130th Ohio General Assembly
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H. B. No. 383As Introduced
As Introduced

125th General Assembly
Regular Session
2003-2004
H. B. No. 383


REPRESENTATIVES Walcher, D. Evans, Aslanides, Wagner, McGregor, Reidelbach, Fessler, Price, Wolpert, Olman, Kearns, Setzer, Webster, Hagan, Collier, Schaffer, Widener, Distel



A BILL
To amend section 2923.01 and to enact section 2913.421 of the Revised Code to prohibit a person from transmitting multiple electronic mail advertisements, falsifying the originating address or other routing information in multiple electronic mail advertisements, or falsifying registration information for multiple electronic mail accounts, and to prohibit unauthorized access to a public computer to transmit multiple electronic mail advertisements.

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) "Advertisement" has the same meaning as in section 4931.55 of the Revised Code.
(2) "Computer," "computer network," and "computer system" have the same meanings as in section 2913.01 of the Revised Code.
(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, and that is included in an electronic mail message.
(4) "Electronic mail," "electronic mail advertisement," "electronic mail service provider," "originating address," and "recipient" 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) "Financial institution" has the same meaning as in section 122.39 of the Revised Code.
(7) "Header information" means the source, destination, and routing information attached to an electronic mail message, including the originating domain name, the originating electronic mail address, and technical information that authenticates the sender of an electronic mail message for network security or network management purposes.
(8) "Initiate the transmission" means to originate an electronic mail message or to procure the origination of that electronic mail message, regardless of whether the electronic mail message reaches its intended recipients, and does not include the actions of an electronic mail service provider used by another person for the transmission, routing, relaying, handling, or storing, through an automatic technical process, of an electronic mail message for which another person has provided and selected the recipient electronic mail address.
(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 advertisement, an electronic mail service provider processing an electronic mail message on behalf of a recipient, a person alleging a violation of section 2913.421 of the Revised Code, or a law enforcement agency to identify, locate, or respond to a person that initiated an electronic mail message or to investigate an alleged violation of section 2913.421 of the Revised Code.
(12) "Multiple" means more than ten electronic mail messages during a twenty-four-hour period, more than one hundred electronic mail messages during a thirty-day period, or more than one thousand messages during a one-year period.
(13) "Protected computer" means any of the following:
(a) A computer exclusively for the use of state government or a financial institution;
(b) A computer used by or for state government or a financial institution when the conduct constituting the violation of division (B) of this section affects that use by or for the state government or financial institution;
(c) A computer that is used in intrastate or interstate communication.
(B) No person, with regard to electronic mail advertisements sent from or to a protected computer in this state, shall do any of the following:
(1) Knowingly use a protected computer to relay or retransmit multiple electronic mail advertisements, with the intent to deceive or mislead recipients or any electronic mail service provider, as to the origin of those advertisements;
(2) Knowingly and materially falsify header information in multiple electronic mail advertisements and purposely initiate the transmission of those advertisements;
(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 electronic mail advertisements 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 electronic mail advertisements from those addresses.
(5) Knowingly access a protected computer without authorization and purposely initiate the transmission of multiple electronic mail advertisements from or through the protected computer.
(C)(1) Whoever violates division (B)(1), (2), (3), or (4) of this section is guilty of illegally transmitting multiple electronic mail advertisements. Except as otherwise provided in division (C)(2) or (4) of this section, illegally transmitting multiple electronic mail advertisements is a felony of the fourth degree.
(2) Illegally transmitting multiple electronic mail advertisements is a felony of the third 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 electronic mail advertisements from the accounts or domain names.
(b) Regarding any violation of division (B)(1), (2), (3), or (4) of this section, the volume of electronic mail advertisements 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)(1), (2), (3), or (4) 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)(1), (2), (3), or (4) 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.
(3) Except as otherwise provided in division (C)(4) of this section, whoever violates division (B)(5) of this section is guilty of unauthorized access of a protected computer, a felony of the third degree.
(4) Illegally transmitting multiple electronic mail advertisements and unauthorized access of a protected computer in violation of this section are felonies of the second 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 multiple electronic mail advertisements or unauthorized access to a computer system, or if the offender committed the violation of this section in the furtherance of a felony.
(D)(1) The attorney general, or any person engaged in the business of an electronic mail service provider that is injured by a violation of this section, may bring a civil action in an appropriate court seeking relief from any person whose conduct violated section 2913.421 of the Revised Code. The civil action may be commenced at any time within two years 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 (D)(1) of this section, the court may award temporary, preliminary, or permanent injunctive relief. The court may also impose a civil penalty against the offender in an amount not to exceed twenty-five thousand dollars for each day a violation occurs, or not less than two dollars but not more than eight dollars for each electronic mail advertisement that is initiated in violation of this section, as the court considers just.
(3) In any civil action brought by a person engaged in the business of an electronic mail service provider pursuant to division (D)(1) 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 person engaged in the business of an electronic mail service provider as a result of the violation of this section, plus any receipts of the offender that are attributable to the violation of this section and that were not taken into account in computing actual damages;
(b) Statutory damages in an amount not exceeding twenty-five thousand dollars for each day a violation occurs, or not less than two dollars but not more than eight dollars for each electronic mail advertisement initiated in violation of this section.
(E) 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.
(F) The attorney general may bring a civil action, pursuant to the CAN-SPAM Act of 2003, Pub. L. No. 108-187, on behalf of the residents of the state in a district court of the United States that has jurisdiction for a violation of this section or a violation of Pub. L. No. 108-187.
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, unauthorized access of a protected computer, illegally transmitting multiple electronic mail advertisements, 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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