[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 2542 Introduced in Senate (IS)]







106th CONGRESS
  2d Session
                                S. 2542

   To protect individuals, families, and ISPs from unsolicited bulk 
                           commercial e-mail.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 11, 2000

Mr. Burns (for himself, Mr. Wyden, Mr. Lieberman, Ms. Landrieu, and Mr. 
  Torricelli) introduced the following bill; which was read twice and 
   referred to the Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
   To protect individuals, families, and ISPs from unsolicited bulk 
                           commercial e-mail.

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

SECTION 1. SHORT TITLE; TABLE OF SECTIONS.

    -(a) Short Title.--This Act may be cited as the ``Controlling the 
Assault of Non-Solicited Pornography and Marketing Act of 2000''.
    (b) Table of Sections.--The table of sections for this Act is as 
follows:

Sec. 1. Short title; table of sections.
Sec. 2. Findings.
Sec. 3. Public policy statement.
Sec. 4. Prohibited acts.
Sec. 5. Rules applicable to ISPs.
Sec. 6. Rules applicable to domain registrar information.
Sec. 7. Notification of violators.
Sec. 8. Enforcement of orders.
Sec. 9. Remedies available to ISPs.
Sec. 10. Enforcement by States.
Sec. 11. Effect on other laws.
Sec. 12. Commission study into effects of unsolicited bulk commercial 
                            electronic mail.
Sec. 13. Definitions.
Sec. 14. Effective date.

SEC. 2. FINDINGS.

    The Congress makes the following findings:
            (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 ISPs from having a reasonably 
        predictable, efficient, and economical online experience.
            (3) Unsolicited commercial e-mail can be an important 
        mechanism through which businesses advertise and attract 
        customers in the online environment.
            (4) The receipt of unsolicited commercial e-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 e-mail may impose significant 
        monetary costs on interactive computer 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 interactive computer service, and shifting costs 
        from the sender of the advertisement to the interactive 
        computer service.
            (6) While some senders of unsolicited commercial e-mail 
        provide simple and reliable ways for recipients to reject (or 
        ``opt-out'' of) receipt of unsolicited commercial e-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 e-mail from such senders in the 
        future, or both.
            (7) An increasing number of senders of unsolicited 
        commercial e-mail and unsolicited pandering e-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 e-mail and 
        unsolicited pandering e-mail collect or harvest e-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 e-mail and 
        unsolicited pandering e-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.

SEC. 3. PUBLIC POLICY STATEMENT.

    The Congress makes the following statement of public policy:
            (1) There is substantial government interest in regulation 
        of unsolicited bulk commercial e-mail.
            (2) The cost to the public of Internet use is increased by 
        costs incurred by ISPs for the transmission and retransmission 
        of unsolicited commercial e-mail.
            (3) Recipients of unsolicited commercial e-mail have a 
        right to decline to receive or have their children receive 
        unsolicited commercial e-mail.

SEC. 4. PROHIBITED ACTS.

    (a) Return Address Required.--It is unlawful for any person to 
initiate the transmission of an unsolicited commercial e-mail message 
to any person within the United States unless the message contains a 
valid and legitimately obtained e-mail address, conspicuously 
displayed, to which a recipient may send a reply to the sender asking 
the sender to send no further unsolicited bulk commercial e-mail 
messages to the recipient at the e-mail address at which the message 
was received.
    (b) Transmission After Requested Stop.--It is unlawful for a sender 
to initiate the transmission of an unsolicited bulk commercial e-mail 
message to a recipient who sent a reply under subsection (a) asking the 
sender not to send further such e-mail to the recipient if the e-mail 
message is sent more than 10 days after the sender received the reply.
    (c) Falsification of Transmission Information.--It is unlawful for 
any person to initiate the transmission of an unsolicited commercial e-
mail message to any person in the United States with false or 
misleading e-mail transmission address or routing information. For 
purposes of this subsection, information is misleading if it is 
intended, or reasonably may be expected, to mislead the recipient about 
the origin of the e-mail message or the address to which a reply may be 
sent under subsection (a).
    (d) Sale or Distribution of Prohibited Software.--It is unlawful 
for any person knowingly to sell, give, or otherwise distribute, or to 
possess with the intent to sell, give, or distribute any software, 
that--
            (1) is primarily designed or produced for the purpose of 
        facilitating or enabling the falsification of unsolicited 
        commercial e-mail transmission or routing information;
            (2) has limited commercially-significant purposes or uses 
        other than to facilitate or enable the falsification of e-mail 
        transmission or routing information; or
            (3) is marketed for the purpose of facilitating or enabling 
        the falsification of e-mail transmission or routing 
        information.

SEC. 5. RULES APPLICABLE TO ISPS.

    (a) Transmission Without Compensation.--Notwithstanding any other 
provision of law to the contrary, an ISP may decline to transmit 
unsolicited commercial e-mail messages to its subscribers without 
compensation from the sender.
    (b) ISP Held Harmless for Good Faith Private Enforcement.--An ISP 
is not liable, under any Federal or State civil or criminal law, for 
any action it takes in good faith to block the transmission or receipt 
of unsolicited commercial e-mail.
    (c) Innocent Retransmission.--An ISP the facilities of which are 
used only as an intermediary, retransmitter, or relay for unsolicited 
bulk commercial e-mail transmitted in violation of section 4 is not 
liable for any harm resulting from the transmission or receipt of that 
e-mail unless it permits the transmission or retransmission of such e-
mail with actual knowledge that the transmission is prohibited by 
section 4.

SEC. 6. RULES APPLICABLE TO DOMAIN REGISTRAR INFORMATION.

    (a) Unlawful Disclosure or Use.--It is unlawful for any person 
within the United States to use or disclose domain name registration 
data, obtained from a domain name registrar, domain name registry, or 
other domain registration authority if--
            (1) that use or disclosure violates policies of that 
        registrar, registry, or authority that are clearly and 
        conspicuously posted on its website; and
            (2) the data is used for the purpose of transmitting or 
        enabling the transmission of unsolicited bulk commercial e-mail 
        in violation of section 4.
    (b) No Liability for Failure To Disclose.--Except as provided in 
subsection (c), a domain name registrar, domain name registry, or other 
domain registration authority is not liable from any harm resulting 
from its failure or refusal to disclose domain name registration data 
if that failure or refusal is based on a good faith belief that 
disclosure of the data would result in its being used to transmit, or 
enable the transmission of, an unsolicited commercial e-mail message in 
violation of section 4.
    (c) Limitation.--Subsection (b) does not permit a domain name 
registrar, domain name registry, or other domain registration authority 
to limit or restrict access to domain name registration data if that 
access is sought for the purpose of--
            (1) enforcing intellectual property rights;
            (2) law enforcement; or
            (3) consumer protection.

SEC. 7. NOTIFICATION OF VIOLATORS.

    (a) Notification Process.--
            (1) In general.--The Commission shall send a notification 
        of alleged violation to any person who violates section 4 if--
                    (A) the Commission has been notified, in such form 
                and manner as the Commission may prescribe, by a 
                recipient or Internet Service Provider that an 
                unsolicited bulk commercial e-mail message has been 
                received that was transmitted in violation of section 
                4; or
                    (B) the Commission has other reason to believe that 
                such person has violated or is violating section 4.
            (2) Recipient's children to be personally identified.--If 
        requested by a recipient of an unsolicited bulk commercial e-
        mail message that was transmitted in violation of section 4, 
        the Commission shall include the e-mail address of any child of 
        the recipient in the notice.
            (3) Terms of notification.--The notification shall--
                    (A) direct the person to which it is addressed to 
                refrain from initiating or transmitting further 
                unsolicited bulk commercial e-mail messages to any e-
                mail address described in the notification or to an 
                Internet Service Provider designated in the 
                notification more than 10 days after the date on which 
                the notification is issued; and
                    (B) direct that person to delete, immediately, the 
                e-mail address of any recipient or recipient's child 
                named in the notification from all of that person's e-
                mail directories or mailing lists (except for the 
                purpose of complying with the notification); and
                    (C) prohibit that person from transferring, with or 
                without consideration, or otherwise making available, 
                to any other person a mailing list that contains the e-
                mail address of any recipient or recipient's child 
                named in the notification (except for the purpose of 
                complying with the notification).
    (b) Enforcement of Notification Terms.--
            (1) Notice.--If the Commission finds that a person has 
        failed to comply with the terms of a notification issued under 
        subsection (a), the Commission shall serve a complaint, by 
        registered or certified mail, on that person--
                    (A) setting forth the Commission's finding and the 
                reasons therefore; and
                    (B) requiring that person to respond in writing to 
                the Commission within 15 days after the date on which 
                the complaint was served setting forth any defense, in 
                fact or in law, to the Commission's finding.
            (2) 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) Enforcement by Court Order.--
            (1) In general.--Any district court of the United States 
        within the jurisdiction of which an e-mail transmission is sent 
        or received in violation of a notification given under or the 
        regulations prescribed under section 4 shall have jurisdiction, 
        upon application by the Attorney General, to issue an order 
        commanding compliance with such notice. Failure to observe such 
        order may be punishable by the court as contempt thereof.
            (2) Remedy not exclusive.--The remedy provided by paragraph 
        (1) is in addition to any enforcement by the Commission under 
        section 9.

SEC. 8. ENFORCEMENT OF ORDERS.

    (a) In General.--Except as otherwise provided in this Act, this Act 
shall be enforced by the Commission in the same manner as a trade 
regulation of the Commission.
    (b) Actions by the Commission.--The Commission shall prevent any 
person from violating this Act in the same manner, by the same means, 
and with the same jurisdiction, powers, and duties as though all 
applicable terms and provisions of the Federal Trade Commission Act (15 
U.S.C. 41 et seq.) were incorporated into and made a part of this Act. 
Any entity that violates any provision of that title is subject to the 
penalties and entitled to the privileges and immunities provided in the 
Federal Trade Commission Act in the same manner, by the same means, and 
with the same jurisdiction, power, and duties as though all applicable 
terms and provisions of the Federal Trade Commission Act were 
incorporated into and made a part of that title.

SEC. 9. REMEDIES AVAILABLE TO ISPS.

    (a) In General.--An ISP adversely affected by a violation of 
section 4 may bring a civil action in any district court of the United 
States with jurisdiction over the defendant--
            (1) to enjoin further violation of that section by the 
        defendant;
            (2) to recover actual damages incurred by the ISP as a 
        result of that violation; and
            (3) to recover, in addition to such actual damages, an 
        amount equal to the greater of--
                    (A) $1 for each unsolicited bulk commercial e-mail 
                message transmitted in violation of section 4 that 
                caused the ISP to suffer harm; or
                    (B) $50,000 for each day on which the defendant 
                committed the violation that caused the ISP to suffer 
                harm.
    (b) Willful Violation.--If the court finds that the defendant 
committed the violation willfully and knowingly, the court may increase 
the amount recoverable under subsection (a)(3) threefold.
    (c) Court Costs; Attorneys Fees.--The court, in any action brought 
under subsection (a), may award court costs, including the cost of 
service of process, expert witness fees, and reasonable attorneys' fees 
to the prevailing party.
    (d) Protection of Trade Secrets.--At the request of any party to an 
action brought under subsection (a), the court may issue appropriate 
protective orders and conduct proceedings in such a way as to protect 
the secrecy and security of any computer, computer network, computer 
data, computer program, and computer software involved in the action to 
the extent necessary--
            (1) to protect the trade secrets of any party; and
            (2) to prevent the possible recurrence of a violation.

SEC. 10. ENFORCEMENT BY STATES.

    (a) In General.--
            (1) Civil actions.--In any case in which the attorney 
        general of a State has reason to believe that an interest of 
        the residents of that State has been or is threatened or 
        adversely affected by the engagement of any person in a 
        practice that violates section 4, the State, as parens patriae, 
        may bring a civil action on behalf of the residents of the 
        State in a district court of the United States of appropriate 
        jurisdiction to--
                    (A) enjoin that practice;
                    (B) enforce compliance with the rule;
                    (C) obtain damage, restitution, or other 
                compensation on behalf of residents of the State; or
                    (D) obtain such other relief as the court may 
                consider to be appropriate.
            (2) Notice.--
                    (A) In general.--Before filing an action under 
                paragraph (1), the attorney general of the State 
                involved shall provide to the Commission--
                            (i) written notice of that action; and
                            (ii) a copy of the complaint for that 
                        action.
                    (B) Exemption.--
                            (i) In general.--Subparagraph (A) shall not 
                        apply with respect to the filing of an action 
                        by an attorney general of a State under this 
                        subsection, if the attorney general determines 
                        that it is not feasible to provide the notice 
                        described in that subparagraph before the 
                        filing of the action.
                            (ii) Notification.--In an action described 
                        in clause (i), the attorney general of a State 
                        shall provide notice and a copy of the 
                        complaint to the Commission at the same time as 
                        the attorney general files the action.
    (b) Intervention.--
            (1) In general.--On receiving notice under subsection 
        (a)(2), the Commission shall have the right to intervene in the 
        action that is the subject of the notice.
            (2) Effect of intervention.--If the Commission intervenes 
        in an action under subsection (a), it shall have the right--
                    (A) to be heard with respect to any matter that 
                arises in that action; and
                    (B) to file a petition for appeal.
    (c) Construction.--For purposes of bringing any civil action under 
subsection (a), nothing in this Act shall be construed to prevent an 
attorney general of a State from exercising the powers conferred on the 
attorney general by the laws of that State to--
            (1) conduct investigations;
            (2) administer oaths or affirmations; or
            (3) compel the attendance of witnesses or the production of 
        documentary and other evidence.
    (d) Venue; Service of Process.--
            (1) Venue.--Any action brought under subsection (a) may be 
        brought in the district court of the United States that meets 
        applicable requirements relating to venue under section 1391 of 
        title 28, United States Code.
            (2) Service of process.--In an action brought under 
        subsection (a), process may be served in any district in which 
        the defendant--
                    (A) is an inhabitant; or
                    (B) may be found.

SEC. 11. EFFECT ON OTHER LAWS.

    (a) No Effect on Criminal 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.--
            (1) In general.--No State or political subdivision of a 
        State may impose civil liability for any commercial activity or 
        other act in interstate or foreign commerce in violation of 
        section 4 that is inconsistent with the treatment of that 
        activity or act under this Act.
            (2) Exception.--Paragraph (1) does not preempt--
                    (A) any civil remedy available under State or local 
                trespass law; or
                    (B) any Federal, State, or local criminal law, or 
                any civil remedy available under such law, relating to 
                acts of computer fraud or abuse arising from the 
                unauthorized transmission of unsolicited commercial e-
                mail messages.

SEC. 12. COMMISSION STUDY INTO EFFECTS OF UNSOLICITED BULK COMMERCIAL 
              ELECTRONIC MAIL.

    Not later than 18 months after the date of enactment of this Act, 
the Commission shall submit to Congress a report on--
            (1) the effectiveness of this Act in preventing or reducing 
        the volume of unsolicited bulk commercial e-mail;
            (2) enforcement actions taken under this Act; and
            (3) the need, if any, for Congress to modify the provisions 
        of this Act.

SEC. 13. DEFINITIONS.

    In this Act:
            (1) Child.--The term ``child'' means an individual under 
        the age of 13.
            (2) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (3) Domain name.--The term ``domain name'' means an 
        alphanumeric designation which is registered with or assigned 
        by a domain name registrar, domain name registry, or other 
        domain name registration authority as part of an electronic 
        address on the Internet.
            (4) E-mail address.--
                    (A) In general.--The term ``e-mail address'' means 
                a destination (commonly expressed as a string of 
                characters) to which e-mail can be sent or delivered.
                    (B) Inclusion.--In the case of the Internet, the 
                term ``e-mail address'' may include an e-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'').
            (5) Internet.--The term ``Internet'' means collectively the 
        myriad of computer and telecommunications facilities, including 
        equipment and operating software, which comprise the 
        interconnected world-wide network of networks that employ the 
        Transmission Control Protocol/Internet Protocol, or any 
        predecessor or successor protocols to such protocol, to 
        communicate information of all kinds by wire or radio.
            (6) ISP.--The term ``ISP'' means a service that enables 
        users to access content, information, e-mail, or other services 
        offered over the Internet and may also include access to 
        proprietary content, information, and other services as part of 
        a package of services offered to consumers. Such term does not 
        include telecommunications services.
            (7) Sender.--The term ``sender'' when used with respect to 
        an e-mail message--
                    (A) means the person who initiated the transmission 
                of such message, or caused the initiation of the 
                transmission of that message; but
                    (B) does not include--
                            (i) an ISP whose role is limited to 
                        handling, transmission, or retransmission of 
                        that message; or
                            (ii) any other person affiliated with the 
                        person who initiated or caused the 
                        transmission.
            (8) Pre-existing business relationship.--The term ``pre-
        existing business relationship'' means that, before the message 
        was transmitted--
                    (A) the sender and the recipient had a business 
                relationship within the preceding 60 months;
                    (B) the recipient requested information contained 
                in the message; or
                    (C) the recipient was given an opportunity, by the 
                sender, to request that the sender not transmit 
                messages to the recipient and has not made such a 
                request.
            (9) Recipient.--The term ``recipient'' when used with 
        respect to an e-mail message means any addressee of that 
        message.
            (10) Commercial e-mail message.--The term ``commercial e-
        mail message'' means an e-mail message the primary purpose of 
        which is to propose a commercial transaction or to advertise a 
        commercial product or service. An e-mail message shall not be 
        considered to be a commercial e-mail message solely because it 
        includes a reference to a commercial entity.
            (11) Unsolicited commercial e-mail message.--The term 
        ``unsolicited commercial e-mail message'' means any commercial 
        e-mail message sent with the intent that the message be 
        received by a recipient with whom the sender does not have a 
        pre-existing business or personal relationship.
            (12) Unsolicited bulk commercial e-mail message.--The term 
        ``unsolicited bulk commercial e-mail message'' means at least 
        50 substantially identical unsolicited commercial e-mail 
        messages whether sent simultaneously, in packets of less than 
        50, or individually.

SEC. 14. EFFECTIVE DATE.

    This Act shall take effect 90 days after the date of enactment.
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