Indiana Telephone Solicitation of Consumers
Ind. Code § 24-4.7 - § 24-4.7-5-6
CITATION:
IC 24-4.7 ARTICLE 4.7. TELEPHONE SOLICITATION OF CONSUMERS
Ch. 1. General Provisions
Ch. 2. Definitions
Ch. 3. Duties of the Division
Ch. 4. Telephone Solicitations
Ch. 5. Civil Remedies
IC 24-4.7-1 Chapter 1. General Provisions
24-4.7-1-1 Application
24-4.7-1-2 Compliance with other law
IC 24-4.7-1-1 Application
Sec. 1. This article does not apply to any of the following:
(1) A telephone call made in response to an express request of the person called.
(2) A telephone call made primarily in connection with an existing debt or contract for which payment or performance has not been completed at the time of the call.
(3) A telephone call made on behalf of a charitable organization that is exempt from federal income taxation under Section 501 of the Internal Revenue Code, but only if all of the following apply:
(A) The telephone call is made by a volunteer or an employee of the charitable organization.
(B) The telephone solicitor who makes the telephone call immediately discloses all of the following information upon making contact with the consumer:
(i) The solicitor's true first and last name.
(ii) The name, address, and telephone number of the charitable organization.
(4) A telephone call made by an individual licensed under IC 25-34.1 if:
(A) the sale of goods or services is not completed; and
(B) the payment or authorization of payment is not required;
until after a face to face sales presentation by the seller.
(5) A telephone call made by an individual licensed under IC 27-1-15.6 or IC 27-1-15.8 when the individual is soliciting an application for insurance or negotiating a policy of insurance on behalf of an insurer (as defined in IC 27-1-2-3).
(6) A telephone call soliciting the sale of a newspaper of general circulation, but only if the telephone call is made by a volunteer or an employee of the newspaper.
(7) Any telephone call made to a consumer by a communications service provider (as defined in IC 8-1-32.5-4) that:
(A) offers broadband Internet service; and
(B) has an established business relationship (as defined in 47 CFR 64.1200) with the consumer.
(8) Any telephone call made to a consumer by:
(A) a financial institution organized or reorganized under the laws of any state or the United States; or
(B) a person licensed by the department of financial institutions under IC 24-4.4, IC 24-4.5, or 750 IAC 9;
that has an established business relationship (as defined in 47 CFR 64.1200) with the consumer.
As added by P.L.189-2001, SEC.1. Amended by P.L.97-2004, SEC.90; P.L.242-2019, SEC.1.
IC 24-4.7-1-2 Compliance with other law
Sec. 2. This article does not relieve a person from complying with any other applicable law.
As added by P.L.189-2001, SEC.1.
IC 24-4.7-2 Chapter 2. Definitions
24-4.7-2-1 Applicability of definitions
24-4.7-2-1.7 "Caller"
24-4.7-2-2 "Consumer"
24-4.7-2-3 "Consumer goods or services"
24-4.7-2-4 "Division"
24-4.7-2-5 "Doing business in Indiana"
24-4.7-2-5.5 "Executive"
24-4.7-2-6 "Fund"
24-4.7-2-7 "Listing"
24-4.7-2-7.3 "Person"
24-4.7-2-7.5 "Place of primary use"
24-4.7-2-7.7 "Supplier"
24-4.7-2-8 "Telephone number"
24-4.7-2-9 "Telephone sales call"
24-4.7-2-10 "Telephone solicitor"
IC 24-4.7-2-1 Applicability of definitions
Sec. 1. The definitions in this chapter apply throughout this article.
As added by P.L.189-2001, SEC.1.
IC 24-4.7-2-1.7 "Caller"
Sec. 1.7. "Caller" has the meaning set forth in IC 24-5-14-2.
As added by P.L.61-2014, SEC.1.
IC 24-4.7-2-2 "Consumer"
Sec. 2. (a) "Consumer" means a residential telephone subscriber who:
(1) for the telephone service received:
(A) has a place of primary use in Indiana; or
(B) is issued an Indiana telephone number or an Indiana identification number; and
(2) is an actual or a prospective:
(A) purchaser, lessee, or recipient of consumer goods or services; or
(B) donor to a charitable organization.
(b) The term includes a user of a prepaid wireless calling service (as defined in IC 6-2.5-1-22.4) who:
(1) is issued an Indiana telephone number or an Indiana identification number for the service; or
(2) purchases prepaid wireless calling service in a retail transaction that is sourced to Indiana (as determined under IC 6-2.5-12-16).
As added by P.L.189-2001, SEC.1. Amended by P.L.226-2011, SEC.6.
IC 24-4.7-2-3 "Consumer goods or services"
Sec. 3. "Consumer goods or services" means any of the following:
(1) Tangible or intangible personal property or real property that is normally used for personal, family, or household purposes.
(2) Property intended to be attached to or installed on real property without regard to whether it is attached or installed.
(3) Services related to property described in subdivision (1) or (2).
(4) Credit cards or the extension of credit.
As added by P.L.189-2001, SEC.1.
IC 24-4.7-2-4 "Division"
Sec. 4. "Division" refers to the consumer protection division of the office of the attorney general.
As added by P.L.189-2001, SEC.1.
IC 24-4.7-2-5 "Doing business in Indiana"
Sec. 5. (a) "Doing business in Indiana" means:
(1) making; or
(2) causing others to make;
telephone sales calls to consumers located in Indiana whether the telephone sales calls are made from a location in Indiana or outside Indiana.
(b) A person that controls, directly or indirectly, one (1) or more persons that make or cause another person to make a telephone call to a consumer located in Indiana is "doing business in Indiana", no matter where the person is located or domiciled.
As added by P.L.189-2001, SEC.1. Amended by P.L.226-2011, SEC.7; P.L.153-2017, SEC.1.
IC 24-4.7-2-5.5 "Executive"
Sec. 5.5. "Executive" means any of the following, as applicable:
(1) With respect to a corporation, a person who is or performs the duties of the:
(A) president;
(B) chief executive officer;
(C) treasurer; or
(D) chief financial officer;
of the corporation.
(2) With respect to a partnership, a partner authorized to act on behalf of the partnership.
(3) With respect to a limited liability company, a member of the limited liability company who has not had the member's authority to act on behalf of the limited liability company revoked.
As added by P.L.242-2019, SEC.2.
IC 24-4.7-2-6 "Fund"
Sec. 6. "Fund" refers to the consumer protection division telephone solicitation fund established by IC 24-4.7-3-6.
As added by P.L.189-2001, SEC.1.
IC 24-4.7-2-7 "Listing"
Sec. 7. "Listing" refers to the no telephone sales solicitation listing published by the division under IC 24-4.7-3 that lists the telephone numbers of consumers who do not wish to receive telephone sales calls.
As added by P.L.189-2001, SEC.1. Amended by P.L.226-2011, SEC.8.
IC 24-4.7-2-7.3 "Person"
Sec. 7.3. "Person" means:
(1) an individual, a firm, an organization, a partnership, an association, or a corporation, including affiliates and subsidiaries; or
(2) any other legal entity.
As added by P.L.153-2017, SEC.2.
IC 24-4.7-2-7.5 "Place of primary use"
Sec. 7.5. "Place of primary use", with respect to a telephone subscriber, means the street address representative of where the subscriber's use of the telephone service primarily occurs, which must be:
(1) the residential street address of the subscriber or, in the case of a subscriber of interconnected VOIP service, the subscriber's registered location (as defined in 47 CFR 9.3); and
(2) in the case of mobile telecommunications services (as defined in IC 6-8.1-15-7), within the licensed service area of the home service provider, as set forth in IC 6-8.1-15-8.
As added by P.L.226-2011, SEC.9.
IC 24-4.7-2-7.7 "Supplier"
Sec. 7.7. "Supplier" has the meaning set forth in IC 24-5-0.5-2(a)(3).
As added by P.L.61-2014, SEC.2.
IC 24-4.7-2-8 "Telephone number"
Sec. 8. "Telephone number" means a residential telephone number that:
(1) is assigned to a subscriber who has a place of primary use in Indiana; or
(2) otherwise represents an Indiana telephone number or is associated with an Indiana identification number.
As added by P.L.189-2001, SEC.1. Amended by P.L.226-2011, SEC.10.
IC 24-4.7-2-9 "Telephone sales call"
Sec. 9. (a) "Telephone sales call" means a telephone call made to a consumer for any of the following purposes:
(1) Solicitation of a sale of consumer goods or services.
(2) Solicitation of a charitable contribution.
(3) Obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.
(b) The term includes any of the following:
(1) A call made by use of an automated dialing device.
(2) A call made by use of a recorded message device.
(3) Transmission of:
(A) a text message; or
(B) a graphic message;
using short message service (SMS).
(4) Transmission of:
(A) an image;
(B) a photograph; or
(C) a multimedia message;
using multimedia messaging service (MMS).
As added by P.L.189-2001, SEC.1. Amended by P.L.226-2011, SEC.11.
IC 24-4.7-2-10 "Telephone solicitor"
Sec. 10. "Telephone solicitor" means a person doing business in Indiana. The term includes a person that controls, directly or indirectly, one (1) or more other persons.
As added by P.L.189-2001, SEC.1. Amended by P.L.153-2017, SEC.3.
IC 24-4.7-3 Chapter 3. Duties of the Division
24-4.7-3-1 Quarterly listing
24-4.7-3-2 Agents
24-4.7-3-3 Investigation
24-4.7-3-4 Required notice to Indiana residents
24-4.7-3-5 Reports
24-4.7-3-6 Consumer protection division telephone solicitation fund
24-4.7-3-7 Adoption of rules
IC 24-4.7-3-1 Quarterly listing
Sec. 1. (a) A quarterly listing of telephone numbers of Indiana consumers who request not to be solicited by telephone shall be established, maintained, and published as provided in this section.
(b) The telephone number of a consumer shall be placed on the listing if the consumer requests to be added to the listing according to a procedure approved by the division.
(c) The listing shall be updated upon receipt of a request from a consumer.
(d) A telephone solicitor may obtain a copy of the listing upon request of the telephone solicitor as provided in this section.
(e) The division shall establish a fee to be paid by a telephone solicitor for obtaining a copy of the listing. The fee established under this subsection may not exceed the amount necessary to cover the cost of providing the listing to telephone solicitors.
As added by P.L.189-2001, SEC.1.
IC 24-4.7-3-2 Agents
Sec. 2. (a) The division may contract with an agent to perform the division's duties under section 1 of this chapter if both of the following conditions are satisfied:
(1) The agent has demonstrated experience in maintaining a national no sales solicitation calls listing.
(2) The contract requires the vendor to provide the listing in:
(A) a printed hard copy format; and
(B) any other format offered;
at a cost that does not exceed the production cost of the format offered.
(b) If the division enters into a contract under this section, the division must retain the ultimate authority for the following:
(1) Approval of the procedures for establishment, maintenance, and publication of the listing.
(2) Establishing fees required by section 1(e) of this chapter.
As added by P.L.189-2001, SEC.1.
IC 24-4.7-3-3 Investigation
Sec. 3. The division shall investigate complaints received concerning violations of this article.
As added by P.L.189-2001, SEC.1.
IC 24-4.7-3-4 Required notice to Indiana residents
Sec. 4. The division shall notify Indiana residents of the following:
(1) The rights and duties created by this article, including the right of any of the following consumers to place a telephone number on the listing established and maintained under section 1 of this chapter:
(A) Subscribers of interconnected VOIP service.
(B) Subscribers of mobile telecommunications service (as defined in IC 6-8.1-15-7).
(C) Users of a prepaid wireless calling service, as described in IC 24-4.7-2-2(b).
(2) The prohibition under 47 U.S.C. 227(b) against a person making any call using an:
(A) automatic telephone dialing system; or
(B) artificial or prerecorded voice;
to any telephone number assigned to a mobile telecommunications service (as defined in IC 6-8.1-15-7), or to another radio common carrier service.
(3) The prohibition under 47 U.S.C. 227(b) against a person initiating any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior consent of the called party, subject to the exceptions set forth in 47 U.S.C. 227(b).
(4) Information concerning the placement of a telephone number on the National Do Not Call Registry operated by the Federal Trade Commission.
As added by P.L.189-2001, SEC.1. Amended by P.L.226-2011, SEC.12; P.L.242-2019, SEC.3.
IC 24-4.7-3-5 Reports
Sec. 5. (a) The division shall, after June 30 and before October 1 of each year, report to the interim study committee on energy, utilities, and telecommunications established by IC 2-5-1.3-4 in an electronic format under IC 5-14-6 on the following:
(1) The total amount of fees deposited in the fund during the most recent state fiscal year.
(2) The expenses incurred by the division in maintaining and promoting the listing during the most recent state fiscal year.
(3)The projected budget required by the division to comply with this article during the current state fiscal year.
(4) Any other expenses incurred by the division in complying with this article during the most recent state fiscal year.
(5) The total number of subscribers on the listing at the end of the most recent state fiscal year.
(6) The number of new subscribers added to the listing during the most recent state fiscal year.
(7) The number of subscribers removed from the listing for any reason during the most recent state fiscal year.
(b) The interim study committee on energy, utilities, and telecommunications established by IC 2-5-1.3-4 shall, before November 1 of each year, issue in an electronic format under IC 5-14-6 a report and recommendations to the legislative council concerning the information received under subsection (a).
As added by P.L.189-2001, SEC.1. Amended by P.L.28-2004, SEC.163; P.L.53-2014, SEC.139.
IC 24-4.7-3-6 Consumer protection division telephone solicitation fund
Sec. 6. (a) The consumer protection division telephone solicitation fund is established for the following purposes:
(1) The administration of:
(A) this article;
(B) IC 24-5-0.5-3(b)(19);
(C) IC 24-5-12;
(D) IC 24-5-14; and
(E) IC 24-5-14.5.
(2) The reimbursement of county prosecutors for expenses incurred in extraditing violators of any statute set forth in subdivision (1).
The fund shall be used exclusively for these purposes.
(b) The division shall administer the fund.
(c) The fund consists of all revenue received:
(1) under this article;
(2) from civil penalties recovered under IC 24-5-0.5-4(h);
(3) from civil penalties recovered after June 30, 2019, under IC 24-5-12-23(b);
(4) from civil penalties recovered after June 30, 2019, under IC 24-5-14-13(b); and
(5) from civil penalties recovered under IC 24-5-14.5-12.
(d) Money in the fund is continuously appropriated to the division for the purposes set forth in subsection (a).
(e) Money in the fund at the end of a state fiscal year does not revert to the state general fund. However, if the amount of money in the fund at the end of a particular state fiscal year exceeds two hundred thousand dollars ($200,000), the treasurer of state shall transfer the excess from the fund to the state general fund.
As added by P.L.189-2001, SEC.1. Amended by P.L.85-2006, SEC.1; P.L.151-2013, SEC.5; P.L.65-2014, SEC.5; P.L.242-2019, SEC.4.
IC 24-4.7-3-7 Adoption of rules
Sec. 7. The division may adopt rules under IC 4-22-2 to implement this article.
As added by P.L.189-2001, SEC.1.
IC 24-4.7-4 Chapter 4. Telephone Solicitations
24-4.7-4-1 Prohibitions
24-4.7-4-2 Violations; disclosure
24-4.7-4-3 Consumer information containing telephone numbers; exclusion of numbers on listing required; exception
24-4.7-4-4 Contracts and sales
24-4.7-4-5 Transactions
24-4.7-4-6 Compliance with other applicable laws
24-4.7-4-7 Prohibitions; providing telephone numbers for solicitation purposes; transferring live calls; providing assistance or support to violators; inapplicability to communications service providers
IC 24-4.7-4-1 Prohibitions
Sec. 1. A telephone solicitor may not make or cause to be made a telephone sales call to a telephone number if that telephone number appears in the most current quarterly listing published by the division.
As added by P.L.189-2001, SEC.1.
IC 24-4.7-4-2 Violations; disclosure
Sec. 2. A telephone solicitor who makes a telephone sales call to a telephone number shall immediately disclose the following information upon making contact with the consumer:
(1) The solicitor's true first and last name.
(2) The name of the business or person on whose behalf the telephone solicitor is soliciting.
(3) The person with which the solicitor is employed or has contracted.
As added by P.L.189-2001, SEC.1. Amended by P.L.153-2017, SEC.4.
IC 24-4.7-4-3 Consumer information containing telephone numbers; exclusion of numbers on listing required; exception
Sec. 3. (a) This section does not apply to a person obtaining consumer information for inclusion in directory assistance and telephone directories sold by telephone companies.
(b) A telephone solicitor, a supplier, a caller, or any other person who obtains consumer information that includes telephone numbers shall exclude the telephone numbers that appear on the division's most current listing.
As added by P.L.189-2001, SEC.1. Amended by P.L.61-2014, SEC.3.
IC 24-4.7-4-4 Contracts and sales
Sec. 4. (a) This section does not apply to any of the following:
(1) A sale in which:
(A) no prior payment is made to a merchant;
(B) an invoice accompanies the goods or services; and
(C) a consumer is allowed seven (7) days to cancel the services or return the goods without obligation for payment.
(2) A contractual agreement that:
(A) requires payment; and
(B) allows the consumer at least ten (10) days to cancel the contract and receive a full refund of the payment.
(3) A sale regulated by 170 IAC 7-1.1-19.
(4) A newspaper subscription executed through a telephone call.
(b) A contract made under a telephone sales call is not valid and enforceable against a consumer unless the contract complies with this section.
(c) A contract made under a telephone sales call must satisfy all of the following:
(1) The contract must be reduced to writing and signed by the consumer.
(2) The contract must contain the name, address, and business telephone number of the seller, the total price of the contract, and a detailed description of the goods or services being sold.
(3) The description of goods or services as stated in the contract must be the same as the description principally used in the telephone solicitation.
(4) The contract must contain, in bold, conspicuous type immediately preceding the signature the words "you are not obligated to pay any money unless you sign this contract and return it to the seller".
(5) The contract may not exclude from its terms any oral or written representations made by the telephone solicitor to the consumer in connection with the transaction.
As added by P.L.189-2001, SEC.1. Amended by P.L.22-2002, SEC.1.
IC 24-4.7-4-5 Transactions
Sec. 5. (a) This section does not apply to any of the following:
(1) A transaction made in accordance with prior negotiations in the course of a visit by a consumer to a merchant that operates a retail business establishment that has a fixed, permanent location where consumer goods are displayed or offered for sale on a continuing basis.
(2) A transaction in which:
(A) a consumer may obtain a full refund for the return of undamaged and unused goods; or
(B) a consumer may, within seven (7) days after receipt of merchandise by a consumer, give a cancellation of services notice to a seller and return the merchandise, and the seller must process the refund within thirty (30) days after receipt of the returned merchandise.
(3) A transaction in which a consumer purchases goods or services under a television, radio, or print advertisement or a sample, brochure, or catalog of a merchant that contains:
(A) the name, address, and business telephone number of the merchant;
(B) a description of the goods or services being sold; and
(C) limitations or restrictions that apply to the offer.
(4) A transaction in which a merchant is a bona fide charitable organization.
(b) A contract made under a telephone sales call in violation of this section is not valid and enforceable against a consumer.
(c) A merchant who engages a telephone solicitor to make or cause to be made a telephone sales call may not:
(1) make or submit a charge to a consumer's credit card account; or
(2) make or cause to be made any electronic transfer of funds;
until the merchant receives from the consumer a copy of the contract, signed by the consumer, that complies with this chapter.
As added by P.L.189-2001, SEC.1.
IC 24-4.7-4-6 Compliance with other applicable laws
Sec. 6. A telephone solicitor, a supplier, or a caller must also comply with all other applicable laws, including the following, if applicable:
(1) IC 24-5-12.
(2) IC 24-5-14.
(3) IC 24-5-14.5.
As added by P.L.189-2001, SEC.1. Amended by P.L.22-2002, SEC.2; P.L.61-2014, SEC.4.
IC 24-4.7-4-7 Prohibitions; providing telephone numbers for solicitation purposes; transferring live calls; providing assistance or support to violators; inapplicability to communications service providers
Sec. 7. (a) This section does not apply to the sale, transfer, or provision of a consumer's telephone number to a person that is exempt from this article under IC 24-4.7-1-1.
(b) A telephone solicitor, a supplier, or a caller may not sell, transfer, or make available to another person for solicitation purposes a consumer's telephone number if the telephone solicitor, supplier, or caller knows that the telephone number appears in the most current quarterly listing published by the division.
(c) A telephone solicitor, a supplier, or a caller may not transfer a live call to one (1) or more other persons if the call has been placed to a consumer in violation of this article or IC 24-5-14.
(d) A telephone solicitor, a supplier, or a caller may not provide substantial assistance or support to another person if the telephone solicitor, supplier, or caller knows or consciously avoids knowing that the person has engaged in any act or practice that violates this article or IC 24-5-14.
(e) A person may not provide substantial assistance or support to a telephone solicitor, a supplier, or a caller if the person knows or consciously avoids knowing that the telephone solicitor, supplier, or caller has engaged in any act or practice that violates this article or IC 24-5-14. A communications service provider (as defined in IC 8-1-32.5-4) does not violate this subsection, and this subsection does not:
(1) provide a right of action against a communications service provider; or
(2) subject a communications service provider to any criminal penalties or civil remedies set forth in this article or in IC 24-5-14;
if the communications service provider's equipment or services are used only to transport, handle, or retransmit a communication that violates this article or IC 24-5-14.
As added by P.L.61-2014, SEC.5. Amended by P.L.227-2015, SEC.1.
IC 24-4.7-5 Chapter 5. Civil Remedies
24-4.7-5-0.1 Application of certain amendments to chapter
24-4.7-5-1 Deceptive acts; state contractors
24-4.7-5-2 Remedies
24-4.7-5-3 Voidable contracts
24-4.7-5-4 Statute of limitations
24-4.7-5-5 Jurisdiction
24-4.7-5-6 Representation of state
IC 24-4.7-5-0.1 Application of certain amendments to chapter
Sec. 0.1. The amendments made to section 1 of this chapter by P.L.222-2005 apply only to a contract entered into or renewed after July 1, 2005.
As added by P.L.220-2011, SEC.393.
IC 24-4.7-5-1 Deceptive acts; state contractors
Sec. 1. (a) A telephone solicitor, a supplier, or a caller who fails to comply with any provision of IC 24-4.7-4 commits a deceptive act that is actionable by the attorney general under this chapter.
(b) A person who directly or indirectly controls a person that fails to comply with any provision of IC 24-4.7-4 commits a separate deceptive act that is actionable by the attorney general under this chapter.
(c) If:
(1) the person described in subsection (b) is an executive with respect to a telephone solicitor, a supplier, or a caller; and
(2) the telephone solicitor, supplier, or caller fails to comply with any provision of IC 24-4.7-4;
the person described in subsection (b) commits a separate deceptive act that is actionable by the attorney general under this chapter.
(d) A contractor who contracts or seeks to contract with the state:
(1) may be prohibited from contracting with the state; or
(2) may have an existing contract with the state voided;
if the contractor, an affiliate or principal of the contractor, a person that directly or indirectly controls the contractor, any agent acting on behalf of the contractor or an affiliate or principal of the contractor, or a person that directly or indirectly controls the agent does not comply or has not complied with the terms of this article, even if this article is preempted by federal law.
As added by P.L.189-2001, SEC.1. Amended by P.L.165-2005, SEC.5 and P.L.222-2005, SEC.32; P.L.61-2014, SEC.6; P.L.153-2017, SEC.5; P.L.242-2019, SEC.5.
IC 24-4.7-5-2 Remedies
Sec. 2. (a) In an action under this chapter, the attorney general may obtain any or all of the following:
(1) An injunction to enjoin future violations of IC 24-4.7-4.
(2) A civil penalty of not more than the following:
(A) Ten thousand dollars ($10,000) for the first violation of IC 24-4.7-4.
(B) Twenty-five thousand ($25,000) dollars for each violation after the first violation.
For purposes of this subdivision, each telephone call in violation of IC 24-4.7-4-1 is considered a separate violation.
(3) All money the defendant obtained through violation of IC 24-4.7-4.
(4) The attorney general's reasonable costs in:
(A) the investigation of the deceptive act; and
(B) maintaining the action.
(5) Reasonable attorney's fees.
(6) Costs of the action.
(b) Except as provided in subsection (c), the attorney general may obtain the remedies described in subsection (a) separately against or from each person that violates IC 24-4.7-4-1, including a person that directly or indirectly controls a person that violates IC 24-4.7-4-1.
(c) This subsection applies only to a person that directly or indirectly controls a person that violates IC 24-4.7-4-1. A person to which this subsection applies is not liable for a civil penalty under subsection (a)(2) if the person establishes by a preponderance of the evidence that the person:
(1) did not know; and
(2) in the exercise of reasonable care could not have known;
of the violation.
As added by P.L.189-2001, SEC.1. Amended by P.L.153-2017, SEC.6.
IC 24-4.7-5-3 Voidable contracts
Sec. 3. In an action under this chapter, the court may void or limit the application of contracts or clauses resulting from deceptive acts and order restitution to be paid to an aggrieved consumer.
As added by P.L.189-2001, SEC.1.
IC 24-4.7-5-4 Statute of limitations
Sec. 4. An action brought under this chapter may not be brought more than two (2) years after the occurrence of the deceptive act.
As added by P.L.189-2001, SEC.1.
IC 24-4.7-5-5 Jurisdiction
Sec. 5. An action under this chapter may be brought in the circuit or superior court of Marion County.
As added by P.L.189-2001, SEC.1.
IC 24-4.7-5-6 Representation of state
Sec. 6. The attorney general may employ counsel to represent the state in an action under this chapter.
As added by P.L.189-2001, SEC.1.
IC 24-4.8 ARTICLE 4.8. PROHIBITED SPYWARE
Ch. 1. Definitions
Ch. 2. Prohibited Conduct
Ch. 3. Relief and Damages
IC 24-4.8-1 Chapter 1. Definitions
24-4.8-1-1 Application
24-4.8-1-2 "Advertisement"
24-4.8-1-3 "Computer software"
24-4.8-1-4 "Damage"
24-4.8-1-5 "Execute"
24-4.8-1-6 "Intentionally deceptive means"
24-4.8-1-7 "Internet"
24-4.8-1-8 "Owner or operator"
24-4.8-1-9 "Person"
24-4.8-1-10 "Personally identifying information"
24-4.8-1-11 "Transmit"
IC 24-4.8-1-1 Application
Sec. 1. The definitions in this chapter apply throughout this article.
As added by P.L.115-2005, SEC.1.
IC 24-4.8-1-2 "Advertisement"
Sec. 2. "Advertisement" means a communication that has the primary purpose of promoting a commercial product or service.
As added by P.L.115-2005, SEC.1.
IC 24-4.8-1-3 "Computer software"
Sec. 3. (a) "Computer software" means a sequence of instructions written in any programming language that is executed on a computer.
(b) The term does not include computer software that is a web page or a data component of a web page that is not executable independently of the web page.
As added by P.L.115-2005, SEC.1.
IC 24-4.8-1-4 "Damage"
Sec. 4. "Damage" means a significant impairment to the integrity or availability of data, computer software, a system, or information.
As added by P.L.115-2005, SEC.1.
IC 24-4.8-1-5 "Execute"
Sec. 5. "Execute" means to perform a function or carry out an instruction of computer software.
As added by P.L.115-2005, SEC.1.
IC 24-4.8-1-6 "Intentionally deceptive means"
Sec. 6. "Intentionally deceptive means" means any of the following:
(1) A materially false statement that a person knows to be false.
(2) A statement or description made by a person who omits or misrepresents material information with the intent to deceive an owner or operator of a computer.
(3) The failure to provide notice to an owner or operator of a computer regarding the installation or execution of computer software with the intent to deceive the owner or operator.
As added by P.L.115-2005, SEC.1.
IC 24-4.8-1-7 "Internet"
Sec. 7. "Internet" has the meaning set forth in IC 5-22-2-13.5.
As added by P.L.115-2005, SEC.1.
IC 24-4.8-1-8 "Owner or operator"
Sec. 8. (a) "Owner or operator" means the person who owns or leases a computer or a person who uses a computer with the authorization of the person who owns or leases the computer.
(b) The term does not include a manufacturer, distributor, wholesaler, retail merchant, or any other person who owns or leases a computer before the first retail sale of the computer.
As added by P.L.115-2005, SEC.1.
IC 24-4.8-1-9 "Person"
Sec. 9. "Person" means an individual, a partnership, a corporation, a limited liability company, or another organization.
As added by P.L.115-2005, SEC.1.
IC 24-4.8-1-10 "Personally identifying information"
Sec. 10. "Personally identifying information" means the following information that refers to a person who is an owner or operator of a computer:
(1) Identifying information (as defined in IC 35-43-5-1).
(2) An electronic mail address.
(3) Any of the following information in a form that personally identifies an owner or operator of a computer:
(A) An account balance.
(B) An overdraft history.
(C) A payment history.
As added by P.L.115-2005, SEC.1.
IC 24-4.8-1-11 "Transmit"
Sec. 11. (a) Except as provided in subsection (b), "transmit" means to transfer, send, or otherwise make available computer software or a computer software component through a network, the Internet, a wireless transmission, or any other medium, including a disk or data storage device.
(b) "Transmit" does not include an action by a person who provides:
(1) the Internet connection, telephone connection, or other means of connection for an owner or operator, including a compact disc or DVD on which computer software to establish or maintain a connection is made available;
(2) the storage or hosting of computer software or an Internet web page through which the computer software was made available; or
(3) an information location tool, including a directory, an index, a reference, a pointer, or a hypertext link, through which the owner or operator of the computer located the software;
unless the person receives a direct economic benefit from the execution of the computer software.
As added by P.L.115-2005, SEC.1.
IC 24-4.8-2 Chapter 2. Prohibited Conduct
24-4.8-2-1 Application
24-4.8-2-2 Prohibited conduct by owners or operators of computers
24-4.8-2-3 Prohibited conduct by persons who are not owners or operators of computers
IC 24-4.8-2-1 Application
Sec. 1. This chapter does not apply to a person who monitors or interacts with an owner or operator's Internet connection, Internet service, network connection, or computer if the person is a telecommunications carrier, cable operator, computer hardware or software provider, or other computer service provider who monitors or interacts with an owner or operator's Internet connection, Internet service, network connection, or computer for one (1) or more of the following purposes:
(1) Network security.
(2) Computer security.
(3) Diagnosis.
(4) Technical support.
(5) Maintenance.
(6) Repair.
(7) Authorized updates of software or system firmware.
(8) Authorized remote system management.
(9) Detection or prevention of the unauthorized, illegal, or fraudulent use of a network, service, or computer software, including scanning for and removing computer software that facilitates a violation of this chapter.
As added by P.L.115-2005, SEC.1.
IC 24-4.8-2-2 Prohibited conduct by owners or operators of computers
Sec. 2. A person who is not the owner or operator of the computer may not knowingly or intentionally:
(1) transmit computer software to the computer; and
(2) by means of the computer software transmitted under subdivision (1), do any of the following:
(A) Use intentionally deceptive means to modify computer settings that control:
(i) the page that appears when an owner or operator opens an Internet browser or similar computer software used to access and navigate the Internet;
(ii) the Internet service provider, search engine, or web proxy that an owner or operator uses to access or search the Internet; or
(iii) the owner or operator's list of bookmarks used to access web pages.
(B) Use intentionally deceptive means to collect personally identifying information:
(i) through the use of computer software that records a keystroke made by an owner or operator and transfers that information from the computer to another person; or
(ii) in a manner that correlates the personally identifying information with data respecting all or substantially all of the web sites visited by the owner or operator of the computer, not including a web site operated by the person collecting the personally identifying information.
(C) Extract from the hard drive of an owner or operator's computer:
(i) a credit card number, debit card number, bank account number, or any password or access code associated with these numbers;
(ii) a Social Security number, tax identification number, driver's license number, passport number, or any other government issued identification number; or
(iii) the account balance or overdraft history of a person in a form that identifies the person.
(D) Use intentionally deceptive means to prevent reasonable efforts by an owner or operator to block or disable the installation or execution of computer software.
(E) Knowingly or intentionally misrepresent that computer software will be uninstalled or disabled by an owner or operator's action.
(F) Use intentionally deceptive means to remove, disable, or otherwise make inoperative security, antispyware, or antivirus computer software installed on the computer.
(G) Take control of another person's computer with the intent to cause damage to the computer or cause the owner or operator to incur a financial charge for a service that the owner or operator has not authorized by:
(i) accessing or using the computer's modem or Internet service; or
(ii) without the authorization of the owner or operator, opening multiple, sequential, standalone advertisements in the owner or operator's Internet browser that a reasonable computer user cannot close without turning off the computer or closing the browser.
(H) Modify:
(i) computer settings that protect information about a person with the intent of obtaining personally identifying information without the permission of the owner or operator; or
(ii) security settings with the intent to cause damage to a computer.
(I) Prevent reasonable efforts by an owner or operator to block or disable the installation or execution of computer software by:
(i) presenting an owner or operator with an option to decline installation of computer software knowing that the computer software will be installed even if the owner or operator attempts to decline installation; or
(ii) falsely representing that computer software has been disabled.
As added by P.L.115-2005, SEC.1.
IC 24-4.8-2-3 Prohibited conduct by persons who are not owners or operators of computers
Sec. 3. A person who is not the owner or operator may not knowingly or intentionally do any of the following:
(1) Induce the owner or operator to install computer software on the owner or operator's computer by knowingly or intentionally misrepresenting the extent to which installing the computer software is necessary for:
(A) computer security;
(B) computer privacy; or
(C) opening, viewing, or playing a particular type of content.
(2) Use intentionally deceptive means to execute or cause the execution of computer software with the intent to cause the owner or operator to use the computer software in a manner that violates subdivision (1).
As added by P.L.115-2005, SEC.1.
IC 24-4.8-3 Chapter 3. Relief and Damages
24-4.8-3-1 Civil action
24-4.8-3-2 Separate violations
IC 24-4.8-3-1 Civil action
Sec. 1. In addition to any other remedy provided by law, a provider of computer software, the owner of a web site, or the owner of a trademark who is adversely affected by reason of the violation may bring a civil action against a person who violates IC 24-4.8-2:
(1) to enjoin further violations of IC 24-4.8-2; and
(2) to recover the greater of:
(A) actual damages; or
(B) one hundred thousand dollars ($100,000);
for each violation of IC 24-4.8-2.
As added by P.L.115-2005, SEC.1.
IC 24-4.8-3-2 Separate violations
Sec. 2. For purposes of section 1 of this chapter, conduct that violates more than one (1) subdivision, clause, or item of IC 24-4.8-2 constitutes a separate violation for each separate subdivision, clause, or item violated. However, a single action or course of conduct that causes repeated violations of a single subdivision, clause, or item of IC 24-4.8-2 constitutes one (1) violation.
As added by P.L.115-2005, SEC.1.
For more information, see here: https://iga.in.gov/legislative/laws/2022/ic/titles/024#24-4.7
These materials were obtained directly from the State Legislative websites and are posted here for your review and reference only. No Claim to Original State Government Works. This may not be the most recent version. The State may have more current information. We make no guarantees or warranties about the accuracy or completeness of this information, or the information linked to. Please check the linked sources directly.