# Title 51 — Sales and Exchanges

## Chapter 51-27 — Commercial Electronic Mail Consumer Protection

### § 51-27-01. Definitions.

(Contingent expiration date - See note)
In this chapter, unless the context otherwise requires:
1. "Assist the transmission" means actions taken by a person to provide substantial
assistance or support that enables any person to formulate, compose, send, originate,
initiate, or transmit a commercial electronic mail message when the person providing
the assistance knows or consciously avoids knowing that the initiator of the
commercial electronic mail message is engaged, or intends to engage, in any practice
that violates chapter 51-15.
2. "Commercial electronic mail message" means an electronic mail message sent to
promote real property, goods, or services for sale or lease. The term does not mean an
electronic mail message to which an interactive computer service provider has
attached an advertisement in exchange for free use of an electronic mail account if the
sender has agreed to such an arrangement.
3. "Electronic mail address" means a destination, commonly expressed as a string of
characters, to which electronic mail may be sent or delivered.
4. "Identifying information" means any information that can be used to access an
individual's financial account or to obtain goods and services, including an individual's
address, birth date, social security number, driver's license number, nondriver
governmental identification number, telephone number, bank account number, student
identification, credit or debit card number, personal identification number, unique
biometric data, employee or payroll number, automated or electronic signature,
computer image, photograph, screen name, or password. The term does not include
information that is lawfully obtained from publicly available sources or from federal,
state, or local government records lawfully made available to the general public.
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 the intervening interactive computer
service assists in the transmission of an electronic mail message when the interactive
computer service knows, or consciously avoids knowing, that the person initiating the
transmission is engaged, or intends to engage, in any act or practice that violates
chapter 51-15.
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 a service or system that provides access to the internet and
systems operated or services offered by libraries and 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 separated by periods, with the right-most
string specifying the top of the hierarchy.
8. "Web page" means a location that has a single uniform resource locator with respect
to the world wide web or another location that can be accessed on the internet.
### § 51-27-02. False or misleading messages prohibited.

(Contingent expiration date - See
note)
1. A person may not 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 this state or to an electronic mail address that the sender knows,
or has reason to know, is held by a resident of this state 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; or
b. Contains false or misleading information in the subject line.

2. For purposes of this section, a person knows that the intended recipient of a
commercial electronic mail message is a resident of this state if that information is
available, upon request, from the registrant of the internet domain name contained in
the recipient's electronic mail address.
### § 51-27-03. Unpermitted or misleading electronic mail - Violation of consumer

protection law. (Contingent expiration date - See note)
1. It is a violation of chapter 51-15 to conspire with another person to initiate the
transmission or to initiate the transmission of a commercial electronic mail message
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; or
b. Contains false or misleading information in the subject line.
2. It is a violation of chapter 51-15 to assist in the transmission of a commercial electronic
mail message if the person providing the assistance knows, or consciously avoids
knowing, that the initiator of the commercial electronic mail message is engaged, or
intends to engage, in any act or practice that violates chapter 51-15.
### § 51-27-04. Subject disclosure - Violation of consumer protection law.

(Contingent
expiration date - See note)
1. The subject line of a commercial electronic mail message must include "ADV" as the
first characters. If the message contains information that consists of material of a
sexual nature that may only be viewed by an individual eighteen years of age or older,
the subject line of the message must include "ADV-ADULT" as the first characters.
2. For purposes of this section, a commercial electronic mail message does not include a
message if the recipient has consented to receive or has solicited electronic mail
messages from the initiator, from an organization using electronic mail to communicate
exclusively with its members, from an entity which uses electronic mail to
communicate exclusively with its employees or contractors, or if there is a business or
personal relationship between the initiator and the recipient.
3. For purposes of this section, a business relationship means a prior or existing
relationship formed between the initiator and the recipient, with or without an exchange
of consideration, on the basis of an inquiry, application, purchase, or services offered
by the initiator or an affiliate or agent of the initiator. "Affiliate" means a person that
directly or indirectly controls, is controlled by, or is under common control with a
specified person.
4. It is a violation of chapter 51-15 to conspire with another person to initiate the
transmission or to initiate the transmission of a commercial electronic mail message
that violates this section.
### § 51-27-05. Toll-free number.

(Contingent expiration date - See note)
1. A sender initiating the transmission of a commercial electronic mail message shall
establish a toll-free telephone number, a valid sender-operated return electronic mail
address, or another easy-to-use electronic method that the recipient of the commercial
electronic mail message may call or access by electronic mail or other electronic
means to notify the sender not to transmit any further unsolicited commercial
electronic mail messages. The notification process may include the ability for the
commercial electronic mail messages recipient to direct the initiator to transmit or not
transmit particular commercial electronic mail messages based upon products,
services, divisions, organizations, companies, or other selections of the recipient's
choice.
2. A commercial electronic mail message must include a statement informing the
recipient of a toll-free telephone number that the recipient may call, or a valid return
address to which the recipient may write or access by electronic mail or another

electronic method established by the initiator, notifying the sender not to transmit to the
recipient any further unsolicited commercial electronic mail messages to the electronic
mail address specified by the recipient, and explaining the manner in which the
recipient may specify what commercial electronic mail messages the recipient does
and does not want to receive.
### § 51-27-06. Violations - Damages.

(Contingent expiration date - See note)
1. Damages to the recipient of a commercial electronic mail message sent in violation of
this chapter are five hundred dollars, or actual damages, whichever is greater.
2. Damages to an interactive computer service resulting from a violation of this chapter
are one thousand dollars, or actual damages, whichever is greater.
### § 51-27-07. Blocking of commercial electronic mail by interactive computer service -

Immunity from liability. (Contingent expiration date - See note)
1. An interactive computer service may block the receipt or transmission through its
service of any commercial electronic mail that it reasonably believes is, or will be, sent
in violation of this chapter.
2. An interactive computer service may not 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
chapter.
### § 51-27-08. Nonexclusive causes of action, remedies, and penalties.

(Contingent
expiration date - See note)
The remedies, duties, prohibitions, and penalties of this chapter are not exclusive and are in
addition to all other causes of action, remedies, and penalties in chapter 51-15 or otherwise
provided by law.
### § 51-27-09. Relationship to federal law.

(Contingent expiration date - See note)
If any federal law is enacted that regulates false, misleading, or unsolicited commercial
electronic mail messages, but does not preempt state law on the subject, the federal law
supersedes any conflicting provision of this chapter.
### § 51-27-10. Fraudulent or misleading communications - Penalty.

1. A person is guilty of a class C felony if, with intent to defraud or injure an individual, or
with knowledge that the person is facilitating a fraud or injury to be perpetrated by any
other person:
a. The actor makes any communication that is not true and is calculated to mislead
by purporting to be by or on behalf of another person without the authority or
approval of that person; and
b. The actor uses that communication to induce, request, or solicit the individual to
provide property or identifying information.
2. A person is guilty of a class C felony if, with intent to defraud or injure an individual, or
with knowledge that a person is facilitating a fraud or injury to be perpetrated by any
other person:
a. The actor creates or operates a web page that falsely represents the actor as
being associated with another person without the authority or approval of that
person and the web page may induce a user of the internet to provide property or
identifying information; or
b. The actor alters a setting on a user's computer or similar device or software
program through which the user may search the internet, the alteration causes
the user to view a communication that falsely represents the actor as being
associated with another person, and the communication has been created or is
operated without the authority or approval of the other person and induces,
requests, or solicits the user to provide property or identifying information.
