CHAPTER 135

FORMERLY

HOUSE SUBSTITUTE NO. 1

FOR

HOUSE BILL NO. 242

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO COMPUTER RELATED OFFENSES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

Section 1. Amend Title 11 of the Delaware Code by renumbering the existing Sections 937 through 939 as Sections 939 through 941, and inserting as new: “§ 937 Un-requested or unauthorized Electronic Mail or use of network or software to cause same.” and “§ 938 Failure to promptly cease electronic communication upon request” as follows:

Ҥ 937. Un-requested or Unauthorized Electronic Mail or use of network or software to cause same.

A person is guilty of the computer crime of un-requested or unauthorized electronic mail:

(a) when that person, without authorization, intentionally or recklessly distributes any unsolicited bulk commercial electronic mail (commercial E-mail) to any receiving address or account under the control of any authorized user of a computer system. This section shall not apply to electronic mail that is sent between human beings, or when the individual has requested said information. This section shall not apply to the transmission of electronic mail from an organization to its members or where there is a pre-existing business relationship. No Internet/interactive service provider shall be liable for merely transmitting an unsolicited, bulk commercial electronic mail message in its network. No Internet/interactive service provider shall be held liable for any action voluntarily taken in good faith to block the receipt or transmission through its service of any unsolicited, bulk electronic mail which it believes is, or will be, sent in violation to disconnect or terminate the service of any person that is in violation of this article; or

(b) When a person uses a computer or computer network without authority with the intent to: falsify or forge electronic mail transmission information in any manner in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider or its subscribers; or

(c) When a person sells, gives or otherwise distributes or possesses with the intent to sell, give or distribute software which:

(i) is primarily designed or produced for the purpose of facilitating or enabling the falsification of electronic mail transmission information or other routing information;

(ii) has only limited commercially significant purpose or use other than to facilitate or enable the falsification of electronic mail transmission information or other routing information; or

(iii) is marketed by that person or another acting in concert with that person’s knowledge for use in facilitating or enabling the falsification of electronic mail transmission information or other routing information.

(d) For the purposes of this section, conduct occurring outside of the State shall be sufficient to constitute this offense if such conduct is within the terms of § 204 of this title, or if the receiving address or account was under the control of any authorized user of a computer system who was located in Delaware at the time he or she received the electronic mail or communication and the defendant was aware of circumstances which rendered the presence of such authorized user in Delaware a reasonable possibility.”

§ 938. Failure to promptly cease electronic communication upon request.

(a) A person is guilty of the computer crime of failure to promptly cease electronic communication upon request when that person intentionally, recklessly or negligently, fails to stop sending commercial electronic mail to any receiving address or account under the control of any authorized user of a computer system after being requested to do so. All commercial electronic mail sent to any receiving address within the State shall have information to the recipient on how to unsubscribe or stop further receipt of commercial electronic mail from the sender.

(b) For the purposes of this section, conduct occurring outside of the State shall be sufficient to constitute this offense if such conduct is within the terms of § 204 of this title, or if the receiving address or account was under the control of any authorized user of a computer system who was located in Delaware at the time he or she received the electronic mail or communication and the defendant was aware of circumstances which rendered the presence of such authorized user in Delaware a reasonable possibility.”

Section 2. Amend the renumbered Sections 939, 940 and 941 of Title 11 of the Delaware Code by deleting the numbers “932-936” where they appear in the sections and replacing thereto with “932-938”.

Section 3. Amend § 931 of Title 11 of the Delaware Code by inserting after the word “data” in subsection 11 the following:

(12) ‘Electronic mail’ or ‘e-mail’ means any message that is automatically passed from an originating address or account to a receiving address or account;

(13) ‘Originating address’ or ‘originating account’ means the string used to specify the source of any electronic mail message (e.g. company@sender.com);

(14) “Receiving address’ or ‘receiving account’ means the string used to specify the destination of any electronic mail message (e.g. person@receiver.com);

(15) ‘Electronic Mail service provider’ means any person who:

(i) is an intermediary in sending and receiving electronic mail; and

(ii) provides to end-users of electronic mail services the ability to send or receive electronic mail.

(16) The ‘Internet’ is a hierarchy of computer networks and systems that includes, but is not limited to, commercial (.com or .co), university (.ac or .edu) and other research networks (.org, .net) and military (.mil) networks and spans many different physical networks and systems around the world.

(17) ‘Commercial Electronic Mail’ or ‘ Commercial E-mail’ means any electronic mail message that is sent to a receiving address or account for the purposes of advertising, promoting, marketing or otherwise attempting to solicit interest in any good service or enterprise.”

Approved July 02,1999