CHAPTER 140 Substitute for SENATE BILL No. 467*
An  Act concerning consumer protection; relating to disasters; concerning information tech-
nology; providing protection from deceptive and unwanted electronic mail messages;
establishing certain acts a violation of the Kansas consumer protection act; allowing for
either a cause of action or civil penalty for a violation.
Be it enacted by the Legislature of the State of Kansas:

      Section  1. (a) This act shall be known as the commercial electronic
mail act.

      (b) As used in this act:

      (1) ``Assist the transmission'' means actions taken by a person to pro-
vide substantial assistance or support which enables any person to for-
mulate, compose, send, originate, initiate or transmit a commercial elec-
tronic mail message when the person providing the assistance knows that
the initiator of the commercial electronic mail message is engaged, or
intends to engage, in any practice that violates the Kansas consumer pro-
tection act.

      (2) ``Commercial electronic mail message'' means an electronic mail
message sent for the purpose of promoting property or services for sale
or lease, but shall not include electronic mail messages sent by a natural
person volunteering to send such messages on behalf of a charitable or-
ganization as defined by K.S.A. 17-1760, and amendments thereto.

      (3) ``Electronic mail address'' means a destination, commonly ex-
pressed as a string of characters, to which electronic mail may be sent or
delivered.

      (4) ``Established business relationship'' means a prior and existing re-
lationship formed by a voluntary two-way communication between a
sender and a recipient with or without an exchange of consideration, on
the basis of an express authorization, application, purchase or transaction
by the recipient regarding products or services offered by such sender,
which relationship has not been previously terminated by either party.

      (5) ``Initiate the transmission'' refers to the action by the original
sender of an electronic mail message, not to the action by any intervening
interactive computer service that may handle or retransmit the message,
unless such intervening interactive computer service assists in the trans-
mission of an electronic mail message when it knows, that the person
initiating the transmission is engaged, or intends to engage, in any act or
practice that violates the Kansas consumer protection act.

      (6) ``Interactive computer service'' means any information service,
system or access software provider that provides or enables computer
access by multiple users to a computer server, including specifically a
service or system that provides access to the internet and such systems
operated or services offered by libraries or educational institutions.

      (7) ``Internet domain name'' refers to a globally unique, hierarchical
reference to an internet host or service, assigned through centralized
internet naming authorities, comprising a series of character strings sep-
arated by periods, with the right-most string specifying the top of the
hierarchy.

      (8) ``Express authorization'' means an express affirmative act by a re-
cipient clearly agreeing to receive commercial electronic messages from
a specified and identifiable sender, or from multiple persons.

      (c) No person shall:

      (1) Initiate the transmission, conspire with another to initiate the
transmission, or assist the transmission, of a commercial electronic mail
message from a computer located in Kansas or to an electronic mail ad-
dress that the sender knows, is held by a Kansas resident that:

      (A) Uses a third party's internet domain name without permission of
the third party, or otherwise misrepresents or obscures any information
in identifying the point of origin or the transmission path of a commercial
electronic mail message;

      (B) contains false or misleading information in the subject line;

      (C) does not contain as the first four characters of the subject line
``ADV:''; Provided, however, the characters ``ADV'' shall not be required
in the subject line if the recipient has an established business relationship
or has given express authorization to receive commercial electronic mail
messages or in electronic mail messages, other than messages of a sexually
explicit or otherwise adult oriented nature, sent to less than 500 recipients
per month. The sender claiming exemption under this subsection shall
have the burden of proving the exemption by a preponderance of the
evidence;

      (D) does not contain instructions, in text at least as large as the ma-
jority of the text in the transmission, for the recipient to follow to notify
the sender not to send any subsequent communications, with a valid
sender operated return electronic mail address to which the recipient
may reply to notify the sender not to send any further commercial elec-
tronic mail messages and the legal name of the person or entity initiating
the transmission, including such person's or entity's (i) physical address
for the receipt of the United States mail or (ii) a toll free telephone
number that the recipient may call to notify the sender not to send any
subsequent communications. It shall be prima facie evidence that the
sender is in violation of this section if the recipient's reply electronic mail
message is returned to the recipient as undeliverable, or is otherwise not
accepted by the sender of the original commercial electronic mail mes-
sage; or

      (E) contains advertising material for viewing, use, consumption, sale,
lease or rental only by persons over 18 years of age, including but not
limited to content of sexual, sexually explicit or otherwise adult-oriented
nature, unless the first eight characters of the subject line are
``ADV:ADLT.''

      (2) Initiate the transmission, conspire with another to initiate the
transmission, or assist the transmission, of a commercial electronic mail
message from a computer located in Kansas or to an electronic mail ad-
dress that the sender knows, is held by a Kansas resident that is made
after the recipient thereof has notified the sender not to send any sub-
sequent communications.

      (3) Give, transfer, sell or otherwise share with another the electronic
mail address of any recipient who has notified the sender not to send any
subsequent communications for any use other than for the third party to
place the address on a do not contact list.

      (4) Assist in the transmission of a commercial electronic mail mes-
sage, when the person providing the assistance knows, that the initiator
of the commercial electronic mail message is engaged, or intends to en-
gage, in any act or practice that violates the Kansas consumer protection
act.

      (5) Knowingly sell, give or otherwise distribute or possess with the
intent to sell, give or distribute software that:

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

      (B) 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

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

      (d) For purposes of this section, a person knows or has reason to know
that the intended recipient of a commercial electronic mail message is a
Kansas resident if that information is available, upon request, from the
registrant of the internet domain name contained in the recipient's elec-
tronic mail address.

      (e) An interactive computer service may, upon its own initiative, block
the receipt or transmission through its service of any commercial elec-
tronic mail that it reasonably believes is, or will be, sent in violation of
this chapter.

      (f) No interactive computer service may be held liable for any action
voluntarily taken in good faith to block the receipt or transmission through
its service of any commercial electronic mail which it reasonably believes
is, or will be, sent in violation of this act.

      (g) Any violation of this section is an unconscionable act and practice
under the Kansas consumer protection act.

      (h) Any person alleging a violation of this section including an inter-
active computer service damaged by a violation, shall be deemed a con-
sumer who has been aggrieved by a violation of the Consumer protection
act and to have suffered actual loss as referred to in K.S.A. 50-634 and
50-636 and amendments thereto.

      (i) Any person alleging a violation of this section may bring a private
action to seek relief pursuant to K.S.A. 50-634, 50-636 and this section,
and amendments thereto, and such person shall be considered a con-
sumer pursuant to K.S.A. 50-624, and amendments thereto, for the pur-
poses of such private action.

      (j) Any person that violates this section shall be subject to a civil
penalty of not less than $500 nor more than $10,000 for each such vio-
lation instead of the penalty provided for in subsection (a) of K.S.A. 50-
636, and amendments thereto.

      (k) It shall be an affirmative defense to a violation of this section if
the person can demonstrate, by clear and convincing evidence, (1) that
the sender at the time of the alleged violation had: (A) Maintained a list
of consumers who have notified the person not to send any subsequent
commercial electronic messages; (B) established and implemented, with
due care, reasonable practices and procedures to effectively prevent un-
solicited commercial electronic mail messages in violation of this section;
(C) trained the sender's personnel in the requirements of this section;
and (D) maintained records demonstrating compliance with this section;
and (2) the unsolicited commercial electronic message was the result of
an error. Such defense shall not be exercised by any person more than
once within the state of Kansas in any 12-month period. A person shall
be deemed to have exercised such defense if asserted in response to any
consumer complaint about a violation of this section, regardless of
whether litigation has been initiated.

      (l) The legislature finds that the practices covered by this section are
matters vitally affecting the public interest for the purpose of applying
the Kansas consumer protection act. A violation of this section is not
reasonable or necessary for the development and preservation of com-
merce and is an unconscionable act in violation of the Kansas consumer
protection act.

      (m) This section shall be a part of and supplemental to the Kansas
consumer protection act.

 Sec.  2. This act shall take effect and be in force from and after its
publication in the statute book.

Approved May 17, 2002.
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