[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 771 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
                                 S. 771

To regulate the transmission of unsolicited commercial electronic mail, 
                        and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 21, 1997

 Mr. Murkowski introduced the following bill; which was read twice and 
   referred to the Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
To regulate the transmission of unsolicited commercial electronic mail, 
                        and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Unsolicited Commercial Electronic 
Mail Choice Act of 1997''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) The Internet is a worldwide network of information that 
        growing numbers of Americans use on a regular basis for 
        educational and personal activities.
            (2) Electronic mail messages transmitted on the Internet 
        constitute an increasing percentage of communications in the 
        United States.
            (3) Solicited commercial electronic mail is a useful and 
        cost-effective means for Americans to receive information about 
        a business and its products.
            (4) The number of transmissions of unsolicited commercial 
        electronic mail advertisements has grown exponentially over the 
        past several years as the technology for creating and 
        transmitting such advertisements in bulk has made the costs of 
        distribution of such advertisements minimal.
            (5) Individuals have available no effective means of 
        differentiating between unsolicited commercial electronic mail 
        advertisements and other Internet communications.
            (6) The transmitters of unsolicited commercial electronic 
        mail advertisements can easily move from State to State.
            (7) Individuals and businesses that receive unsolicited 
        commercial electronic mail advertisements often pay for the 
        costs of such receipt, including the costs of Internet access 
        and long distance telephone charges.
            (8) Unsolicited commercial electronic mail can be used to 
        advertise legitimate services and goods but is also used for 
        fraudulent and deceptive purposes in violation of Federal and 
        State law.
            (9) Individuals and companies that use unsolicited 
        commercial electronic mail for fraudulent and deceptive 
        purposes often use fraudulent identification information in 
        such electronic mail, making it impossible for a recipient to 
        request to be removed from the mailing list or for law 
        enforcement authorities to identify the sender.
            (10) The inability of recipients of unsolicited commercial 
        electronic mail to identify the senders of such electronic mail 
        or to prevent its receipt impedes the flow of commerce and 
        communication on the Internet and threatens the integrity of 
        commerce on the Internet.
            (11) Internet service providers are burdened by the cost of 
        equipment necessary to process unsolicited commercial 
        electronic mail.
            (12) To facilitate the development of commerce and 
        communication on the Internet, unsolicited commercial 
        electronic mail should be readily identifiable and filterable 
        by individuals and Internet service providers.

SEC. 3. REQUIREMENTS RELATING TO TRANSMISSIONS OF UNSOLICITED 
              COMMERCIAL ELECTRONIC MAIL.

    (a) Information on Advertisement.--
            (1) Requirement.--Unless otherwise authorized pursuant to a 
        provision of section 7, a person who transmits an electronic 
        mail message as part of the transmission of unsolicited 
        commercial electronic mail shall cause to appear in each 
        electronic mail message transmitted as part of such 
        transmission the information specified in paragraph (3).
            (2) Placement.--
                    (A) Advertisement.--The information specified in 
                subparagraph (A) of paragraph (3) shall appear as the 
                first word of the subject line of the electronic mail 
                message without any prior text or symbol.
                    (B) Other information.--The information specified 
                in subparagraph (B) of that paragraph shall appear 
                prominently in the body of the message.
            (3) Covered information.--The following information shall 
        appear in an electronic mail message under paragraph (1):
                    (A) The term ``advertisement''.
                    (B) The name, physical address, electronic mail 
                address, and telephone number of the person who 
                initiates transmission of the message.
    (b) Routing Information.--All Internet routing information 
contained within or accompanying an electronic mail message described 
in subsection (a) shall be valid according to the prevailing standards 
for Internet protocols.
    (c) Effective Date.--The requirements in this section shall take 
effect 30 days after the date of enactment of this Act.

SEC. 4. FEDERAL REGULATION OF UNSOLICITED COMMERCIAL ELECTRONIC MAIL.

    (a) Transmissions.--
            (1) In general.--Upon notice from a person of the person's 
        receipt of electronic mail in violation of a provision of 
        section 3 or 7, the Commission--
                    (A) may conduct an investigation to determine 
                whether or not the electronic mail was transmitted in 
                violation of the provision; and
                    (B) if the Commission determines that the 
                electronic mail was transmitted in violation of the 
                provision, may--
                            (i) impose upon the person initiating the 
                        transmission a civil fine in an amount not to 
                        exceed $11,000;
                            (ii) commence in a district court of the 
                        United States a civil action to recover a civil 
                        penalty in an amount not to exceed $11,000 
                        against the person initiating the transmission; 
                        or
                            (iii) both impose a fine under clause (i) 
                        and commence an action under clause (ii).
            (2) Deadline.--The Commission may not take action under 
        paragraph (1)(B) with respect to a transmission of electronic 
        mail more than 2 years after the date of the transmission.
    (b) Administration.--
            (1) Notice by electronic means.--The Commission shall 
        establish an Internet web site with an electronic mail address 
        for the receipt of notices under subsection (a).
            (2) Information on enforcement.--The Commission shall make 
        available through the Internet web site established under 
        paragraph (2) information on the actions taken by the 
        Commission under subsection (a)(1)(B).
            (3) Assistance of federal communications commission.--The 
        Federal Communications Commission may assist the Commission in 
        carrying out its duties this section.

SEC. 5. ACTIONS BY STATES.

    (a) In General.--Whenever an attorney general of any State has 
reason to believe that the interests of the residents of that State 
have been or are being threatened or adversely affected because any 
person is engaging in a pattern or practice of the transmission of 
electronic mail in violation of a provision of section 3 or 7, the 
State, as parens patriae, may bring a civil action on behalf of its 
residents to enjoin such transmission, to enforce compliance with the 
provision, to obtain damages or other compensation on behalf of its 
residents, or to obtain such further and other relief as the court 
considers appropriate.
    (b) Notice to Commission.--
            (1) Notice.--The State shall serve prior written notice of 
        any civil action under this section upon the Commission and 
        provide the Commission with a copy of its complaint, except 
        that if it is not feasible for the State to provide such prior 
        notice, the State shall serve written notice immediately upon 
        instituting such action.
            (2) Rights of commission.--Upon receiving a notice with 
        respect to a civil action under paragraph (1), the Commission 
        shall have the right--
                    (A) to intervene in the action;
                    (B) upon so intervening, to be heard in all matters 
                arising therein; and
                    (C) to file petitions for appeal.
    (c) Actions by Commission.--Whenever a civil action has been 
instituted by or on behalf of the Commission for violation of a 
provision of section 3 or 7, no State may, during the pendency of such 
action, institute a civil action under this section against any 
defendant named in the complaint in such action for violation of any 
provision as alleged in the complaint.
    (d) Construction.--For purposes of bringing a civil action under 
subsection (a), nothing in this section shall prevent an attorney 
general from exercising the powers conferred on the attorney general by 
the laws of the State concerned to conduct investigations or to 
administer oaths or affirmations or to compel the attendance of 
witnesses or the production of documentary or other evidence.
    (e) Venue; Service of Process.--Any civil action brought under 
subsection (a) in a district court of the United States may be brought 
in the district in which the defendant is found, is an inhabitant, or 
transacts business or wherever venue is proper under section 1391 of 
title 28, United States Code. Process in such an action may be served 
in any district in which the defendant is an inhabitant or in which the 
defendant may be found.
    (f) Actions by Other State Officials.--Nothing in this section may 
be construed to prohibit an authorized State official from proceeding 
in State court on the basis of an alleged violation of any civil or 
criminal statute of the State concerned.
    (g) Definition.--In this section, the term ``attorney general'' 
means the chief legal officer of a State.

SEC. 6. INTERNET SERVICE PROVIDERS.

    (a) Exemption for Certain Transmissions.--The provisions of this 
Act shall not apply to a transmission of electronic mail by an 
interactive computer service provider unless the provider initiates the 
transmission.
    (b) Notice of Transmissions from Commission.--Not later than 72 
hours after receipt from the Commission of notice that its computer 
equipment may have been used by another person to initiate a 
transmission of electronic mail in violation of a provision of section 
3 or 7, an interactive computer service provider shall--
            (1) provide the Commission such information as the 
        Commission requires in order to determine whether or not the 
        computer equipment of the provider was used to initiate the 
        transmission; and
            (2) if the Commission determines that the computer 
        equipment of the provider was used to initiate the 
        transmission, take appropriate actions to terminate the use of 
        its computer equipment by that person.
    (c) Notice of Transmissions From Private Individuals.--
            (1) In general.--Subject to paragraph (2), not later than 
        14 days after receipt from a private person of notice that its 
        computer equipment may have been used by another person to 
        initiate a transmission of electronic mail in violation of a 
        provision of section 3 or 7, an interactive computer service 
        provider shall--
                    (A) transmit the notice to the Commission together 
                with such information as the Commission requires in 
                order to determine whether or not the computer 
                equipment of the provider was used to initiate the 
                transmission; and
                    (B) if the Commission determines that the computer 
                equipment of the provider was used to initiate the 
                transmission, take appropriate actions to terminate the 
                use of its computer equipment by that person.
            (2) Minimum notice requirement.--An interactive computer 
        service provider shall transmit a notice under paragraph (1) 
        with respect to a particular transmission of electronic mail 
        only if the provider receives notice with respect to the 
        transmission from more than 100 private persons.
    (d) Blocking Systems.--
            (1) Requirement.--Each interactive computer service 
        provider shall make available to subscribers to such service a 
        system permitting such subscribers, upon the affirmative 
        electronic request of such subscribers, to block the receipt 
        through such service of any electronic mail that contains the 
        term ``advertisement'' in its subject line.
            (2) Notice of availability.--Upon the applicability of this 
        subsection to an interactive computer service provider, the 
        provider shall--
                    (A) notify each current subscriber, if any, to the 
                service of the blocking system provided for under 
                paragraph (1); and
                    (B) notify any new subscribers to the service of 
                the blocking system.
            (3) Blocking by provider.--An interactive computer service 
        provider may, upon its own initiative, block the receipt 
        through its service of any electronic mail that contains the 
        term ``advertisement'' in its subject line.
            (4) Applicability.--The requirements in paragraphs (1) and 
        (2) shall apply--
                    (A) beginning 1 year after the date of enactment of 
                this Act, in the case of an interactive computer 
                service provider having more than 25,000 or more 
                subscribers; and
                    (B) beginning 2 years after that date, in the case 
                of an interactive computer service provider having less 
                than 25,000 subscribers.
    (e) Records.--An interactive computer service provider shall retain 
records of any action taken on a notice received under this section for 
not less than 2 years after the date of receipt of the notice.
    (f) Construction.--Nothing in this section may be construed to 
require an interactive computer service provider to transmit or 
otherwise deliver any electronic mail message containing the term 
``advertisement'' in its subject line.
    (g) Definition.--In this section, the term ``interactive computer 
service provider'' has the meaning given that term in section 230(e)(2) 
of the Communications Act of 1934 (47 U.S.C. 230(e)(2)).

SEC. 7. RECEIPT OF TRANSMISSIONS BY PRIVATE PERSONS.

    (a) Termination of Transmissions.--
            (1) Request.--A person who receives a transmission of 
        unsolicited commercial electronic mail not otherwise authorized 
        under this section may request, by electronic mail to the same 
        electronic mail address from which the transmission originated, 
        the termination of transmissions of such mail by the person 
        initiating the transmission.
            (2) Deadline.--A person receiving a request for the 
        termination of transmissions of electronic mail under this 
        subsection shall cease initiating transmissions of electronic 
        mail to the person submitting the request not later than 48 
        hours after receipt of the request.
    (b) Affirmative Authorization of Transmissions Without 
Information.--
            (1) In general.--Subject to paragraph (2), a person may 
        authorize another person to initiate transmissions to the 
        person of unsolicited commercial electronic mail without 
        inclusion in such transmissions of the information required by 
        section 3.
            (2) Termination.--
                    (A) Notice.--A person initiating transmissions of 
                electronic mail under paragraph (1) shall include, with 
                each transmission of such mail to a person authorizing 
                the transmission under that paragraph, notice that the 
                person authorizing the transmission may request at any 
                time the recommencement of the inclusion in such 
                transmissions of the information required by section 3.
                    (B) Deadline.--A person receiving a request under 
                this paragraph shall include the information required 
                by section 3 in all transmissions of unsolicited 
                commercial electronic mail to the person making the 
                request beginning not later than 48 hours after receipt 
                of the request.
    (c) Constructive Authorization of Transmissions Without 
Information.--
            (1) In general.--Subject to paragraph (2), a person who 
        secures a good or service from, or otherwise responds 
        electronically to, an offer in a transmission of unsolicited 
        commercial electronic mail shall be deemed to have authorized 
        transmissions of such mail without inclusion of the information 
        required under section 3 from the person who initiates the 
        transmission providing the basis for such authorization.
            (2) Termination.--
                    (A) Request.--A person deemed to have authorized 
                the transmissions of electronic mail under paragraph 
                (1) may request at any time the recommencement of the 
                inclusion in such transmissions of the information 
                required by section 3.
                    (B) Deadline.--A person receiving a request under 
                this paragraph shall include the information required 
                by section 3 in all transmissions of unsolicited 
                commercial electronic mail to the person making the 
                request beginning not later than 48 hours after receipt 
                of the request.
    (d) Effective Date of Termination Requirements.--Subsections (a), 
(b)(2), and (c)(2) shall take effect 30 days after the date of 
enactment of this Act.

SEC. 8. ACTIONS BY PRIVATE PERSONS.

    (a) In General.--Any person adversely affected by a violation of a 
provision of section 3 or 7, or an authorized person acting on such 
person's behalf, may, within 1 year after discovery of the violation, 
bring a civil action in a district court of the United States against a 
person who has violated the provision. Such an action may be brought to 
enjoin the violation, to enforce compliance with the provision, to 
obtain damages, or to obtain such further and other relief as the court 
considers appropriate.
    (b) Damages.--
            (1) In general.--The amount of damages in an action under 
        this section for a violation specified in subsection (a) may 
        not exceed $5,000 per violation.
            (2) Relationship to other damages.--Damages awarded for a 
        violation under this subsection are in addition to any other 
        damages awardable for the violation under any other provision 
        of law.
    (c) Cost and Fees.--The court, in issuing any final order in any 
action brought under subsection (a), may award costs of suit and 
reasonable attorney fees and expert witness fees for the prevailing 
party.
    (d) Venue; Service of Process.--Any civil action brought under 
subsection (a) in a district court of the United States may be brought 
in the district in which the defendant is found, is an inhabitant, or 
transacts business or wherever venue is proper under section 1391 of 
title 28, United States Code. Process in such an action may be served 
in any district in which the defendant is an inhabitant or in which the 
defendant may be found.

SEC. 9. RELATION TO STATE LAWS.

    (a) State Law Applicable Unless Inconsistent.--The provisions of 
this Act do not annul, alter, or affect the applicability to any 
person, or otherwise exempt from the applicability to any person, of 
the laws of any State with respect to the transmission of unsolicited 
commercial electronic, except to the extent that those laws are 
inconsistent with any provision of this Act, and then only to the 
extent of the inconsistency.
    (b) Requirement Relating to Determination of Inconsistency.--The 
Commission may not determine that a State law is inconsistent with a 
provision of this Act if the Commission determines that such law places 
greater restrictions on the transmission of unsolicited commercial 
electronic mail than are provided for under such provision.

SEC. 10. DEFINITIONS.

    In this Act:
            (1) Commercial electronic mail.--The term ``commercial 
        electronic mail'' means any electronic mail that--
                    (A) contains an advertisement for the sale of a 
                product or service;
                    (B) contains a solicitation for the use of a toll-
                free telephone number or a telephone number with a 900 
                prefix the use of which connects the user to a person 
                or service that advertises the sale of or sells a 
                product or service; or
                    (C) contains a list of one or more Internet sites 
                that contain an advertisement referred to in 
                subparagraph (A) or a solicitation referred to in 
                subparagraph (B).
            (2) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (3) State.--The term ``State'' means any State of the 
        United States, the District of Columbia, Puerto Rico, Guam, 
        American Samoa, the United States Virgin Islands, the 
        Commonwealth of the Northern Mariana Islands, the Republic of 
        the Marshall Islands, the Federated States of Micronesia, the 
        Republic of Palau, and any possession of the United States.
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