Del. P.J.I. Crim. No. 11.937(1)

UNREQUESTED OR UNAUTHORIZED ELECTRONIC MAIL

OR USE OF NETWORK OR SOFTWARE TO CAUSE SAME

In order to find Defendant guilty of Unrequested or Unwanted Electronic Mail

or the Use of Network or Software to Cause Same, you must find the State has proved

the following two (2) elements beyond a reasonable doubt:

(1) Defendant distributed any unsolicited bulk commercial electronic mail to

any receiving address or account under the control of any authorized user of a

computer system; and

(2) Defendant acted intentionally or recklessly.

In this case, [the State concedes the value of the property or services is less than

$1,500. No further proof regarding the value of the property or services is needed and

the correct offense is Unrequested or Unwanted Electronic Mail or the Use of Network

or Software to Cause Same - Class A Misdemeanor/the State contends the value of the

property or services is at least $1,500 and is therefore charging Defendant with

Unrequested or Unwanted Electronic Mail or the Use of Network or Software to Cause

Same - Class G Felony. Therefore, you must find beyond a reasonable doubt the value

of the property or services is greater than $1,500 and so indicate on the verdict

sheet/the State contends the value of the property or services is greater than $5,000

and is therefore charging Defendant with Unrequested or Unwanted Electronic Mail

or the Use of Network or Software to Cause Same - Class E Felony. Therefore, you

must find beyond a reasonable doubt the value of the property or services is greater

than $5,000 and so indicate on the verdict sheet/the State contends the value of the

property or services is greater than $10,000 and is therefore charging Defendant with

Unrequested or Unwanted Electronic Mail or the Use of Network or Software to Cause

Same - Class D Felony. Therefore, you must find beyond a reasonable doubt the value

of the property or services is greater than $10,000 and so indicate on the verdict

sheet/[if applicable] the State contends Defendant engaged in conduct that created a

risk of serious physical injury to another person, and is therefore charging Defendant

with Unrequested or Unwanted Electronic Mail or the Use of Network or Software to

Cause Same - Class G Felony. Therefore, you must find beyond a reasonable doubt

Defendant engaged in conduct that created a risk of serious physical injury to another

person and so indicate on the verdict sheet.]

[if applicable:]

[This section shall not apply if (the electronic mail is sent between human

beings/the individual has requested said information). This section shall not apply to

the transmission of electronic mail from an organization (to its members/where there

is a preexisting business relationship). No (Internet/interactive) service provider shall

be liable for (merely transmitting an unsolicited, bulk commercial electronic mail

message in its network/any action voluntarily taken in good faith to block the

{receipt/transmission} through its service of any unsolicited, bulk electronic mail

which it believes {is/will be} sent in violation to {disconnect/terminate} the service of

any person that is in violation of this article.

[If applicable:]

["Serious physical injury" means any physical injury which creates a substantial

risk of death, or which causes serious and prolonged disfigurement, prolonged

impairment of health, or prolonged loss or impairment of the function of any bodily

organ.]

“Intentionally” means it was Defendant's conscious objective or purpose to

distribute unsolicited bulk commercial electronic mail.

“Recklessly” means Defendant was aware of and consciously disregarded a

substantial and unjustifiable risk that would result from Defendant’s conduct

distribution of unsolicited bulk commercial electronic mail. The State must

demonstrate the risk was of such a nature and degree that Defendant’s disregard of the

risk was a gross deviation from the standard of conduct a reasonable person would

observe under the same circumstances.

“Commercial electronic mail” means any electronic mail message that is sent

to a receiving address or account for the purposes of advertising, promoting,

marketing, or otherwise attempting to solicit interest in any good, service, or

enterprise.

“Computer network” means a set of related devices connected to a computer by

communications facilities, a complex of two (2) or more computers, including related

devices, connected by communications facilities, or the communications transmission

facilities and devices used to interconnect equipment, along with control mechanisms

associated thereto.

“Computer system” means a computer, its software, related equipment and

communications facilities, if any, and includes computer networks.

”Receiving address” or “receiving account” means the string used to specify the

destination of any electronic mail message.