AN ACT to amend the Indiana Code concerning criminal law and procedure.
SECTION 1. IC 34-30-2-151.2 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2005]: Sec. 151.2. IC 35-45-5-4.6 (Concerning
the action of an interactive computer service in blocking a
transmission it reasonably believes to be sent in violation of
IC 35-45-5).
SECTION 2. IC 35-45-5-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 1. As used in this
chapter:
"Gain" means the direct realization of winnings.
"Gambling" means risking money or other property for gain,
contingent in whole or in part upon lot, chance, or the operation of a
gambling device; but it does not include participating in:
(1) bona fide contests of skill, speed, strength, or endurance in
which awards are made only to entrants or the owners of entries;
or
(2) bona fide business transactions that are valid under the law of
contracts.
"Gambling device" means:
(1) a mechanism by the operation of which a right to money or
other property may be credited, in return for consideration, as the
result of the operation of an element of chance;
(2) a mechanism that, when operated for a consideration, does not
return the same value or property for the same consideration upon
each operation;
(3) a mechanism, furniture, fixture, construction, or installation
designed primarily for use in connection with professional
gambling;
(4) a policy ticket or wheel; or
(5) a subassembly or essential part designed or intended for use
in connection with such a device, mechanism, furniture, fixture,
construction, or installation.
In the application of this definition, an immediate and unrecorded right
to replay mechanically conferred on players of pinball machines and
similar amusement devices is presumed to be without value.
"Gambling information" means:
(1) a communication with respect to a wager made in the course
of professional gambling; or
(2) information intended to be used for professional gambling.
"Interactive computer service" means an Internet service, an
information service, a system, or an access software provider that
provides or enables computer access to a computer served by
multiple users. The term includes the following:
(1) A service or system that provides access or is an
intermediary to the Internet.
(2) A system operated or services offered by a library, school,
state educational institution (as defined in IC 20-12-0.5-1), or
private college or university.
"Operator" means a person who owns, maintains, or operates
an Internet site that is used for interactive gambling.
"Profit" means a realized or unrealized benefit (other than a gain)
and includes benefits from proprietorship or management and unequal
advantage in a series of transactions.
SECTION 3. IC 35-45-5-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 2. (a) A person who
knowingly or intentionally engages in gambling commits unlawful
gambling.
(b) Except as provided in subsection (c), unlawful gambling is a
Class B misdemeanor.
(c) An operator who knowingly or intentionally uses the
Internet to engage in unlawful gambling:
(1) in Indiana; or
(2) with a person located in Indiana;
commits a Class D felony.
SECTION 4. IC 35-45-5-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 3. (a) A person who
knowingly or intentionally:
(1) engages in pool-selling;
(2) engages in bookmaking;
(3) maintains, in a place accessible to the public, slot machines,
one-ball machines or variants thereof, pinball machines that
award anything other than an immediate and unrecorded right of
replay, roulette wheels, dice tables, or money or merchandise
pushcards, punchboards, jars, or spindles;
(4) conducts lotteries gift enterprises, or policy or numbers games
or sells chances therein;
(5) conducts any banking or percentage games played with cards,
dice, or counters, or accepts any fixed share of the stakes therein;
or
(6) accepts, or offers to accept, for profit, money, or other
property risked in gambling;
commits professional gambling, a Class D felony.
(b) An operator who knowingly or intentionally uses the
Internet to:
(1) engage in pool-selling:
(A) in Indiana; or
(B) in a transaction directly involving a person located in
Indiana;
(2) engage in bookmaking:
(A) in Indiana; or
(B) in a transaction directly involving a person located in
Indiana;
(3) maintain, on an Internet site accessible to residents of
Indiana, the equivalent of:
(A) slot machines;
(B) one-ball machines or variants of one-ball machines;
(C) pinball machines that award anything other than an
immediate and unrecorded right of replay;
(D) roulette wheels;
(E) dice tables; or
(F) money or merchandise pushcards, punchboards, jars,
or spindles;
(4) conduct lotteries or policy or numbers games or sell
chances in lotteries or policy or numbers games:
(A) in Indiana; or
(B) in a transaction directly involving a person located in
Indiana;
(5) conduct any banking or percentage games played with the
computer equivalent of cards, dice, or counters, or accept any
fixed share of the stakes in those games:
(A) in Indiana; or
(B) in a transaction directly involving a person located in
Indiana; or
(6) accept, or offer to accept, for profit, money or other
property risked in gambling:
(A) in Indiana; or
(B) in a transaction directly involving a person located in
Indiana;
commits professional gambling over the Internet, a Class D felony.
SECTION 5. IC 35-45-5-4.5 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2005]: Sec. 4.5. (a) A prosecuting attorney may send written
notice to an operator described in section 2(c) or 3(b) of this
chapter. The notice must:
(1) specify the illegal gambling activity;
(2) state that the operator has not more than thirty (30) days
after the date the notice is received to remove the illegal
gambling activity; and
(3) state that failure to remove the illegal gambling activity
not more than thirty (30) days after receiving the notice may
result in the filing of criminal charges against the operator.
A prosecuting attorney who sends a notice under this section shall
forward a copy of the notice to the attorney general. The attorney
general shall maintain a depository to collect, maintain, and retain
each notice sent under this section.
(b) The manner of service of a notice under subsection (a) must
be:
(1) in compliance with Rule 4.1, 4.4, 4.6, or 4.7 of the Indiana
Rules of Trial Procedure; or
(2) by publication in compliance with Rule 4.13 of the Indiana
Rules of Trial Procedure if service cannot be made under
subdivision (1) after a diligent search for the operator.
(c) A notice served under subsection (a):
(1) is admissible in a criminal proceeding under this chapter;
and
(2) constitutes prima facie evidence that the operator had
knowledge that illegal gambling was occurring on the
operator's Internet site.
(d) A person outside Indiana who transmits information on a
computer network (as defined in IC 35-43-2-3) and who knows or
should know that the information is broadcast in Indiana submits
to the jurisdiction of Indiana courts for prosecution under this
section.
SECTION 6. IC 35-45-5-4.6 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2005]: Sec. 4.6. (a) An interactive computer service may, on its
own initiative, block the receipt or transmission through its service
of any commercial electronic mail message that it reasonably
believes is or will be sent in violation of this chapter.
(b) An interactive computer service is not liable for such action.
SECTION 7. IC 35-45-5-4.7 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2005]: Sec. 4.7. (a) An interactive computer service that handles
or retransmits a commercial electronic mail message has a right of
action against a person who initiates or assists the transmission of
the commercial electronic mail message that violates this chapter.
(b) This chapter does not provide a right of action against:
(1) an interactive computer service;
(2) a telephone company (as defined in IC 8-1-2-88);
(3) a CMRS provider (as defined in IC 36-8-16.5-6);
(4) a cable operator (as defined in 47 U.S.C. 522(5)); or
(5) any other entity that primarily provides connectivity to an
operator;
if the entity's equipment is used only to transport, handle, or
retransmit information that violates this chapter and is not capable
of blocking the retransmission of information that violates this
chapter.
(c) It is a defense to an action under this section if the defendant
shows by a preponderance of the evidence that the violation of this
chapter resulted from a good faith error and occurred
notwithstanding the maintenance of procedures reasonably
adopted to avoid violating this chapter.
(d) If the plaintiff prevails in an action filed under this section,
the plaintiff is entitled to the following:
(1) An injunction to enjoin future violations of this chapter.
(2) Compensatory damages equal to any actual damage
proven by the plaintiff to have resulted from the initiation of
the commercial electronic mail message. If the plaintiff does
not prove actual damage, the plaintiff is entitled to
presumptive damages of five hundred dollars ($500) for each
commercial electronic mail message that violates this chapter
and that is sent by the defendant:
(A) to the plaintiff; or
(B) through the plaintiff's interactive computer service.
(3) The plaintiff's reasonable attorney's fees and other
litigation costs reasonably incurred in connection with the
action.
(e) A person outside Indiana who:
(1) initiates or assists the transmission of a commercial
electronic mail message that violates this chapter; and
(2) knows or should know that the commercial electronic mail
message will be received in Indiana;
submits to the jurisdiction of Indiana courts for purposes of this
chapter.
SECTION 8. [EFFECTIVE JULY 1, 2005] IC 35-45-5-2 and
IC 35-45-5-3, both as amended by this act, apply only to crimes
committed after June 30, 2005.