[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3113 Referred in Senate (RFS)]







106th CONGRESS
  2d Session
                                H. R. 3113


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 19, 2000

    Received, read twice and referred to the Committee on Commerce, 
                      Science, and Transportation

_______________________________________________________________________

                                 AN ACT


 
 To protect individuals, families, and Internet service providers from 
               unsolicited and unwanted electronic mail.

    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 Act of 2000''.

SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.

    (a) Findings.--The Congress finds the following:
            (1) There is a right of free speech on the Internet.
            (2) The Internet has increasingly become a critical mode of 
        global communication and now presents unprecedented 
        opportunities for the development and growth of global commerce 
        and an integrated worldwide economy. In order for global 
        commerce on the Internet to reach its full potential, 
        individuals and entities using the Internet and other online 
        services should be prevented from engaging in activities that 
        prevent other users and Internet service providers from having 
        a reasonably predictable, efficient, and economical online 
        experience.
            (3) Unsolicited commercial electronic mail can be an 
        important mechanism through which businesses advertise and 
        attract customers in the online environment.
            (4) The receipt of unsolicited commercial electronic mail 
        may result in costs to recipients who cannot refuse to accept 
        such mail and who incur costs for the storage of such mail, or 
        for the time spent accessing, reviewing, and discarding such 
        mail, or for both.
            (5) Unsolicited commercial electronic mail may impose 
        significant monetary costs on Internet access services, 
        businesses, and educational and nonprofit institutions that 
        carry and receive such mail, as there is a finite volume of 
        mail that such providers, businesses, and institutions can 
        handle without further investment. The sending of such mail is 
        increasingly and negatively affecting the quality of service 
        provided to customers of Internet access service, and shifting 
        costs from the sender of the advertisement to the Internet 
        access service.
            (6) While some senders of unsolicited commercial electronic 
        mail messages provide simple and reliable ways for recipients 
        to reject (or ``opt-out'' of) receipt of unsolicited commercial 
        electronic mail from such senders in the future, other senders 
        provide no such ``opt-out'' mechanism, or refuse to honor the 
        requests of recipients not to receive electronic mail from such 
        senders in the future, or both.
            (7) An increasing number of senders of unsolicited 
        commercial electronic mail purposefully disguise the source of 
        such mail so as to prevent recipients from responding to such 
        mail quickly and easily.
            (8) Many senders of unsolicited commercial electronic mail 
        collect or harvest electronic mail addresses of potential 
        recipients without the knowledge of those recipients and in 
        violation of the rules or terms of service of the database from 
        which such addresses are collected.
            (9) Because recipients of unsolicited commercial electronic 
        mail are unable to avoid the receipt of such mail through 
        reasonable means, such mail may invade the privacy of 
        recipients.
            (10) In legislating against certain abuses on the Internet, 
        Congress should be very careful to avoid infringing in any way 
        upon constitutionally protected rights, including the rights of 
        assembly, free speech, and privacy.
    (b) Congressional Determination of Public Policy.--On the basis of 
the findings in subsection (a), the Congress determines that--
            (1) there is substantial government interest in regulation 
        of unsolicited commercial electronic mail;
            (2) Internet service providers should not be compelled to 
        bear the costs of unsolicited commercial electronic mail 
        without compensation from the sender; and
            (3) recipients of unsolicited commercial electronic mail 
        have a right to decline to receive or have their children 
        receive unsolicited commercial electronic mail.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Children.--The term ``children'' includes natural 
        children, stepchildren, adopted children, and children who are 
        wards of or in custody of the parent, who have not attained the 
        age of 18 and who reside with the parent or are under his or 
        her care, custody, or supervision.
            (2) Commercial electronic mail message.--The term 
        ``commercial electronic mail message'' means any electronic 
        mail message that primarily advertises or promotes the 
        commercial availability of a product or service for profit or 
        invites the recipient to view content on an Internet web site 
        that is operated for a commercial purpose. An electronic mail 
        message shall not be considered to be a commercial electronic 
        mail message solely because such message includes a reference 
        to a commercial entity that serves to identify the initiator.
            (3) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (4) Domain name.--The term ``domain name'' means any 
        alphanumeric designation which is registered with or assigned 
        by any domain name registrar, domain name registry, or other 
        domain name registration authority as part of an electronic 
        address on the Internet.
            (5) Electronic mail address.--
                    (A) In general.--The term ``electronic mail 
                address'' means a destination (commonly expressed as a 
                string of characters) to which electronic mail can be 
                sent or delivered.
                    (B) Inclusion.--In the case of the Internet, the 
                term ``electronic mail address'' may include an 
                electronic mail address consisting of a user name or 
                mailbox (commonly referred to as the ``local part'') 
                and a reference to an Internet domain (commonly 
                referred to as the ``domain part'').
            (6) Internet.--The term ``Internet'' has the meaning given 
        that term in section 231(e)(3) of the Communications Act of 
        1934 (47 U.S.C. 231(e)(3)).
            (7) Internet access service.--The term ``Internet access 
        service'' has the meaning given that term in section 231(e)(4) 
        of the Communications Act of 1934 (47 U.S.C. 231(e)(4)).
            (8) Initiate.--The term ``initiate'', when used with 
        respect to a commercial electronic mail message, means to 
        originate such message or to procure the transmission of such 
        message.
            (9) Initiator.--The term ``initiator'', when used with 
        respect to a commercial electronic mail message, means the 
        person who initiates such message. Such term does not include a 
        provider of an Internet access service whose role with respect 
        to the message is limited to handling, transmitting, 
        retransmitting, or relaying the message.
            (10) Pre-existing business relationship.--The term ``pre-
        existing business relationship'' means, when used with respect 
        to the initiator and recipient of a commercial electronic mail 
        message, that either of the following circumstances exist:
                    (A) Previous business transaction.--
                            (i) Within the 5-year period ending upon 
                        receipt of such message, there has been a 
                        business transaction between the initiator and 
                        the recipient (including a transaction 
                        involving the provision, free of charge, of 
                        information requested by the recipient, of 
                        goods, or of services); and
                            (ii) the recipient was, at the time of such 
                        transaction or thereafter, provided a clear and 
                        conspicuous notice of an opportunity not to 
                        receive further messages from the initiator and 
                        has not exercised such opportunity.
                    (B) Opt in.--The recipient has given the initiator 
                permission to initiate commercial electronic mail 
                messages to the electronic mail address of the 
                recipient and has not subsequently revoked such 
                permission.
            (11) Recipient.--The term ``recipient'', when used with 
        respect to a commercial electronic mail message, means the 
        addressee of such message.
            (12) Unsolicited commercial electronic mail message.--The 
        term ``unsolicited commercial electronic mail message'' means 
        any commercial electronic mail message that is sent by the 
        initiator to a recipient with whom the initiator does not have 
        a pre-existing business relationship.

SEC. 4. CRIMINAL PENALTY FOR UNSOLICITED COMMERCIAL ELECTRONIC MAIL 
              CONTAINING FRAUDULENT ROUTING INFORMATION.

    Section 1030 of title 18, United States Code, is amended--
            (1) in subsection (a)(5)--
                    (A) in subparagraph (B), by striking ``or'' at the 
                end;
                    (B) in subparagraph (C), by inserting ``or'' after 
                the semicolon at the end; and
                    (C) by adding at the end the following new 
                subparagraph:
            ``(D) intentionally initiates the transmission of any 
        unsolicited commercial electronic mail message to a protected 
        computer in the United States with knowledge that any domain 
        name, header information, date or time stamp, originating 
        electronic mail address, or other information identifying the 
        initiator or the routing of such message, that is contained in 
        or accompanies such message, is false or inaccurate;'';
            (2) in subsection (c)(2)(A)--
                    (A) by inserting ``(i)'' after ``in the case of''; 
                and
                    (B) by inserting before ``; and'' the following: 
                ``, or (ii) an offense under subsection (a)(5)(D) of 
                this section''; and
            (3) in subsection (e)--
                    (A) by striking ``and'' at the end of paragraph 
                (8);
                    (B) by striking the period at the end of paragraph 
                (9) and inserting a semicolon; and
                    (C) by adding at the end the following new 
                paragraph:
            ``(10) the terms `initiate', `initiator', `unsolicited 
        commercial electronic mail message', and `domain name' have the 
        meanings given such terms in section 3 of the Unsolicited 
        Commercial Electronic Mail Act of 2000.''.

SEC. 5. OTHER PROTECTIONS AGAINST UNSOLICITED COMMERCIAL ELECTRONIC 
              MAIL.

    (a) Requirements for Transmission of Messages.--
            (1) Inclusion of return address in commercial electronic 
        mail.--It shall be unlawful for any person to initiate the 
        transmission of a commercial electronic mail message to any 
        person within the United States unless such message contains a 
        valid electronic mail address, conspicuously displayed, to 
        which a recipient may send a reply to the initiator to indicate 
        a desire not to receive any further messages.
            (2) Prohibition of transmission of unsolicited commercial 
        electronic mail after objection.--If a recipient makes a 
        request to a person to be removed from all distribution lists 
        under the control of such person, it shall be unlawful for such 
        person to initiate the transmission of an unsolicited 
        commercial electronic mail message to such a recipient within 
        the United States after the expiration, after receipt of such 
        request, of a reasonable period of time for removal from such 
        lists. Such a request shall be deemed to terminate a pre-
        existing business relationship for purposes of determining 
        whether subsequent messages are unsolicited commercial 
        electronic mail messages.
            (3) Inclusion of identifier and opt-out in unsolicited 
        commercial electronic mail.--It shall be unlawful for any 
        person to initiate the transmission of any unsolicited 
        commercial electronic mail message to any person within the 
        United States unless the message provides, in a manner that is 
        clear and conspicuous to the recipient--
                    (A) identification that the message is an 
                unsolicited commercial electronic mail message; and
                    (B) notice of the opportunity under paragraph (2) 
                not to receive further unsolicited commercial 
                electronic mail messages from the initiator.
    (b) Enforcement of Policies by Internet Access Service Providers.--
            (1) Prohibition of transmissions in violation of posted 
        policy.--It shall be unlawful for any person to initiate the 
        transmission of an unsolicited commercial electronic mail 
        message to any person within the United States in violation of 
        a policy governing the use of the equipment of a provider of 
        Internet access service for transmission of unsolicited 
        commercial electronic mail messages that meets the requirements 
        of paragraph (2).
            (2) Requirements for enforceability.--The requirements 
        under this paragraph for a policy regarding unsolicited 
        commercial electronic mail messages are as follows:
                    (A) Clarity.--The policy shall explicitly provide 
                that compliance with a rule or set of rules is a 
                condition of use of the equipment of a provider of 
                Internet access service to deliver commercial 
                electronic mail messages.
                    (B) Publicly availability.--The policy shall be 
                publicly available by at least one of the following 
                methods:
                            (i) Web posting.--The policy is clearly and 
                        conspicuously posted on a World Wide Web site 
                        of the provider of Internet access service, 
                        which has an Internet domain name that is 
                        identical to the Internet domain name of the 
                        electronic mail address to which the rule or 
                        set of rules applies.
                            (ii) Notification in compliance with 
                        technological standard.--Such policy is made 
                        publicly available by the provider of Internet 
                        access service in accordance with a 
                        technological standard adopted by an 
                        appropriate Internet standards setting body 
                        (such as the Internet Engineering Task Force) 
                        and recognized by the Commission by rule as a 
                        fair standard.
                    (C) Internal opt-out list.--If the policy of a 
                provider of Internet access service requires 
                compensation specifically for the transmission of 
                unsolicited commercial electronic mail messages into 
                its system, the provider shall provide an option to its 
                subscribers not to receive any unsolicited commercial 
                electronic mail messages, except that such option is 
                not required for any subscriber who has agreed to 
                receive unsolicited commercial electronic mail messages 
                in exchange for discounted or free Internet access 
                service.
            (3) Other enforcement.--Nothing in this Act shall be 
        construed to prevent or limit, in any way, a provider of 
        Internet access service from enforcing, pursuant to any remedy 
        available under any other provision of Federal, State, or local 
        criminal or civil law, a policy regarding unsolicited 
        commercial electronic mail messages.
    (c) Protection of Internet Access Service Providers.--
            (1) Good faith efforts to block transmissions.--A provider 
        of Internet access service shall not be liable, under any 
        Federal, State, or local civil or criminal law, for any action 
        it takes in good faith to block the transmission or receipt of 
        unsolicited commercial electronic mail messages.
            (2) Innocent Retransmission.--A provider of Internet access 
        service the facilities of which are used only to handle, 
        transmit, retransmit, or relay an unsolicited commercial 
        electronic mail message transmitted in violation of subsection 
        (a) shall not be liable for any harm resulting from the 
        transmission or receipt of such message unless such provider 
        permits the transmission or retransmission of such message with 
        actual knowledge that the transmission is prohibited by 
        subsection (a) or subsection (b)(1).

SEC. 6. ENFORCEMENT.

    (a) Governmental Order.--
            (1) Notification of alleged violation.--The Commission 
        shall send a notification of alleged violation to any person 
        who violates section 5 if--
                    (A) a recipient or a provider of Internet access 
                service notifies the Commission, in such form and 
                manner as the Commission shall determine, that a 
                transmission has been received in violation of section 
                5; or
                    (B) the Commission has other reason to believe that 
                such person has violated or is violating section 5.
            (2) Terms of notification.--A notification of alleged 
        violation shall--
                    (A) identify the violation for which the 
                notification was issued;
                    (B) direct the initiator to refrain from further 
                violations of section 5;
                    (C) expressly prohibit the initiator (and the 
                agents or assigns of the initiator) from further 
                initiating unsolicited commercial electronic mail 
                messages in violation of section 5 to the designated 
                recipients or providers of Internet access service, 
                effective on the third day (excluding Saturdays, 
                Sundays, and legal public holidays) after receipt of 
                the notification; and
                    (D) direct the initiator (and the agents or assigns 
                of the initiator) to delete immediately the names and 
                electronic mail addresses of the designated recipients 
                or providers from all mailing lists owned or controlled 
                by the initiator (or such agents or assigns) and 
                prohibit the initiator (and such agents or assigns) 
                from the sale, lease, exchange, license, or other 
                transaction involving mailing lists bearing the names 
                and electronic mail addresses of the designated 
                recipients or providers.
            (3) Coverage of minor children by notification.--Upon 
        request of a recipient of an electronic mail message 
        transmitted in violation of section 5, the Commission shall 
        include in the notification of alleged violation the names and 
        electronic mail addresses of any child of the recipient.
            (4) Enforcement of notification terms.--
                    (A) Complaint.--If the Commission believes that the 
                initiator (or the agents or assigns of the initiator) 
                has failed to comply with the terms of a notification 
                issued under this subsection, the Commission shall 
                serve upon the initiator (or such agents or assigns), 
                by registered or certified mail, a complaint stating 
                the reasons for its belief and request that any 
                response thereto be filed in writing with the 
                Commission within 15 days after the date of such 
                service.
                    (B) Hearing and order.--If the Commission, after an 
                opportunity for a hearing on the record, determines 
                that the person upon whom the complaint was served 
                violated the terms of the notification, the Commission 
                shall issue an order directing that person to comply 
                with the terms of the notification.
                    (C) Presumption.--For purposes of a determination 
                under subparagraph (B), receipt of any transmission in 
                violation of a notification of alleged violation 30 
                days (excluding Saturdays, Sundays, and legal public 
                holidays) or more after the effective date of the 
                notification shall create a rebuttable presumption that 
                such transmission was sent after such effective date.
            (5) Enforcement by court order.--Any district court of the 
        United States within the jurisdiction of which any transmission 
        is sent or received in violation of a notification given under 
        this subsection shall have jurisdiction, upon application by 
        the Attorney General, to issue an order commanding compliance 
        with such notification. Failure to observe such order may be 
        punishable by the court as contempt thereof.
    (b) Private Right of Action.--
            (1) Actions authorized.--A recipient or a provider of 
        Internet access service may, if otherwise permitted by the laws 
        or rules of court of a State, bring in an appropriate court of 
        that State, or may bring in an appropriate Federal court if 
        such laws or rules do not so permit, either or both of the 
        following actions:
                    (A) An action based on a violation of section 5 to 
                enjoin such violation.
                    (B) An action to recover for actual monetary loss 
                from such a violation in an amount equal to the 
                greatest of--
                            (i) the amount of such actual monetary 
                        loss; or
                            (ii) $500 for each such violation, not to 
                        exceed a total of $50,000.
            (2) Additional remedies.--If the court finds that the 
        defendant willfully, knowingly, or repeatedly violated section 
        5, the court may, in its discretion, increase the amount of the 
        award to an amount equal to not more than three times the 
        amount available under paragraph (1).
            (3) Attorney Fees.--In any such action, the court may, in 
        its discretion, require an undertaking for the payment of the 
        costs of such action, and assess reasonable costs, including 
        reasonable attorneys' fees, against any party.
            (4) Protection of trade secrets.--At the request of any 
        party to an action brought pursuant to this subsection or any 
        other participant in such an action, the court may, in its 
        discretion, issue protective orders and conduct legal 
        proceedings in such a way as to protect the secrecy and 
        security of the computer, computer network, computer data, 
        computer program, and computer software involved in order to 
        prevent possible recurrence of the same or a similar act by 
        another person and to protect any trade secrets of any such 
        party or participant.

SEC. 7. EFFECT ON OTHER LAWS.

    (a) Federal Law.--Nothing in this Act shall be construed to impair 
the enforcement of section 223 or 231 of the Communications Act of 
1934, chapter 71 (relating to obscenity) or 110 (relating to sexual 
exploitation of children) of title 18, United States Code, or any other 
Federal criminal statute.
    (b) State Law.--No State or local government may impose any civil 
liability for commercial activities or actions in interstate or foreign 
commerce in connection with an activity or action described in section 
5 of this Act that is inconsistent with the treatment of such 
activities or actions under this Act, except that this Act shall not 
preempt any civil remedy under State trespass or contract law or under 
any provision of Federal, State, or local criminal law or any civil 
remedy available under such law that relates to acts of computer fraud 
or abuse arising from the unauthorized transmission of unsolicited 
commercial electronic mail messages.

SEC. 8. STUDY OF EFFECTS OF UNSOLICITED COMMERCIAL ELECTRONIC MAIL.

    Not later than 18 months after the date of the enactment of this 
Act, the Federal Trade Commission shall submit a report to the Congress 
that provides a detailed analysis of the effectiveness and enforcement 
of the provisions of this Act and the need (if any) for the Congress to 
modify such provisions.

SEC. 9 SEPARABILITY.

    If any provision of this Act or the application thereof to any 
person or circumstance is held invalid, the remainder of this Act and 
the application of such provision to other persons or circumstances 
shall not be affected.

SEC. 10. EFFECTIVE DATE.

    The provisions of this Act shall take effect 90 days after the date 
of the enactment of this Act.

            Passed the House of Representatives July 18, 2000.

            Attest:

                                                 Jeff Trandahl,

                                                                 Clerk.