130th Ohio General Assembly
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(125th General Assembly)
(Substitute House Bill Number 383)



AN ACT
To amend section 2923.01 and to enact section 2913.421 of the Revised Code to prohibit a person from transmitting multiple commercial electronic mail messages, falsifying routing information in those messages, falsifying registration information for multiple electronic mail accounts, or falsifying the right to use five or more internet protocol addresses, and to prohibit unauthorized access to a computer to transmit multiple commercial electronic mail messages.

Be it enacted by the General Assembly of the State of Ohio:

SECTION 1. That section 2923.01 be amended and section 2913.421 of the Revised Code be enacted to read as follows:

Sec. 2913.421.  (A) As used in this section:

(1) "Computer," "computer network," and "computer system" have the same meanings as in section 2913.01 of the Revised Code.

(2) "Commercial electronic mail message" means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service, including content on an internet web site operated for a commercial purpose, but does not include a transactional or relationship message. The inclusion of a reference to a commercial entity or a link to the web site of a commercial entity does not, by itself, cause that message to be treated as a commercial electronic mail message for the purpose of this section, if the contents or circumstances of the message indicate a primary purpose other than commercial advertisement or promotion of a commercial product or service.

(3) "Domain name" means any alphanumeric designation that is registered with or assigned by any domain name registrar, domain name registry, or other domain name registration authority as part of an electronic address on the internet.

(4) "Electronic mail," "originating address," and "receiving address" have the same meanings as in section 2307.64 of the Revised Code.

(5) "Electronic mail message" means each electronic mail addressed to a discrete addressee.

(6) "Electronic mail service provider" means any person, including an internet service provider, that is an intermediary in sending and receiving electronic mail and that provides to the public electronic mail accounts or online user accounts from which electronic mail may be sent.

(7) "Header information" means the source, destination, and routing information attached to an electronic mail message, including the originating domain name, the originating address, and technical information that authenticates the sender of an electronic mail message for computer network security or computer network management purposes.

(8) "Initiate the transmission" or "initiated" means to originate or transmit a commercial electronic mail message or to procure the origination or transmission of that message, regardless of whether the message reaches its intended recipients, but does not include actions that constitute routine conveyance of such message.

(9) "Internet" has the same meaning as in section 341.42 of the Revised Code.

(10) "Internet protocol address" means the string of numbers by which locations on the internet are identified by routers or other computers connected to the internet.

(11) "Materially falsify" means to alter or conceal in a manner that would impair the ability of a recipient of an electronic mail message, an electronic mail service provider processing an electronic mail message on behalf of a recipient, a person alleging a violation of this section, or a law enforcement agency to identify, locate, or respond to the person that initiated the electronic mail message or to investigate an alleged violation of this section.

(12) "Multiple" means more than ten commercial electronic mail messages during a twenty-four-hour period, more than one hundred commercial electronic mail messages during a thirty-day period, or more than one thousand commercial electronic mail messages during a one-year period.

(13) "Recipient" means a person who receives a commercial electronic mail message at any one of the following receiving addresses:

(a) A receiving address furnished by an electronic mail service provider that bills for furnishing and maintaining that receiving address to a mailing address within this state;

(b) A receiving address ordinarily accessed from a computer located within this state or by a person domiciled within this state;

(c) Any other receiving address with respect to which this section can be imposed consistent with the United States Constitution.

(14) "Routine conveyance" means the transmission, routing, relaying, handling, or storing, through an automated technical process, of an electronic mail message for which another person has identified the recipients or provided the recipient addresses.

(15) "Transactional or relationship message" means an electronic mail message the primary purpose of which is to do any of the following:

(a) Facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender;

(b) Provide warranty information, product recall information, or safety or security information with respect to a commercial product or service used or purchased by the recipient;

(c) Provide notification concerning a change in the terms or features of; a change in the recipient's standing or status with respect to; or, at regular periodic intervals, account balance information or other type of account statement with respect to, a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the ongoing purchase or use by the recipient of products or services offered by the sender;

(d) Provide information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled;

(e) Deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender.

(B) No person, with regard to commercial electronic mail messages sent from or to a computer in this state, shall do any of the following:

(1) Knowingly use a computer to relay or retransmit multiple commercial electronic mail messages, with the intent to deceive or mislead recipients or any electronic mail service provider, as to the origin of those messages;

(2) Knowingly and materially falsify header information in multiple commercial electronic mail messages and purposely initiate the transmission of those messages;

(3) Knowingly register, using information that materially falsifies the identity of the actual registrant, for five or more electronic mail accounts or online user accounts or two or more domain names and purposely initiate the transmission of multiple commercial electronic mail messages from one, or any combination, of those accounts or domain names;

(4) Knowingly falsely represent the right to use five or more internet protocol addresses, and purposely initiate the transmission of multiple commercial electronic mail messages from those addresses.

(C)(1) Whoever violates division (B) of this section is guilty of illegally transmitting multiple commercial electronic mail messages. Except as otherwise provided in division (C)(2) or (E) of this section, illegally transmitting multiple commercial electronic mail messages is a felony of the fifth degree.

(2) Illegally transmitting multiple commercial electronic mail messages is a felony of the fourth degree if any of the following apply:

(a) Regarding a violation of division (B)(3) of this section, the offender, using information that materially falsifies the identity of the actual registrant, knowingly registers for twenty or more electronic mail accounts or online user accounts or ten or more domain names, and purposely initiates, or conspires to initiate, the transmission of multiple commercial electronic mail messages from the accounts or domain names.

(b) Regarding any violation of division (B) of this section, the volume of commercial electronic mail messages the offender transmitted in committing the violation exceeds two hundred and fifty during any twenty-four-hour period, two thousand five hundred during any thirty-day period, or twenty-five thousand during any one-year period.

(c) Regarding any violation of division (B) of this section, during any one-year period the aggregate loss to the victim or victims of the violation is five hundred dollars or more, or during any one-year period the aggregate value of the property or services obtained by any offender as a result of the violation is five hundred dollars or more.

(d) Regarding any violation of division (B) of this section, the offender committed the violation with three or more other persons with respect to whom the offender was the organizer or leader of the activity that resulted in the violation.

(e) Regarding any violation of division (B) of this section, the offender knowingly assisted in the violation through the provision or selection of electronic mail addresses to which the commercial electronic mail message was transmitted, if that offender knew that the electronic mail addresses of the recipients were obtained using an automated means from an internet web site or proprietary online service operated by another person, and that web site or online service included, at the time the electronic mail addresses were obtained, a notice stating that the operator of that web site or online service will not transfer addresses maintained by that web site or online service to any other party for the purposes of initiating the transmission of, or enabling others to initiate the transmission of, electronic mail messages.

(f) Regarding any violation of division (B) of this section, the offender knowingly assisted in the violation through the provision or selection of electronic mail addresses of the recipients obtained using an automated means that generates possible electronic mail addresses by combining names, letters, or numbers into numerous permutations.

(D)(1) No person, with regard to commercial electronic mail messages sent from or to a computer in this state, shall knowingly access a computer without authorization and purposely initiate the transmission of multiple commercial electronic mail messages from or through the computer.

(2) Except as otherwise provided in division (E) of this section, whoever violates division (D)(1) of this section is guilty of unauthorized access of a computer, a felony of the fourth degree.

(E) Illegally transmitting multiple commercial electronic mail messages and unauthorized access of a computer in violation of this section are felonies of the third degree if the offender previously has been convicted of a violation of this section, or a violation of a law of another state or the United States regarding the transmission of electronic mail messages or unauthorized access to a computer, or if the offender committed the violation of this section in the furtherance of a felony.

(F)(1) The attorney general or an electronic mail service provider that is injured by a violation of this section may bring a civil action in an appropriate court of common pleas of this state seeking relief from any person whose conduct violated this section. The civil action may be commenced at any time within one year of the date after the act that is the basis of the civil action.

(2) In a civil action brought by the attorney general pursuant to division (F)(1) of this section for a violation of this section, the court may award temporary, preliminary, or permanent injunctive relief. The court also may impose a civil penalty against the offender, as the court considers just, in an amount that is the lesser of: (a) twenty-five thousand dollars for each day a violation occurs, or (b) not less than two dollars but not more than eight dollars for each commercial electronic mail message initiated in violation of this section.

(3) In a civil action brought by an electronic mail service provider pursuant to division (F)(1) of this section for a violation of this section, the court may award temporary, preliminary, or permanent injunctive relief, and also may award damages in an amount equal to the greater of the following:

(a) The sum of the actual damages incurred by the electronic mail service provider as a result of a violation of this section, plus any receipts of the offender that are attributable to a violation of this section and that were not taken into account in computing actual damages;

(b) Statutory damages, as the court considers just, in an amount that is the lesser of: (i) twenty-five thousand dollars for each day a violation occurs, or (ii) not less than two dollars but not more than eight dollars for each commercial electronic mail message initiated in violation of this section.

(4) In assessing damages awarded under division (F)(3) of this section, the court may consider whether the offender has established and implemented, with due care, commercially reasonable practices and procedures designed to effectively prevent the violation, or the violation occurred despite commercially reasonable efforts to maintain the practices and procedures established.

(G) Any equipment, software, or other technology of a person who violates this section that is used or intended to be used in the commission of a violation of this section, and any real or personal property that constitutes or is traceable to the gross proceeds obtained from the commission of a violation of this section, is contraband and is subject to seizure and forfeiture pursuant to sections 2933.42 and 2933.43 of the Revised Code.

(H) The attorney general may bring a civil action, pursuant to the "CAN-SPAM Act of 2003," Pub. L. No. 108-187, 117 Stat. 2699, 15 U.S.C. 7701 et seq., on behalf of the residents of the state in a district court of the United States that has jurisdiction for a violation of the CAN-SPAM Act of 2003, but the attorney general shall not bring a civil action under both this division and division (F) of this section. If a federal court dismisses a civil action brought under this division for reasons other than upon the merits, a civil action may be brought under division (F) of this section in the appropriate court of common pleas of this state.

(I) Nothing in this section shall be construed:

(1) To require an electronic mail service provider to block, transmit, route, relay, handle, or store certain types of electronic mail messages;

(2) To prevent or limit, in any way, an electronic mail service provider from adopting a policy regarding electronic mail, including a policy of declining to transmit certain types of electronic mail messages, or from enforcing such policy through technical means, through contract, or pursuant to any remedy available under any other federal, state, or local criminal or civil law;

(3) To render lawful any policy adopted under division (I)(2) of this section that is unlawful under any other law.

Sec. 2923.01.  (A) No person, with purpose to commit or to promote or facilitate the commission of aggravated murder, murder, kidnapping, compelling prostitution, promoting prostitution, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, engaging in a pattern of corrupt activity, corrupting another with drugs, a felony drug trafficking, manufacturing, processing, or possession offense, theft of drugs, or illegal processing of drug documents, the commission of a felony offense of unauthorized use of a vehicle, illegally transmitting multiple commercial electronic mail messages or unauthorized access of a computer in violation of section 2923.421 of the Revised Code, or the commission of a violation of any provision of Chapter 3734. of the Revised Code, other than section 3734.18 of the Revised Code, that relates to hazardous wastes, shall do either of the following:

(1) With another person or persons, plan or aid in planning the commission of any of the specified offenses;

(2) Agree with another person or persons that one or more of them will engage in conduct that facilitates the commission of any of the specified offenses.

(B) No person shall be convicted of conspiracy unless a substantial overt act in furtherance of the conspiracy is alleged and proved to have been done by the accused or a person with whom the accused conspired, subsequent to the accused's entrance into the conspiracy. For purposes of this section, an overt act is substantial when it is of a character that manifests a purpose on the part of the actor that the object of the conspiracy should be completed.

(C) When the offender knows or has reasonable cause to believe that a person with whom the offender conspires also has conspired or is conspiring with another to commit the same offense, the offender is guilty of conspiring with that other person, even though the other person's identity may be unknown to the offender.

(D) It is no defense to a charge under this section that, in retrospect, commission of the offense that was the object of the conspiracy was impossible under the circumstances.

(E) A conspiracy terminates when the offense or offenses that are its objects are committed or when it is abandoned by all conspirators. In the absence of abandonment, it is no defense to a charge under this section that no offense that was the object of the conspiracy was committed.

(F) A person who conspires to commit more than one offense is guilty of only one conspiracy, when the offenses are the object of the same agreement or continuous conspiratorial relationship.

(G) When a person is convicted of committing or attempting to commit a specific offense or of complicity in the commission of or attempt to commit the specific offense, the person shall not be convicted of conspiracy involving the same offense.

(H)(1) No person shall be convicted of conspiracy upon the testimony of a person with whom the defendant conspired, unsupported by other evidence.

(2) If a person with whom the defendant allegedly has conspired testifies against the defendant in a case in which the defendant is charged with conspiracy and if the testimony is supported by other evidence, the court, when it charges the jury, shall state substantially the following:

"The testimony of an accomplice that is supported by other evidence does not become inadmissible because of the accomplice's complicity, moral turpitude, or self-interest, but the admitted or claimed complicity of a witness may affect the witness' credibility and make the witness' testimony subject to grave suspicion, and require that it be weighed with great caution.

It is for you, as jurors, in the light of all the facts presented to you from the witness stand, to evaluate such testimony and to determine its quality and worth or its lack of quality and worth."

(3) "Conspiracy," as used in division (H)(1) of this section, does not include any conspiracy that results in an attempt to commit an offense or in the commission of an offense.

(I) The following are affirmative defenses to a charge of conspiracy:

(1) After conspiring to commit an offense, the actor thwarted the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of the actor's criminal purpose.

(2) After conspiring to commit an offense, the actor abandoned the conspiracy prior to the commission of or attempt to commit any offense that was the object of the conspiracy, either by advising all other conspirators of the actor's abandonment, or by informing any law enforcement authority of the existence of the conspiracy and of the actor's participation in the conspiracy.

(J) Whoever violates this section is guilty of conspiracy, which is one of the following:

(1) A felony of the first degree, when one of the objects of the conspiracy is aggravated murder, murder, or an offense for which the maximum penalty is imprisonment for life;

(2) A felony of the next lesser degree than the most serious offense that is the object of the conspiracy, when the most serious offense that is the object of the conspiracy is a felony of the first, second, third, or fourth degree;

(3) A felony punishable by a fine of not more than twenty-five thousand dollars or imprisonment for not more than eighteen months, or both, when the offense that is the object of the conspiracy is a violation of any provision of Chapter 3734. of the Revised Code, other than section 3734.18 of the Revised Code, that relates to hazardous wastes;

(4) A misdemeanor of the first degree, when the most serious offense that is the object of the conspiracy is a felony of the fifth degree.

(K) This section does not define a separate conspiracy offense or penalty where conspiracy is defined as an offense by one or more sections of the Revised Code, other than this section. In such a case, however:

(1) With respect to the offense specified as the object of the conspiracy in the other section or sections, division (A) of this section defines the voluntary act or acts and culpable mental state necessary to constitute the conspiracy;

(2) Divisions (B) to (I) of this section are incorporated by reference in the conspiracy offense defined by the other section or sections of the Revised Code.

(L)(1) In addition to the penalties that otherwise are imposed for conspiracy, a person who is found guilty of conspiracy to engage in a pattern of corrupt activity is subject to divisions (B)(2), (3), (4), and (5) of section 2923.32 of the Revised Code.

(2) If a person is convicted of or pleads guilty to conspiracy and if the most serious offense that is the object of the conspiracy is a felony drug trafficking, manufacturing, processing, or possession offense, in addition to the penalties or sanctions that may be imposed for the conspiracy under division (J)(2) or (4) of this section and Chapter 2929. of the Revised Code, both of the following apply:

(a) The provisions of divisions (D), (F), and (G) of section 2925.03, division (D) of section 2925.04, division (D) of section 2925.05, division (D) of section 2925.06, and division (E) of section 2925.11 of the Revised Code that pertain to mandatory and additional fines, driver's or commercial driver's license or permit suspensions, and professionally licensed persons and that would apply under the appropriate provisions of those divisions to a person who is convicted of or pleads guilty to the felony drug trafficking, manufacturing, processing, or possession offense that is the most serious offense that is the basis of the conspiracy shall apply to the person who is convicted of or pleads guilty to the conspiracy as if the person had been convicted of or pleaded guilty to the felony drug trafficking, manufacturing, processing, or possession offense that is the most serious offense that is the basis of the conspiracy.

(b) The court that imposes sentence upon the person who is convicted of or pleads guilty to the conspiracy shall comply with the provisions identified as being applicable under division (L)(2) of this section, in addition to any other penalty or sanction that it imposes for the conspiracy under division (J)(2) or (4) of this section and Chapter 2929. of the Revised Code.

(M) As used in this section:

(1) "Felony drug trafficking, manufacturing, processing, or possession offense" means any of the following that is a felony:

(a) A violation of section 2925.03, 2925.04, 2925.05, or 2925.06 of the Revised Code;

(b) A violation of section 2925.11 of the Revised Code that is not a minor drug possession offense.

(2) "Minor drug possession offense" has the same meaning as in section 2925.01 of the Revised Code.

SECTION 2. That existing section 2923.01 of the Revised Code is hereby repealed.

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