[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 718 Reported in House (RH)]






                                                  Union Calendar No. 43
107th CONGRESS
  1st Session
                                H. R. 718

                  [Report No. 107-41, Parts I and II]

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


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           February 14, 2001

   Mrs. Wilson (for herself, Mr. Green of Texas, Mr. Gary Miller of 
  California, Mr. Goodlatte, Mr. Pickering, Mr. Deal of Georgia, Mr. 
 Largent, Mr. Fossella, Mr. Walden of Oregon, Mr. Bryant, Mr. Tauzin, 
Mr. Gillmor, Mr. Frelinghuysen, Ms. Carson of Indiana, Mr. Kildee, Mr. 
English, Mr. Levin, Mr. Simmons, Ms. Eshoo, Mr. Hinchey, Mr. Terry, Mr. 
Rush, Mr. Bonior, Mr. Horn, Mrs. Emerson, Mr. Engel, Mrs. Jo Ann Davis 
   of Virginia, Ms. DeGette, Ms. Harman, Mr. Moore, Mr. Shimkus, Mr. 
  Barrett, Mr. Boucher, Mr. Greenwood, Ms. McCarthy of Missouri, Mr. 
 Cramer, Mr. Sessions, Mr. Gordon, Mr. Shows, Mr. Frank, Ms. McKinney, 
  Mr. Holt, Mr. Sandlin, Mr. Sawyer, Mr. Strickland, Mr. Weller, Mr. 
  King, Mr. Baker, Ms. Hart, Mr. Pitts, Mr. Udall of New Mexico, Mr. 
  Luther, Mr. Reyes, Ms. Pelosi, Mr. Frost, Mr. Ehrlich, Mr. Burr of 
 North Carolina, Mr. Aderholt, Mr. Wolf, Mr. Isakson, Mrs. Cubin, Mr. 
  Barton of Texas, Mr. Stearns, Mr. Oxley, Ms. Dunn, Mr. Hastings of 
 Washington, Mr. Stupak, and Mr. Blunt) introduced the following bill; 
  which was referred to the Committee on Energy and Commerce, and in 
    addition to the Committee on the Judiciary, for a period to be 
subsequently determined by the Speaker, in each case for consideration 
  of such provisions as fall within the jurisdiction of the committee 
                               concerned

                             April 4, 2001

  Reported from the Committee on Energy and Commerce with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

                             April 4, 2001

Referral to the Committee on the Judiciary extended for a period ending 
                      not later than June 5, 2001

                              June 5, 2001

  Additional sponsors: Mr. Hall of Texas, Mr. Skeen, Mr. Skelton, Mr. 
 Sweeney, Mr. McHugh, Mr. Honda, Mr. Davis of Florida, Mr. Blumenauer, 
 Mr. Bentsen, Mr. Radanovich, Mr. Hayworth, Ms. Hooley of Oregon, Mr. 
Baldacci, Mrs. Biggert, Mr. Thornberry, Ms. Granger, Ms. Pryce of Ohio, 
  Mr. Hunter, Mr. Cunningham, Mr. Hayes, Mr. Watkins, Mr. Ehlers, Mr. 
 Doolittle, Mr. Whitfield, Mr. Brady of Texas, Mr. Lewis of Kentucky, 
   Ms. Schakowsky, Mr. Graham, Mr. Chabot, Mr. Flake, Mr. Issa, Mr. 
   Berman, Mr. Crenshaw, Mr. Langevin, Mr. Ramstad, Mr. Gibbons, Ms. 
 Jackson-Lee of Texas, Mr. Souder, Mr. Gilman, Mr. Dingell, Mr. DeLay, 
  Mr. Brown of South Carolina, Mr. Riley, Mr. Grucci, Mr. Walsh, Mr. 
                       Sherwood, and Mr. Shuster

                              June 5, 2001

    Reported from the Committee on the Judiciary with an amendment, 
   committed to the Committee of the Whole House on the State of the 
                    Union, and ordered to be printed
 [Strike out all after the enacting clause and insert the part printed 
                           in boldface roman]
    [For text of introduced bill, see copy of bill as introduced on 
                           February 14, 2001]

_______________________________________________________________________

                                 A BILL


 
 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 2001''.

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) Affiliate.--The term ``affiliate'' means, with respect 
        to an entity, any other entity that--
                    (A) controls, is controlled by, or is under common 
                control with such entity; and
                    (B) provides marketing information to, receives 
                marketing information from, or shares marketing 
                information with such entity.
            (2) 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.
            (3) 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.
            (4) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (5) 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.
            (6) 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'').
            (7) FTC Act.--The term ``FTC Act'' means the Federal Trade 
        Commission Act (15 U.S.C. 41 et seq.).
            (8) Initiate.--The term ``initiate'', when used with 
        respect to a commercial electronic mail message, means to 
        originate such message or to procure the origination 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, or any other person, 
        whose role with respect to the message is limited to the 
        transmission, routing, relaying, handling, or storing, through 
        an automatic technical process, of a message originated by 
        others.
            (10) 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)).
            (11) 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)).
            (12) Recipient consent.--The term ``recipient consent'', 
        when used with respect to a commercial electronic mail message, 
        means that--
                    (A) the message falls within the scope of an 
                express and unambiguous invitation or consent granted 
                by the recipient and not subsequently revoked;
                    (B) the recipient had clear and conspicuous notice, 
                at the time such invitation or consent was granted, 
                of--
                            (i) the fact that the recipient was 
                        granting the invitation or consent;
                            (ii) the scope of the invitation or 
                        consent, including what types of commercial 
                        electronic mail messages would be covered by 
                        the invitation or consent and what senders or 
                        types of senders, if any, other than the party 
                        to whom the invitation or consent  was 
communicated would be covered by the invitation or consent; and
                            (iii) a reasonable and effective mechanism 
                        for revoking the invitation or consent; and
                    (C) the recipient has not, after granting the 
                invitation or consent, submitted a request under 
                section 5(a)(1) not to receive unsolicited commercial 
                electronic mail messages from the initiator.
            (13) 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--
                    (A) within the 5-year period ending upon receipt of 
                such message, there has been a business transaction 
                (including a transaction involving the provision, free 
                of charge, of information, goods, or services, that 
                were requested by the recipient) between--
                            (i) the initiator or any affiliate of the 
                        initiator; and
                            (ii) the recipient; and
                    (B) the recipient was, at the time of such 
                transaction or thereafter or in the transmission of the 
                commercial electronic mail message, provided a clear 
                and conspicuous notice of an opportunity not to receive 
                further messages from the initiator and any affiliates 
                of the initiator and has not exercised such 
                opportunity.
            (14) Recipient.--The term ``recipient'', when used with 
        respect to a commercial electronic mail message, means the 
        addressee of such message. If an addressee of a commercial 
        electronic mail message has one or more electronic mail 
        addresses in addition to the address to which the message was 
        addressed, the addressee shall be treated as a separate 
        recipient with respect to each such address.
            (15) Unsolicited commercial electronic mail message.--The 
        term ``unsolicited commercial electronic mail message'' means 
        any commercial electronic mail message that is sent to a 
        recipient--
                    (A) without prior recipient consent; and
                    (B)(i) with whom the initiator does not have a pre-
                existing business relationship;
                    (ii) by an initiator or any affiliate of the 
                initiator after the recipient requests, pursuant to 
                section 5(a)(1), not to receive further commercial 
                electronic mail messages from that initiator; or
                    (iii) by a person or any affiliate of the person 
                after the expiration of a reasonable period of time 
                after the recipient requests, pursuant to section 
                5(a)(2), to be removed from the distribution lists 
                under the control of a person.

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 ``; and''; 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 2001.''.

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 or affiliate of such 
        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 from the initiator and any affiliates of the 
        initiator.
            (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, after receipt of such 
        request--
                    (A) it shall be unlawful for such person or any 
                affiliate of such person to initiate the transmission 
                of an unsolicited commercial electronic mail message to 
                such a recipient within the United States after the 
                expiration of a reasonable period of time for removal 
                from such lists;
                    (B) such person and affiliates (and the agents or 
                assigns of the person or affiliate) shall delete or 
                suppress the electronic mail addresses of the recipient 
                from all mailing lists owned or controlled by such 
                person or affiliate (or such agents or assigns) within 
                a reasonable period of time for such deletion or 
                suppression; and
                    (C) it shall be unlawful for such person or 
                affiliate (or such agents or assigns) to sell, lease, 
                exchange, license, or engage in any other transaction 
                involving mailing lists bearing the electronic mail 
                addresses of the recipient.
            (3) Inclusion of identifier, opt-out, and physical address 
        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;
                    (B) notice of the opportunity under paragraph (2) 
                to decline to receive further unsolicited commercial 
                electronic mail messages from the initiator or any 
                affiliate of the initiator; and
                    (C) the physical mailing address of the initiator.
            (4) Treatment of Internal Opt-Out Lists.--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, it shall be unlawful 
        for the provider to fail to provide an option to its 
        subscribers not to receive any unsolicited commercial 
        electronic mail messages, except that such option shall not be 
        required for any subscriber who has agreed to receive 
        unsolicited commercial electronic mail messages in exchange for 
        discounted or free Internet access service.
            (5) Affirmative defense.--It shall be an affirmative 
        defense in any action or proceeding brought for a violation of 
        any paragraph of this subsection that the violation was not 
        intentional.
    (b) Conditions for Enforcement by Providers of Internet Access 
Service.--
            (1) Authority to opt out.--After the expiration of a 
        reasonable period of time for taking any action necessary to 
        comply with a request under subparagraph (B) that begins upon 
        the receipt of such a request, it shall be unlawful for a 
        person or any affiliate of such person to initiate the 
        transmission of an unsolicited commercial electronic mail 
        message, to any recipient within the United States, that uses 
        the equipment of a provider of Internet access service to 
        recipients of electronic mail messages for such transmission, 
        if such provider--
                    (A)(i) has in effect a policy that meets the 
                requirements under paragraph (2); or
                    (ii) has received a significant number of 
                complaints from its bona fide subscribers that they 
                have received unsolicited commercial electronic mail 
                messages from such person; and
                    (B) makes a request to such person by means of an 
                electronic mail message not to use the equipment of the 
                provider for the transmission of any unsolicited 
                commercial electronic mail message.
            (2) UCE policy.--A policy of a provider of Internet access 
        service to recipients meets the requirements under this 
        paragraph only if--
                    (A) it is a policy regarding the use of the 
                equipment of the provider for the transmission of 
                unsolicited commercial electronic mail messages that 
                prohibits the transmission, using such equipment, of 
                all such messages;
                    (B) the provider of Internet access service is 
                making a good faith effort to block the transmission of 
                all unsolicited commercial electronic mail messages 
                that use the equipment of provider for such 
                transmission;
                    (C) the policy is made publicly available by clear 
                and conspicuous posting 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 
                prohibition referred to in subparagraph (A) applies; 
                and
                    (D) the provider of Internet access service informs 
                each subscriber to such service of the policy.
    (c) Rule of Construction.--Nothing in this Act shall be construed--
            (1) to prevent or limit, in any way, a provider of Internet 
        access service from adopting a policy regarding commercial or 
        other electronic mail, including a policy of declining to 
        transmit certain types of electronic mail messages, and from 
        enforcing such policy through technical means, through 
        contract, or pursuant to any remedy available under any other 
        provision of Federal, State, or local criminal or civil law; or
            (2) to render lawful any such policy that is unlawful under 
        any other provision of law.
    (d) Protection of Internet Access Service Providers 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.

SEC. 6. ENFORCEMENT.

    (a) Enforcement Through FTC Act.--
            (1) Enforcement.--Except as otherwise provided in this Act, 
        section 5 shall be enforced by the Commission under the FTC 
        Act.
            (2) Unfair or deceptive practice.--Any violation of section 
        5 shall be treated as a violation of a rule under section 18 of 
        the FTC Act (15 U.S.C. 57a) regarding unfair or deceptive acts 
        or practices.
            (3) Scope of commission enforcement.--The Commission shall 
        prevent any person from violating section 5 of 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 FTC Act were incorporated into and made a 
        part of this section. Any person who violates section 5 of this 
        Act shall be subject to the penalties and entitled to the 
        privileges and immunities provided in the FTC 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 FTC Act were incorporated into and made a part of 
this section.
            (4) Prohibition of regulations.--Neither the Commission nor 
        any other Federal department or agency shall have any authority 
        to issue any regulations to implement the provisions of this 
        Act.
    (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 greater 
                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 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) Prohibition of class actions.--A private action arising 
        under this subsection may not be brought as a plaintiff class 
        action pursuant to the Federal Rules of Civil Procedure nor as 
        a plaintiff class action pursuant to the law or rules of 
        procedure of any State.
            (5) 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.
    (c) Enforcement by States.--
            (1) In general.--
                    (A) 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 5 of 
                this Act, the State may bring civil action on behalf of 
                the residents of the State in an appropriate court of 
                that State, or in a district court of the United States 
                of appropriate jurisdiction for any or all of the 
                following relief:
                            (i) Injunction.--To enjoin that practice.
                            (ii) Compliance enforcement.--To enforce 
                        compliance with the provisions of section 5.
                            (iii) Damages.--To recover actual monetary 
                        loss or receive $500 in damages for each 
                        violation, except that if the court finds that 
                        the defendant willfully 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 3 times the amount 
                        otherwise available under this clause.
                    (B) Limitation on monetary damages.--All monetary 
                amounts recovered or received by settlement or judgment 
                in an action under this paragraph shall be paid 
                directly to the persons who incurred losses or suffered 
                damages as a result of the violation under section 5 
                for which the action was brought, and no such amounts 
                may be retained by the State or may be used directly or 
                indirectly to offset the cost of such litigation.
                    (C) Notice.--
                            (i) In general.--Before filing an action 
                        under subparagraph (A), 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.
                            (ii) Exemption.--
                                    (I) In general.--Clause (i) 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 subclause (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.
            (2) Intervention.--
                    (A) In general.--On receiving notice under 
                paragraph (1)(B), the Commission shall have the right 
                to intervene in the action that is the subject of the 
                notice.
                    (B) Effect of intervention.--If the Commission 
                intervenes in an action under paragraph (1), it shall 
                have the right--
                            (i) to be heard with respect to any matter 
                        that arises in that action; and
                            (ii) to file a petition for appeal.
            (3) Construction.--For purposes of bringing any civil 
        action under paragraph (1), 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--
                    (A) conduct investigations;
                    (B) administer oaths or affirmations; or
                    (C) compel the attendance of witnesses or the 
                production of documentary and other evidence.
            (4) Venue; service of process.--
                    (A) Venue.--Any action brought under paragraph (1) 
                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.
                    (B) Service of process.--In an action brought under 
                paragraph (1), process may be served in any district in 
                which the defendant--
                            (i) is an inhabitant; or
                            (ii) may be found.

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 law or any State criminal law regarding obscenity or 
the sexual exploitation of children.
    (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 action under--
            (1) State trespass or contract law; or
            (2) 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. SEVERABILITY.

    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 60 days after the date 
of the enactment of this Act.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Anti-Spamming Act of 2001''.

SEC. 2. SPAMMING PROHIBITIONS.

    (a) In General.--Part I of title 18, United States Code, is amended 
by inserting after chapter 29 the following:

                     ``CHAPTER 30--ELECTRONIC MAIL

``Sec.
``621. Unsolicited commercial electronic mail containing fraudulent 
                            transmission information.
``622. Warning labels for electronic mail containing advertisements 
                            harmful to minors.
``Sec. 621. Unsolicited commercial electronic mail containing 
              fraudulent transmission information
    ``(a) Whoever intentionally initiates in one or more transactions 
the transmission of 10 or more unsolicited commercial electronic mail 
messages to one or more protected computers in the United States, 
knowing that each such message contains or is accompanied by header 
information that is materially false or misleading as to the identity 
of the person initiating the transmission shall be fined under this 
title, and in the case of an offense under this section which occurs 
after conviction for a prior offense under this section, shall be so 
fined or imprisoned not more than one year, or both.
    ``(b) As used in this section--
            ``(1) the term `commercial electronic mail message' means 
        an electronic mail message the primary purpose of which is to 
        advertise or promote, for a commercial purpose, a product or 
        service (including content on an Internet website);
            ``(2) the term `header information' means the source, 
        destination, and routing information, including the originating 
        domain name and originating electronic mail address; and
            ``(3) the term `protected computer' has the meaning given 
        that term in section 1030(e)(2) of this title.
    ``(c)(1) A provider of Internet access service, if otherwise 
permitted by the laws or rules of a court of a State, may bring in an 
appropriate court of that State, or, if such laws or rules do not so 
permit, may bring in an appropriate Federal court, an action to recover 
for actual or statutory damages, as provided in paragraph (2), and for 
costs, as provided in paragraph (4).
    ``(2) A person committing a violation of subsection (a) is liable 
to a provider of Internet access service for either--
            ``(A) the actual damages suffered by the provider of 
        Internet access service; or
            ``(B) statutory damages, as provided in paragraph (3).
    ``(3) At any time before final judgment in an action, a provider of 
Internet access service may elect to recover an award of statutory 
damages for each violation of subsection (a) in the sum of $5 per 
violation, not to exceed a total of $1,000,000, except that, during any 
one-year period for which the defendant has transmitted in excess of 
20,000,000 unsolicited  commercial electronic mail messages, no such 
limit on liability shall exist.
    ``(4) In any action brought under paragraph (1), the court may 
award to a prevailing party reasonable litigation expenses incurred by 
that party, including reasonable attorney's fees, as a part of the 
costs awarded under section 1920 of title 28 against any party found in 
that action to have committed a violation of subsection (a).
``Sec. 622. Warning labels for electronic mail containing 
              advertisements harmful to minors
    ``(a)(1) The Attorney General shall prescribe marks or notices to 
be included in electronic mail that contains a sexually oriented 
advertisement in order to inform the recipient of that fact.
    ``(2) Whoever, in any electronic mail that is carried on an 
instrumentality in or affecting interstate or foreign commerce, 
knowingly includes a sexually oriented advertisement but does not 
include in such electronic mail the marks or notices prescribed by the 
Attorney General under this section shall be fined under this title or 
imprisoned not more than one year, or both.
    ``(b) As used in this section, the term `sexually oriented 
advertisement' means any advertisement that depicts, in actual or 
simulated form, or explicitly describes, in a predominantly sexual 
context, human genitalia, any act of natural or unnatural sexual 
intercourse, any act of sadism or masochism, or any other erotic 
subject directly related to the foregoing, but material otherwise 
within the definition of this subsection shall be deemed not to 
constitute a sexually oriented advertisement if it constitutes only a 
small and insignificant part of the whole, the remainder of which is 
not primarily devoted to sexual matters.''.
    (b) Clerical Amendment.--The table of chapters at the beginning of 
part I of title 18, United States Code, is amended by inserting after 
the item relating to chapter 29 the following new item:

``30. Electronic mail.......................................     621''.

SEC. 3. STUDY OF EFFECTS OF UNSOLICITED COMMERCIAL ELECTRONIC MAIL.

    Not later than 18 months after the date of the enactment of this 
Act, the Attorney General 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.




                                                  Union Calendar No. 43

107th CONGRESS

  1st Session

                               H. R. 718

                  [Report No. 107-41, Parts I and II]

_______________________________________________________________________

                                 A BILL

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

_______________________________________________________________________

                              June 5, 2001

    Reported from the Committee on the Judiciary with an amendment, 
   committed to the Committee of the Whole House on the State of the 
                    Union, and ordered to be printed