GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1999

S	1 

SENATE BILL 288

Short Title:  Unsolicited Electronic Bulk Mail.	(Public)

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Sponsors: Senators Reeves; and Martin of Guilford.

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Referred to:  Judiciary I.

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March 8, 1999

A BILL TO BE ENTITLED
AN ACT TO EXTEND NORTH CAROLINA'S "LONG ARM JURISDICTION"STATUTE TO INCLUDE SENDERS OF UNSOLICITED ELECTRONIC BULK MAIL AND TO MAKE THE SENDING OF UNSOLICITED ELECTRONIC BULK MAIL UNLAWFUL IN THIS STATE.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 1-75.4 reads as rewritten:
"§ 1-75.4.  Personal jurisdiction, grounds for generally.
A court of this State having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to Rule 4(j), Rule 4(j1), or Rule 4(j3) of the Rules of Civil Procedure under any of the following circumstances:
(1)	Local Presence or Status. – In any action, whether the claim arises within or without this State, in which a claim is asserted against a party who when service of process is made upon such party:
a.	Is a natural person present within this State; or
b.	Is a natural person domiciled within this State; or
c.	Is a domestic corporation; or
d.	Is engaged in substantial activity within this State, whether such activity is wholly interstate, intrastate, or otherwise.
(2)	Special Jurisdiction Statutes. – In any action which may be brought under statutes of this State that specifically confer grounds for personal jurisdiction.
(3)	Local Act or Omission. – In any action claiming injury to person or property or for wrongful death within or without this State arising out of an act or omission within this State by the defendant.
(4)	Local Injury; Foreign Act. – In any action for wrongful death occurring within this State or in any action claiming injury to person or property within this State arising out of an act or omission outside this State by the defendant, provided in addition that at or about the time of the injury either:
a.	Solicitation or services activities were carried on within this State by or on behalf of the defendant; or
b.	Products, materials or thing processed, serviced or manufactured by the defendant were used or consumed, within this State in the ordinary course of trade.
(5)	Local Services, Goods or Contracts. – In any action which:
a.	Arises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff's benefit, by the defendant to perform services within this State or to pay for services to be performed in this State by the plaintiff; or
b.	Arises out of services actually performed for the plaintiff by the defendant within this State, or services actually performed for the defendant by the plaintiff within this State if such performance within this State was authorized or ratified by the defendant; or
c.	Arises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff's benefit, by the defendant to deliver or receive within this State, or to ship from this State goods, documents of title, or other things of value; or
d.	Relates to goods, documents of title, or other things of value shipped from this State by the plaintiff to the defendant on his order or direction; or
e.	Relates to goods, documents of title, or other things of value actually received by the plaintiff in this State from the defendant through a carrier without regard to where delivery to the carrier occurred.
(6)	Local Property. – In any action which arises out of:
a.	A promise, made anywhere to the plaintiff or to some third party for the plaintiff's benefit, by the defendant to create in either party an interest in, or protect, acquire, dispose of, use, rent, own, control or possess by either party real property situated in this State; or
b.	A claim to recover for any benefit derived by the defendant through the use, ownership, control or possession by the defendant of tangible property situated within this State either at the time of the first use, ownership, control or possession or at the time the action is commenced; or
c.	A claim that the defendant return, restore, or account to the plaintiff for any asset or thing of value which was within this State at the time the defendant acquired possession or control over it.
(7)	Deficiency Judgment on Local Foreclosure or Resale. – In any action to recover a deficiency judgment upon an obligation secured by a mortgage, deed of trust, conditional sale, or other security instrument executed by the defendant or his predecessor to whose obligation the defendant has succeeded and the deficiency is claimed either:
a.	In an action in this State to foreclose such security instrument upon real property, tangible personal property, or an intangible represented by an indispensable instrument, situated in this State; or
b.	Following sale of real or tangible personal property or an intangible represented by an indispensable instrument in this State under a power of sale contained in any security instrument.
(8)	Director or Officer of a Domestic Corporation. – In any action against a defendant who is or was an officer or director of a domestic corporation where the action arises out of the defendant's conduct as such officer or director or out of the activities of such corporation while the defendant held office as a director or officer.
(9)	Taxes or Assessments. – In any action for the collection of taxes or assessments levied, assessed or otherwise imposed by a taxing authority of this State after the date of ratification of this act.
(10)	Insurance or Insurers. – In any action which arises out of a contract of insurance as defined in G.S. 58-1-10 made anywhere between the plaintiff or some third party and the defendant and in addition either:
a.	The plaintiff was a resident of this State when the event occurred out of which the claim arose; or
b.	The event out of which the claim arose occurred within this State, regardless of where the plaintiff resided.
(11)	Personal Representative. – In any action against a personal representative to enforce a claim against the deceased person represented, whether or not the action was commenced during the lifetime of the deceased, where one or more of the grounds stated in subdivisions (2) to (10) of this section would have furnished a basis for jurisdiction over the deceased had he been living.
(12)	Marital Relationship. – In any action under Chapter 50 that arises out of the marital relationship within this State, notwithstanding subsequent departure from the State, if the other party to the marital relationship continues to reside in this State.
(13)	Transmitting Unsolicited Bulk Electronic Mail. – Transmitting or causing the transmission of unsolicited bulk electronic mail to or through an electronic mail service provider's computer network located in this State shall constitute an act within the State.  For purposes of this subdivision, "computer network"and "electronic mail service provider"shall have the same meanings as those contained in G.S. 14-453."
Section 2.  G.S. 14-453 reads as rewritten:
"§ 14-453. Definitions.
As used in this Article, unless the context clearly requires otherwise, the following terms have the meanings specified:
(1)	"Access"means to instruct, communicate with, cause input, cause output, cause data processing, or otherwise make use of any resources of a computer, computer system, or computer network.
(1a)	"Authorization"means having the consent or permission of the owner, or of the person licensed or authorized by the owner to grant consent or permission to access a computer, computer system, or computer network in a manner not exceeding the consent or permission.
(2)	"Computer"means an internally programmed, automatic device that performs data processing or telephone switching.
(3)	"Computer network"means the interconnection of communication systems with a computer through remote terminals, or a complex consisting of two or more interconnected computers or telephone switching equipment.
(4)	"Computer program"means an ordered set of data that are coded instructions or statements that when executed by a computer cause the computer to process data.
(4a)	"Computer services"means computer time or services, including data processing services, Internet services, electronic mail services, electronic message services, or information or data stored in connection with any of these services.
(5)	"Computer software"means a set of computer programs, procedures and associated documentation concerned with the operation of a computer, computer system, or computer network.
(6)	"Computer system"means at least one computer together with a set of related, connected, or unconnected peripheral devices.
(6a)	"Data"means a representation of information, facts, knowledge, concepts, or instructions prepared in a formalized or other manner and intended for use in a computer, computer system, or computer network. Data may be embodied in any form including, but not limited to, computer printouts, magnetic storage media, and punch cards, or may be stored internally in the memory of a computer.
(6b)	"Electronic mail service provider"means any person who (i) is an intermediary in sending or receiving electronic mail and (ii) provides to end-users of electronic mail services the ability to send or receive electronic mail.
(7)	"Financial instrument"includes any check, draft, money order, certificate of deposit, letter of credit, bill of exchange, credit card or marketable security, or any electronic data processing representation thereof.
(8)	"Property"includes financial instruments, information, including electronically processed or produced data, and computer software and computer programs in either machine or human readable form, and any other tangible or intangible item of value.
(8a)	"Resource"includes peripheral devices, computer software, computer programs, and data, and means to be a part of a computer, computer system, or computer network.
(9)	"Services"includes computer time, data processing and storage functions."
Section 3.  Article 60 of Chapter 14 of the General Statues is amended by adding a new section to read:
"§ 14-457.  Computer trespass; penalty; damages.
(a)	It shall be unlawful for any person to use a computer or computer network without authority and with the intent to do any of the following:
(1)	Temporarily or permanently remove, halt, or otherwise disable any computer data, computer programs, or computer software from a computer or computer network.
(2)	Cause a computer to malfunction, regardless of how long the malfunction persists.
(3)	Alter or erase any computer data, computer programs, or computer software.
(4)	Cause physical injury to the property of another.
(5)	Make or cause to be made an unauthorized copy, in any form, including, but not limited to, any printed or electronic form of computer data, computer programs, or computer software residing in, communicated by, or produced by a computer or computer network.
(6)	Falsify or forge electronic mail transmission information or other routing 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.
(b)	It shall be unlawful for any person to sell, give, or otherwise distribute or possess 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 with that person's knowledge for use in facilitating or enabling the falsification of electronic mail transmission information or other routing information.
(c)	Any person who violates this section shall be guilty of computer trespass, which offense shall be punishable as a Class 3 misdemeanor.  If there is damage to the property of another valued at two thousand five hundred dollars ($2,500) or more caused by the person's reckless disregard for the consequences of his act in violation of this section, the offense shall be punished as a Class 1 misdemeanor.  If there is damage to the property of another valued at two thousand five hundred dollars ($2,500) or more, caused by the person's malicious act in violation of this section, the offense shall be punished as a Class G felony.
(d)	Any person whose property or person is injured by reason of a violation of this section may sue for and recover for any damages sustained and the costs of the suit.  Without limiting the general of the term, "damages"shall include loss of profits.  If the injury arises from the transmission of unsolicited bulk electronic mail, the injured person, other than an electronic mail service provider, may also recover attorneys' fees, and may elect, in lieu of actual damages, to recover the lesser of ten dollars ($10.00) for each and every unsolicited bulk electronic mail message transmitted in violation of this section, or twenty-five thousand dollars ($25,000) per day.  The injured person shall not have a cause of action against the electronic mail service provider which merely transmits the unsolicited bulk electronic mail over its computer network.  If the injury arises from the transmission of unsolicited bulk electronic mail, an injured electronic mail service provider may also recover attorneys' fees and costs, and may elect, in lieu of actual damages, to recover the greater of ten dollars ($10.00) for each and every unsolicited bulk electronic mail message transmitted in violation of this section, or twenty-five thousand dollars ($25,000) per day.
(e)	A civil action under this section shall be commenced before expiration of the time period prescribed in G.S. 1-54.  In actions alleging injury arising from the transmission of unsolicited bulk electronic mail, personal jurisdiction may be exercised pursuant to G.S. 1-75.4(13)."
Section 4.  This act becomes effective October 1, 1999.