section, the court may consider whether the offender has | 230 |
| established and implemented, with due care, commercially | 231 |
| reasonable practices and procedures designed to effectively | 232 |
| prevent the violation, or the violation occurred despite | 233 |
| commercially reasonable efforts to maintain the practices and | 234 |
| procedures established. | 235 |
| (G) Any equipment, software, or other technology of a person | 236 |
| who violates this section that is used or intended to be used in | 237 |
| the commission of a violation of this section, and any real or | 238 |
| personal property that constitutes or is traceable to the gross | 239 |
| proceeds obtained from the commission of a violation of this | 240 |
| section, is contraband and is subject to seizure and forfeiture | 241 |
| pursuant to sections 2933.42 and 2933.43 of the Revised Code. | 242 |
| (H) The attorney general may bring a civil action, pursuant | 243 |
| to the "CAN-SPAM Act of 2003," Pub. L. No. 108-187, 117 Stat. | 244 |
| 2699, 15 U.S.C. 7701 et seq., on behalf of the residents of the | 245 |
| state in a district court of the United States that has | 246 |
| jurisdiction for a violation of the CAN-SPAM Act of 2003, but the | 247 |
| attorney general shall not bring a civil action under both this | 248 |
| division and division (F) of this section. If a federal court | 249 |
| dismisses a civil action brought under this division for reasons | 250 |
| other than upon the merits, a civil action may be brought under | 251 |
| division (F) of this section in the appropriate court of common | 252 |
| pleas of this state. | 253 |
| (I) Nothing in this section shall be construed: | 254 |
| (1) To require an electronic mail service provider to block, | 255 |
| transmit, route, relay, handle, or store certain types of | 256 |
| electronic mail messages; | 257 |
| (2) To prevent or limit, in any way, an electronic mail | 258 |
| service provider from adopting a policy regarding electronic mail, | 259 |
| including a policy of declining to transmit certain types of | 260 |
| electronic mail messages, or from enforcing such policy through | 261 |
| technical means, through contract, or pursuant to any remedy | 262 |
| available under any other federal, state, or local criminal or | 263 |
| civil law; | 264 |
| (3) To render lawful any policy adopted under division (I)(2) | 265 |
| of this section that is unlawful under any other law. | 266 |
| Sec. 2923.01. (A) No person, with purpose to commit or to | 267 |
| promote or facilitate the commission of aggravated murder, murder, | 268 |
| kidnapping, compelling prostitution, promoting prostitution, | 269 |
| aggravated arson, arson, aggravated robbery, robbery, aggravated | 270 |
| burglary, burglary, engaging in a pattern of corrupt activity, | 271 |
| corrupting another with drugs, a felony drug trafficking, | 272 |
| manufacturing, processing, or possession offense, theft of drugs, | 273 |
| or illegal processing of drug documents, the commission of a | 274 |
| felony offense of unauthorized use of a vehicle, illegally | 275 |
| transmitting multiple commercial electronic mail messages or | 276 |
| unauthorized access of a computer in violation of section 2923.421 | 277 |
| of the Revised Code, or the commission of a violation of any | 278 |
| provision of Chapter 3734. of the Revised Code, other than section | 279 |
| 3734.18 of the Revised Code, that relates to hazardous wastes, | 280 |
| shall do either of the following: | 281 |
| (1) With another person or persons, plan or aid in planning | 282 |
| the commission of any of the specified offenses; | 283 |
| (2) Agree with another person or persons that one or more of | 284 |
| them will engage in conduct that facilitates the commission of any | 285 |
| of the specified offenses. | 286 |
| (B) No person shall be convicted of conspiracy unless a | 287 |
| substantial overt act in furtherance of the conspiracy is alleged | 288 |
| and proved to have been done by the accused or a person with whom | 289 |
| the accused conspired, subsequent to the accused's entrance into | 290 |
| the conspiracy. For purposes of this section, an overt act is | 291 |
| substantial when it is of a character that manifests a purpose on | 292 |
| the part of the actor that the object of the conspiracy should be | 293 |
| completed. | 294 |
| (C) When the offender knows or has reasonable cause to | 295 |
| believe that a person with whom the offender conspires also has | 296 |
| conspired or is conspiring with another to commit the same | 297 |
| offense, the offender is guilty of conspiring with that other | 298 |
| person, even though the other person's identity may be unknown to | 299 |
| the offender. | 300 |
| (D) It is no defense to a charge under this section that, in | 301 |
| retrospect, commission of the offense that was the object of the | 302 |
| conspiracy was impossible under the circumstances. | 303 |
| (E) A conspiracy terminates when the offense or offenses that | 304 |
| are its objects are committed or when it is abandoned by all | 305 |
| conspirators. In the absence of abandonment, it is no defense to a | 306 |
| charge under this section that no offense that was the object of | 307 |
| the conspiracy was committed. | 308 |
| (F) A person who conspires to commit more than one offense is | 309 |
| guilty of only one conspiracy, when the offenses are the object of | 310 |
| the same agreement or continuous conspiratorial relationship. | 311 |
| (G) When a person is convicted of committing or attempting to | 312 |
| commit a specific offense or of complicity in the commission of or | 313 |
| attempt to commit the specific offense, the person shall not be | 314 |
| convicted of conspiracy involving the same offense. | 315 |
| (H)(1) No person shall be convicted of conspiracy upon the | 316 |
| testimony of a person with whom the defendant conspired, | 317 |
| unsupported by other evidence. | 318 |
| (2) If a person with whom the defendant allegedly has | 319 |
| conspired testifies against the defendant in a case in which the | 320 |
| defendant is charged with conspiracy and if the testimony is | 321 |
| supported by other evidence, the court, when it charges the jury, | 322 |
| shall state substantially the following: | 323 |
| "The testimony of an accomplice that is supported by other | 324 |
| evidence does not become inadmissible because of the accomplice's | 325 |
| complicity, moral turpitude, or self-interest, but the admitted or | 326 |
| claimed complicity of a witness may affect the witness' | 327 |
| credibility and make the witness' testimony subject to grave | 328 |
| suspicion, and require that it be weighed with great caution. | 329 |
| It is for you, as jurors, in the light of all the facts | 330 |
| presented to you from the witness stand, to evaluate such | 331 |
| testimony and to determine its quality and worth or its lack of | 332 |
| quality and worth." | 333 |
| (3) "Conspiracy," as used in division (H)(1) of this section, | 334 |
| does not include any conspiracy that results in an attempt to | 335 |
| commit an offense or in the commission of an offense. | 336 |
| (I) The following are affirmative defenses to a charge of | 337 |
| conspiracy: | 338 |
| (1) After conspiring to commit an offense, the actor thwarted | 339 |
| the success of the conspiracy under circumstances manifesting a | 340 |
| complete and voluntary renunciation of the actor's criminal | 341 |
| purpose. | 342 |
| (2) After conspiring to commit an offense, the actor | 343 |
| abandoned the conspiracy prior to the commission of or attempt to | 344 |
| commit any offense that was the object of the conspiracy, either | 345 |
| by advising all other conspirators of the actor's abandonment, or | 346 |
| by informing any law enforcement authority of the existence of the | 347 |
| conspiracy and of the actor's participation in the conspiracy. | 348 |
| (J) Whoever violates this section is guilty of conspiracy, | 349 |
| which is one of the following: | 350 |
| (1) A felony of the first degree, when one of the objects of | 351 |
| the conspiracy is aggravated murder, murder, or an offense for | 352 |
| which the maximum penalty is imprisonment for life; | 353 |
| (2) A felony of the next lesser degree than the most serious | 354 |
| offense that is the object of the conspiracy, when the most | 355 |
| serious offense that is the object of the conspiracy is a felony | 356 |
| of the first, second, third, or fourth degree; | 357 |
| (3) A felony punishable by a fine of not more than | 358 |
| twenty-five thousand dollars or imprisonment for not more than | 359 |
| eighteen months, or both, when the offense that is the object of | 360 |
| the conspiracy is a violation of any provision of Chapter 3734. of | 361 |
| the Revised Code, other than section 3734.18 of the Revised Code, | 362 |
| that relates to hazardous wastes; | 363 |
| (4) A misdemeanor of the first degree, when the most serious | 364 |
| offense that is the object of the conspiracy is a felony of the | 365 |
| fifth degree. | 366 |
| (K) This section does not define a separate conspiracy | 367 |
| offense or penalty where conspiracy is defined as an offense by | 368 |
| one or more sections of the Revised Code, other than this section. | 369 |
| In such a case, however: | 370 |
| (1) With respect to the offense specified as the object of | 371 |
| the conspiracy in the other section or sections, division (A) of | 372 |
| this section defines the voluntary act or acts and culpable mental | 373 |
| state necessary to constitute the conspiracy; | 374 |
| (2) Divisions (B) to (I) of this section are incorporated by | 375 |
| reference in the conspiracy offense defined by the other section | 376 |
| or sections of the Revised Code. | 377 |
| (L)(1) In addition to the penalties that otherwise are | 378 |
| imposed for conspiracy, a person who is found guilty of conspiracy | 379 |
| to engage in a pattern of corrupt activity is subject to divisions | 380 |
| (B)(2), (3), (4), and (5) of section 2923.32 of the Revised Code. | 381 |
| (2) If a person is convicted of or pleads guilty to | 382 |
| conspiracy and if the most serious offense that is the object of | 383 |
| the conspiracy is a felony drug trafficking, manufacturing, | 384 |
| processing, or possession offense, in addition to the penalties or | 385 |
| sanctions that may be imposed for the conspiracy under division | 386 |
| (J)(2) or (4) of this section and Chapter 2929. of the Revised | 387 |
| Code, both of the following apply: | 388 |
| (a) The provisions of divisions (D), (F), and (G) of section | 389 |
| 2925.03, division (D) of section 2925.04, division (D) of section | 390 |
| 2925.05, division (D) of section 2925.06, and division (E) of | 391 |
| section 2925.11 of the Revised Code that pertain to mandatory and | 392 |
| additional fines, driver's or commercial driver's license or | 393 |
| permit suspensions, and professionally licensed persons and that | 394 |
| would apply under the appropriate provisions of those divisions to | 395 |
| a person who is convicted of or pleads guilty to the felony drug | 396 |
| trafficking, manufacturing, processing, or possession offense that | 397 |
| is the most serious offense that is the basis of the conspiracy | 398 |
| shall apply to the person who is convicted of or pleads guilty to | 399 |
| the conspiracy as if the person had been convicted of or pleaded | 400 |
| guilty to the felony drug trafficking, manufacturing, processing, | 401 |
| or possession offense that is the most serious offense that is the | 402 |
| basis of the conspiracy. | 403 |
| (b) The court that imposes sentence upon the person who is | 404 |
| convicted of or pleads guilty to the conspiracy shall comply with | 405 |
| the provisions identified as being applicable under division | 406 |
| (L)(2) of this section, in addition to any other penalty or | 407 |
| sanction that it imposes for the conspiracy under division (J)(2) | 408 |
| or (4) of this section and Chapter 2929. of the Revised Code. | 409 |
| (M) As used in this section: | 410 |
| (1) "Felony drug trafficking, manufacturing, processing, or | 411 |
| possession offense" means any of the following that is a felony: | 412 |
| (a) A violation of section 2925.03, 2925.04, 2925.05, or | 413 |
| 2925.06 of the Revised Code; | 414 |
| (b) A violation of section 2925.11 of the Revised Code that | 415 |
| is not a minor drug possession offense. | 416 |
| (2) "Minor drug possession offense" has the same meaning as | 417 |
| in section 2925.01 of the Revised Code. | 418 |
| Section 2. That existing section 2923.01 of the Revised Code | 419 |
| is hereby repealed. | 420 |