[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 630 Reported in Senate (RS)]






                                                       Calendar No. 735
107th CONGRESS
  2d Session
                                 S. 630

                          [Report No. 107-318]

  To prohibit senders of unsolicited commercial electronic mail from 
 disguising the source of their messages, to give consumers the choice 
 to cease receiving a sender's unsolicited commercial electronic mail 
                   messages, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 27, 2001

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

                            October 16, 2002

              Reported by Mr. Hollings, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
  To prohibit senders of unsolicited commercial electronic mail from 
 disguising the source of their messages, to give consumers the choice 
 to cease receiving a sender's unsolicited commercial electronic mail 
                   messages, and for other purposes.

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

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Controlling the Assault of 
Non-Solicited Pornography and Marketing Act of 2001'', or the ``CAN-
SPAM Act of 2001''.</DELETED>

<DELETED>SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.</DELETED>

<DELETED>    (a) Findings.--The Congress finds the following:</DELETED>
        <DELETED>    (1) There is a right of free speech on the 
        Internet.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (3) Unsolicited commercial electronic mail can be 
        a mechanism through which businesses advertise and attract 
        customers in the online environment.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (5) Unsolicited commercial electronic mail may 
        impose significant monetary costs on providers of 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 provider of Internet access service and 
        the recipient.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (8) An increasing number of senders of unsolicited 
        commercial electronic mail purposefully include misleading 
        information in the message's subject lines in order to induce 
        the recipients to view the messages.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (10) The practice of sending unsolicited 
        commercial electronic mail is sufficiently profitable that 
        senders of such mail will not be unduly burdened by the costs 
        associated with providing an ``opt-out'' mechanism to 
        recipients and ensuring that recipients who exercise such opt-
        out do not receive further messages from that sender.</DELETED>
        <DELETED>    (11) 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 assemble, free speech, and privacy.</DELETED>
<DELETED>    (b) Congressional Determination of Public Policy.--On the 
basis of the findings in subsection (a), the Congress determines that--
</DELETED>
        <DELETED>    (1) there is substantial government interest in 
        regulation of unsolicited commercial electronic mail;</DELETED>
        <DELETED>    (2) senders of unsolicited commercial electronic 
        mail should not mislead recipients as to the source or content 
        of such mail; and</DELETED>
        <DELETED>    (3) recipients of unsolicited commercial 
        electronic mail have a right to decline to receive additional 
        unsolicited commercial electronic mail from the same 
        source.</DELETED>

<DELETED>SEC. 3. DEFINITIONS.</DELETED>

<DELETED>    In this Act:</DELETED>
        <DELETED>    (1) Affirmative consent.--The term ``affirmative 
        consent'', when used with respect to a commercial electronic 
        mail message, means--</DELETED>
                <DELETED>    (A) the message falls within the scope of 
                an express and unambiguous invitation or permission 
                granted by the recipient and not subsequently 
                revoked;</DELETED>
                <DELETED>    (B) the recipient had clear and 
                conspicuous notice, at the time such invitation or 
                permission was granted, of--</DELETED>
                        <DELETED>    (i) the fact that the recipient 
                        was granting the invitation or 
                        permission;</DELETED>
                        <DELETED>    (ii) the scope of the invitation 
                        or permission, including what types of 
                        commercial electronic mail messages would be 
                        covered by the invitation or permission and 
                        what senders or types of senders, if any, other 
                        than the party to whom the invitation or 
                        permission was communicated would be covered by 
                        the invitation or permission; and</DELETED>
                        <DELETED>    (iii) a reasonable and effective 
                        mechanism for revoking the invitation or 
                        permission; and</DELETED>
                <DELETED>    (C) the recipient has not, after granting 
                the invitation or permission, submitted a request under 
                section 5(a)(3) not to receive unsolicited commercial 
                electronic mail messages from the sender of the 
                message.</DELETED>
        <DELETED>    (2) Commercial electronic mail message.--The term 
        ``commercial electronic mail message'' means any electronic 
        mail message the primary purpose of which is to advertise or 
        promote, for a commercial purpose, a commercial product or 
        service (including content on an Internet website). 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 sender or a reference or link to an Internet 
        website operated for a commercial purpose.</DELETED>
        <DELETED>    (3) Commission.--The term ``Commission'' means the 
        Federal Trade Commission.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (5) Electronic mail address.--</DELETED>
                <DELETED>    (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.</DELETED>
                <DELETED>    (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'').</DELETED>
        <DELETED>    (6) FTC act.--The term ``FTC Act'' means the 
        Federal Trade Commission Act (15 U.S.C. 41 et seq.).</DELETED>
        <DELETED>    (7) Functioning return electronic mail address.--
        </DELETED>
                <DELETED>    (A) The term ``functioning return 
                electronic mail address'' means a legitimately obtained 
                electronic mail address, clearly and conspicuously 
                displayed in a commercial electronic mail message, 
                that--</DELETED>
                        <DELETED>    (i) remains capable of receiving 
                        messages for no less than 30 days after the 
                        transmission of such commercial electronic mail 
                        message; and</DELETED>
                        <DELETED>    (ii) that has capacity reasonably 
                        calculated, in light of the number of 
                        recipients of the commercial electronic mail 
                        message, to enable it to receive the full 
                        expected quantity of reply messages from such 
                        recipients.</DELETED>
                <DELETED>    (B) An electronic mail address that meets 
                the requirements of subparagraph (A) shall not be 
                excluded from this definition because of a temporary 
                inability to receive electronic mail messages due to 
                technical problems, provided steps are taken to correct 
                such technical problems within a reasonable time 
                period.</DELETED>
        <DELETED>    (8) Header information.--The term ``header 
        information'' means the source, destination, and routing 
        information attached to the beginning of an electronic mail 
        message, including the originating domain name and originating 
        electronic mail address.</DELETED>
        <DELETED>    (9) Implied consent.--The term ``implied 
        consent'', when used with respect to a commercial electronic 
        mail message, means--</DELETED>
                <DELETED>    (A) within the 5-year period ending upon 
                receipt of such message, there has been a business 
                transaction between the sender and the recipient 
                (including a transaction involving the provision, free 
                of charge, of information, goods, or services requested 
                by the recipient); and</DELETED>
                <DELETED>    (B) the recipient was, at the time of such 
                transaction or thereafter, provided a clear and 
                conspicuous notice of an opportunity not to receive 
                unsolicited commercial electronic mail messages from 
                the sender and has not exercised such 
                opportunity.</DELETED>
        <DELETED>    (10) Initiate.--The term ``initiate'', when used 
        with respect to a commercial electronic mail message, means to 
        originate such message, to procure the origination of such 
        message, or to assist in the origination of such message 
        through the provision or selection of addresses to which such 
        message will be sent, but shall not include actions that 
        constitute routine conveyance of such message. For purposes of 
        this Act, more than 1 person may be considered to have 
        initiated the same message.</DELETED>
        <DELETED>    (11) Internet.--The term ``Internet'' has the 
        meaning given that term in the Internet Tax Freedom Act (Pub. 
        L. 105-277, Div. C, Title XI, Sec.   1101(e)(3)(c)).</DELETED>
        <DELETED>    (12) 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)).</DELETED>
        <DELETED>    (13) Protected computer.--The term ``protected 
        computer'' has the meaning given that term in section 
        1030(e)(2) of title 18, United States Code.</DELETED>
        <DELETED>    (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 1 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.</DELETED>
        <DELETED>    (15) Routine conveyance.--The term ``routine 
        conveyance'' means the transmission, routing, relaying, 
        handling, or storing, through an automatic technical process, 
        of an electronic mail message for which another person has 
        provided and selected the recipient addresses.</DELETED>
        <DELETED>    (16) Sender.--The term ``sender'', when used with 
        respect to a commercial electronic mail message, means a person 
        who initiates such a message and whose product, service, or 
        Internet web site is advertised or promoted by the message, but 
        does not include any person, including a provider of Internet 
        access service, whose role with respect to the message is 
        limited to routine conveyance of the message.</DELETED>
        <DELETED>    (17) Unsolicited commercial electronic mail 
        message.--</DELETED>
                <DELETED>    (A) In general.--The term ``unsolicited 
                commercial electronic mail message'' means any 
                commercial electronic mail message that is sent to a 
                recipient--</DELETED>
                        <DELETED>    (i) without prior affirmative 
                        consent or implied consent from the recipient; 
                        or</DELETED>
                        <DELETED>    (ii) to a recipient who, 
                        subsequent to the establishment of affirmative 
                        or implied consent under subparagraph (i), has 
                        expressed, in a reply submitted pursuant to 
                        section 5(a)(3), or in response to any other 
                        opportunity the sender may have provided to the 
                        recipient, a desire not to receive commercial 
                        electronic mail messages from the 
                        sender.</DELETED>
                <DELETED>    (B) Exclusion.--Notwithstanding 
                subparagraph (A), the term ``unsolicited commercial 
                electronic mail message'' does not include an 
                electronic mail message sent by or on behalf of one or 
                more lawful owners of copyright, patent, publicity, or 
                trademark rights to an unauthorized user of protected 
                material notifying such user that the use is 
                unauthorized and requesting that the use be terminated 
                or that permission for such use be obtained from the 
                rights holder or holders.</DELETED>

<DELETED>SEC. 4. CRIMINAL PENALTY FOR UNSOLICITED COMMERCIAL ELECTRONIC 
              MAIL CONTAINING FRAUDULENT ROUTING INFORMATION.</DELETED>

<DELETED>    (a) In General.--Chapter 63 of title 18, United States 
Code, is amended by adding at the end the following:</DELETED>
<DELETED>``Sec.  1348. Unsolicited commercial electronic mail 
              containing fraudulent transmission information</DELETED>
<DELETED>    ``(a) In General.--Any person who intentionally initiates 
the transmission of any unsolicited commercial electronic mail message 
to a protected computer in the United States with knowledge that such 
message contains or is accompanied by header information that is 
materially or intentionally false or misleading shall be fined or 
imprisoned for not more than 1 year, or both, under this 
title.</DELETED>
<DELETED>    ``(b) Definitions.--Any term used in subsection (a) that 
is defined in section 3 of the Unsolicited Commercial Electronic Mail 
Act of 2001 has the meaning giving it in that section.''.</DELETED>
<DELETED>    (b) Conforming Amendment.--The chapter analysis for 
chapter 63 of title 18, United States Code, is amended by adding at the 
end the following:</DELETED>

<DELETED>``1348. Unsolicited commercial electronic mail containing 
                            fraudulent routing information''.

<DELETED>SEC. 5. OTHER PROTECTIONS AGAINST UNSOLICITED COMMERCIAL 
              ELECTRONIC MAIL.</DELETED>

<DELETED>    (a) Requirements for Transmission of Messages.--</DELETED>
        <DELETED>    (1) Prohibition of false or misleading 
        transmission information.--It shall be unlawful for any person 
        to initiate the transmission, to a protected computer, of a 
        commercial electronic mail message that contains, or is 
        accompanied by, header information that is materially or 
        intentionally false or misleading, or not legitimately 
        obtained.</DELETED>
        <DELETED>    (2) Prohibition of deceptive subject headings.--It 
        shall be unlawful for any person to initiate the transmission, 
        to a protected computer, of a commercial electronic mail 
        message with a subject heading that such person knows is likely 
        to mislead the recipient about a material fact regarding the 
        contents or subject matter of the message.</DELETED>
        <DELETED>    (3) 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 a protected computer unless such message contains a 
        functioning return electronic mail address to which a recipient 
        may send a reply to the sender to indicate a desire not to 
        receive further messages from that sender at the electronic 
        mail address at which the message was received.</DELETED>
        <DELETED>    (4) Prohibition of transmission of unsolicited 
        commercial electronic mail after objection.--If a recipient 
        makes a request to a sender, through an electronic mail message 
        sent to an electronic mail address provided by the sender 
        pursuant to paragraph (3), not to receive further electronic 
        mail messages from that sender, it shall be unlawful for the 
        sender, or any person acting on behalf of the sender, to 
        initiate the transmission of an unsolicited commercial 
        electronic mail message to such a recipient within the United 
        States more than 10 days after receipt of such 
        request.</DELETED>
        <DELETED>    (5) 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 a protected 
        computer unless the message provides, in a manner that is clear 
        and conspicuous to the recipient--</DELETED>
                <DELETED>    (A) identification that the message is an 
                advertisement or solicitation;</DELETED>
                <DELETED>    (B) notice of the opportunity under 
                paragraph (3) to decline to receive further unsolicited 
                commercial electronic mail messages from the sender; 
                and</DELETED>
                <DELETED>    (C) a valid physical postal address of the 
                sender.</DELETED>
<DELETED>    (b) No Effect on Policies of Providers of Internet Access 
Service.--Nothing in this Act shall be construed to have any effect on 
the lawfulness or unlawfulness, under any other provision of law, of 
the adoption, implementation, or enforcement by a provider of Internet 
access service of a policy of declining to transmit, route, relay, 
handle, or store certain types of electronic mail messages.</DELETED>

<DELETED>SEC. 6. ENFORCEMENT.</DELETED>

<DELETED>    (a) Enforcement by Commission.--</DELETED>
        <DELETED>    (1) In general.--Section 5 of this Act shall be 
        enforced by the Commission under the FTC Act. For purposes of 
        such Commission enforcement, a violation of section 5 of this 
        Act shall be treated as a violation of a rule under section 18 
        (15 U.S.C. 57a) of the FTC Act regarding unfair or deceptive 
        acts or practices.</DELETED>
        <DELETED>    (2) Scope of commission enforcement authority.--
        </DELETED>
                <DELETED>    (A) 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 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.</DELETED>
                <DELETED>    (B) Nothing in this Act shall be construed 
                to give the Commission authority over activities that 
                are otherwise outside the jurisdiction of the FTC 
                Act.</DELETED>
<DELETED>    (b) Enforcement by Certain Other Agencies.--</DELETED>
        <DELETED>    (1) In general.--Compliance with section 5 of this 
        Act shall be enforced under--</DELETED>
                <DELETED>    (A) section 8 of the Federal Deposit 
                Insurance Act (12 U.S.C. 1818), in the case of--
                </DELETED>
                        <DELETED>    (i) national banks, and Federal 
                        branches and Federal agencies of foreign banks, 
                        by the Office of the Comptroller of the 
                        Currency;</DELETED>
                        <DELETED>    (ii) member banks of the Federal 
                        Reserve System (other than national banks), 
                        branches and agencies of foreign banks (other 
                        than Federal branches, Federal agencies, and 
                        insured State branches of foreign banks), 
                        commercial lending companies owned or 
                        controlled by foreign banks, and organizations 
                        operating under section 25 or 25A of the 
                        Federal Reserve Act (12 U.S.C. 601 et seq. and 
                        611 et seq.), by the Federal Reserve Board; 
                        and</DELETED>
                        <DELETED>    (iii) banks insured by the Federal 
                        Deposit Insurance Corporation (other than 
                        members of the Federal Reserve System) and 
                        insured State branches of foreign banks, by the 
                        Board of Directors of the Federal Deposit 
                        Insurance Corporation;</DELETED>
                <DELETED>    (B) section 8 of the Federal Deposit 
                Insurance Act (12 U.S.C. 1818), by the Director of the 
                Office of Thrift Supervision, in the case of a savings 
                association the deposits of which are insured by the 
                Federal Deposit Insurance Corporation;</DELETED>
                <DELETED>    (C) the Federal Credit Union Act (12 
                U.S.C. 1751 et seq.) by the National Credit Union 
                Administration Board with respect to any Federal credit 
                union;</DELETED>
                <DELETED>    (D) part A of subtitle VII of title 49, 
                United States Code, by the Secretary of Transportation 
                with respect to any air carrier or foreign air carrier 
                subject to that part;</DELETED>
                <DELETED>    (E) the Packers and Stockyards Act, 1921 
                (7 U.S.C. 181 et seq.) (except as provided in section 
                406 of that Act (7 U.S.C. 226, 227)), by the Secretary 
                of Agriculture with respect to any activities subject 
                to that Act;</DELETED>
                <DELETED>    (F) the Farm Credit Act of 1971 (12 U.S.C. 
                2001 et seq.) by the Farm Credit Administration with 
                respect to any Federal land bank, Federal land bank 
                association, Federal intermediate credit bank, or 
                production credit association; and</DELETED>
                <DELETED>    (G) the Communications Act of 1934 (47 
                U.S.C. 151 et seq.) by the Federal Communications 
                Commission with respect to any person subject to the 
                provisions of that Act.</DELETED>
        <DELETED>    (2) Exercise of certain powers.--For the purpose 
        of the exercise by any agency referred to in paragraph (1) of 
        its powers under any Act referred to in that paragraph, a 
        violation of section 5 of this Act is deemed to be a violation 
        of a requirement imposed under that Act. In addition to its 
        powers under any provision of law specifically referred to in 
        paragraph (1), each of the agencies referred to in that 
        paragraph may exercise, for the purpose of enforcing compliance 
        with any requirement imposed under section 5 of this Act, any 
        other authority conferred on it by law.</DELETED>
<DELETED>    (c) Enforcement by States.--</DELETED>
        <DELETED>    (1) Civil action.--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 any person engaging in a 
        practice that violates section 5 of this Act, 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 or in any other court of competent 
        jurisdiction--</DELETED>
                <DELETED>    (A) to enjoin that practice; or</DELETED>
                <DELETED>    (B) to obtain damages on behalf of 
                residents of the State, in an amount equal to the 
                greater of--</DELETED>
                        <DELETED>    (i) the actual monetary loss 
                        suffered by such residents; or</DELETED>
                        <DELETED>    (ii) the amount determined under 
                        paragraph (2).</DELETED>
        <DELETED>    (2) Statutory damages.--For purposes of paragraph 
        (1)(B)(ii), the amount determined under this paragraph is the 
        smaller of--</DELETED>
                <DELETED>    (A) the amount determined by multiplying 
                the number of willful, knowing, or negligent violations 
                by an amount, in the discretion of the court, of up to 
                $10 (with each separately addressed unlawful message 
                received by such residents treated as a separate 
                violation); or</DELETED>
                <DELETED>    (B) $500,000.</DELETED>
        <DELETED>In determining the per-violation penalty under this 
        paragraph, the court shall take into account the degree of 
        culpability, any history of prior such conduct, ability to pay, 
        effect on ability to continue to do business, and such other 
        matters as justice may require.</DELETED>
        <DELETED>    (3) Treble damages.--If the court finds that the 
        defendant committed the violation willfully and knowingly, the 
        court may increase the amount recoverable under paragraph (2) 
        up to threefold.</DELETED>
        <DELETED>    (4) Attorney fees.--In the case of any successful 
        action under subparagraph (1), the State shall be awarded the 
        costs of the action and reasonable attorney fees as determined 
        by the court.</DELETED>
        <DELETED>    (5) Notice.--</DELETED>
                <DELETED>    (A) Pre-filing.--Before filing an action 
                under paragraph (1), an attorney general shall provide 
                to the Commission--</DELETED>
                        <DELETED>    (i) written notice of that action; 
                        and</DELETED>
                        <DELETED>    (ii) a copy of the complaint for 
                        that action.</DELETED>
                <DELETED>    (B) Contemporaneous.--If an attorney 
                general determines that it is not feasible to provide 
                the notice required by subparagraph (A) before filing 
                the action, the notice and a copy of the complaint 
                shall be provided to the Commission when the action is 
                filed.</DELETED>
        <DELETED>    (6) Intervention.--If the Commission receives 
        notice under paragraph (4), it--</DELETED>
                <DELETED>    (A) may intervene in the action that is 
                the subject of the notice; and</DELETED>
                <DELETED>    (B) shall have the right--</DELETED>
                        <DELETED>    (i) to be heard with respect to 
                        any matter that arises in that action; 
                        and</DELETED>
                        <DELETED>    (ii) to file a petition for 
                        appeal.</DELETED>
        <DELETED>    (7) 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--</DELETED>
                <DELETED>    (A) conduct investigations;</DELETED>
                <DELETED>    (B) administer oaths or affirmations; 
                or</DELETED>
                <DELETED>    (C) compel the attendance of witnesses or 
                the production of documentary and other 
                evidence.</DELETED>
        <DELETED>    (8) Venue; service of process.--</DELETED>
                <DELETED>    (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.</DELETED>
                <DELETED>    (B) Service of process.--In an action 
                brought under paragraph (1), process may be served in 
                any district in which the defendant--</DELETED>
                        <DELETED>    (i) is an inhabitant; or</DELETED>
                        <DELETED>    (ii) maintains a physical place of 
                        business.</DELETED>
        <DELETED>    (9) Limitation on state action while federal 
        action is pending.--If the Commission or other appropriate 
        Federal agency under subsection (b) has instituted a civil 
        action or an administrative action for violation of this Act, 
        no State attorney general may bring an action under this 
        subsection during the pendency of that action against any 
        defendant named in the complaint of the Commission or the other 
        agency for any violation of this Act alleged in the 
        complaint.</DELETED>
<DELETED>    (d) Action by Provider of Internet Access Service.--
</DELETED>
        <DELETED>    (1) Action Authorized.--A provider of Internet 
        access service adversely affected by a violation of section 5 
        may bring a civil action in any district court of the United 
        States with jurisdiction over the defendant, or in any other 
        court of competent jurisdiction, to--</DELETED>
                <DELETED>    (A) enjoin further violation by the 
                defendant; or</DELETED>
                <DELETED>    (B) recover damages in an amount equal to 
                the greater of--</DELETED>
                        <DELETED>    (i) actual monetary loss incurred 
                        by the provider of Internet access service as a 
                        result of such violation; or</DELETED>
                        <DELETED>    (ii) the amount determined under 
                        paragraph (2).</DELETED>
        <DELETED>    (2) Statutory damages.--For purposes of paragraph 
        (1)(B)(ii), the amount determined under this paragraph is the 
        smaller of--</DELETED>
                <DELETED>    (A) the amount determined by multiplying 
                the number of willful, knowing, or negligent violations 
                by an amount, in the discretion of the court, of up to 
                $10 (with each separately addressed unlawful message 
                carried over the facilities of the provider of Internet 
                access service treated as a separate violation); 
                or</DELETED>
                <DELETED>    (B) $500,000.</DELETED>
        <DELETED>In determining the per-violation penalty under this 
        paragraph, the court shall take into account the degree of 
        culpability, any history of prior such conduct, ability to pay, 
        effect on ability to continue to do business, and such other 
        matters as justice may require.</DELETED>
        <DELETED>    (3) Treble damages.--If the court finds that the 
        defendant committed the violation willfully and knowingly, the 
        court may increase the amount recoverable under paragraph (2) 
        up to threefold.</DELETED>
        <DELETED>    (4) Attorney fees.--In any action brought pursuant 
        to paragraph (1), 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.</DELETED>
        <DELETED>    (5) Evidentiary presumption.--For purposes of an 
        action alleging a violation of section 5(a)(4) or 5(a)(5), a 
        showing that a recipient has submitted a complaint about a 
        commercial electronic mail message to an electronic mail 
        address maintained and publicized by the provider of Internet 
        access service for the purpose of receiving complaints about 
        unsolicited commercial electronic mail messages shall create a 
        rebuttable presumption that the message in question was 
        unsolicited within the meaning of this Act.</DELETED>
<DELETED>    (e) Affirmative Defense.--A person shall not be liable for 
damages under subsection (c)(2) or (d)(2) if--</DELETED>
        <DELETED>    (1) such person has established and implemented, 
        with due care, reasonable practices and procedures to 
        effectively prevent violations of section 5; and</DELETED>
        <DELETED>    (2) any violation occurred despite good faith 
        efforts to maintain compliance with such practices and 
        procedures.</DELETED>

<DELETED>SEC. 7. EFFECT ON OTHER LAWS.</DELETED>

<DELETED>    (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.</DELETED>
<DELETED>    (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 or more restrictive 
than the treatment of such activities or actions under this Act, except 
that this Act shall not preempt any civil action under--</DELETED>
        <DELETED>    (1) State trespass, contract, or tort law; 
        or</DELETED>
        <DELETED>    (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 perpetrated by means of the 
        unauthorized transmission of unsolicited commercial electronic 
        mail messages, provided that the mere sending of unsolicited 
        commercial electronic mail in a manner that complies with this 
        Act shall not constitute an act of computer fraud for purposes 
        of this subparagraph.</DELETED>

<DELETED>SEC. 8. STUDY OF EFFECTS OF UNSOLICITED COMMERCIAL ELECTRONIC 
              MAIL.</DELETED>

<DELETED>    Not later than 18 months after the date of the enactment 
of this Act, the Commission, in consultation with the Department of 
Justice and other appropriate agencies, 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.</DELETED>

<DELETED>SEC. 9 SEPARABILITY.</DELETED>

<DELETED>    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.</DELETED>

<DELETED>SEC. 10. EFFECTIVE DATE.</DELETED>

<DELETED>    The provisions of this Act shall take effect 120 days 
after the date of the enactment of this Act.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Controlling the Assault of Non-
Solicited Pornography and Marketing Act of 2002'', or the ``CANSPAM Act 
of 2002''.

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.
            (3) 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.
            (4) Unsolicited commercial electronic mail can be a 
        mechanism through which businesses advertise and attract 
        customers in the online environment.
            (5) 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.
            (6) Unsolicited commercial electronic mail may impose 
        significant monetary costs on providers of 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 in 
        infrastructure.
            (7) Some unsolicited commercial electronic mail contains 
        material that many recipients may consider vulgar or 
        pornographic in nature.
            (8) 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.
            (9) 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.
            (10) An increasing number of senders of unsolicited 
        commercial electronic mail purposefully include misleading 
        information in the message's subject lines in order to induce 
        the recipients to view the messages.
            (11) 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 a substantial government interest in 
        regulation of unsolicited commercial electronic mail;
            (2) senders of unsolicited commercial electronic mail 
        should not mislead recipients as to the source or content of 
        such mail; and
            (3) recipients of unsolicited commercial electronic mail 
        have a right to decline to receive additional unsolicited 
        commercial electronic mail from the same source.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Affirmative consent.--The term ``affirmative consent'', 
        when used with respect to a commercial electronic mail message, 
        means that the message is being sent with the express consent, 
        or at the express direction of, the recipient.
            (2) Commercial electronic mail message.--
                    (A) In general.--The term ``commercial electronic 
                mail message'' means any electronic mail message the 
                primary purpose of which is the commercial 
                advertisement or promotion of a commercial product or 
                service (including content on an Internet website 
operated for a commercial purpose).
                    (B) Transactional or relationship messages.--The 
                term ``commercial electronic mail message'' does not 
                include an electronic mail message the primary purpose 
                of which is to facilitate, complete, confirm, provide, 
                or request information concerning--
                            (i) a commercial transaction,
                            (ii) an existing commercial relationship, 
                        formed with or without an exchange of 
                        consideration, involving the ongoing purchase 
                        or use by the recipient of products or services 
                        offered by the sender, or
                            (iii) an existing employment relationship,
                that the recipient has previously agreed to enter into 
                with the sender,
                    (C) Reference to company or website.--The inclusion 
                of a reference to a commercial entity or a link to the 
                website of a commercial entity in an electronic mail 
                message does not, by itself, cause such message to be 
                treated as a commercial electronic mail message for 
                purposes of this Act if the contents or circumstances 
                of the message indicate a primary purpose other than 
                commercial advertisement or promotion of a commercial 
                product or service.
            (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.--The term ``electronic mail 
        address'' means a destination, commonly expressed as a string 
        of characters, consisting of a unique 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''), to which an electronic mail message can be sent or 
        delivered.
            (6) Electronic mail message.--The term ``electronic mail 
        message'' means a message sent to an electronic mail address.
            (7) FTC act.--The term ``FTC Act'' means the Federal Trade 
        Commission Act (15 U.S.C. 41 et seq.).
            (8) Header information.--The term ``header information'' 
        means the source, destination, and routing information attached 
        to the beginning of an electronic mail message, including the 
        originating domain name and originating electronic mail 
        address.
            (9) Implied consent.--The term ``implied consent'', when 
        used with respect to a commercial electronic mail message, 
        means that--
                    (A) within the 3-year period ending upon receipt of 
                such message, there has been a business transaction 
                between the sender and the recipient (including a 
                transaction involving the provision, free of charge, of 
                information, goods, or services requested by the 
                recipient); and
                    (B) the recipient was, at the time of such 
                transaction or thereafter, provided a clear and 
                conspicuous notice of an opportunity not to receive 
                unsolicited commercial electronic mail messages from 
                the sender and has not exercised such opportunity.
            (10) 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, but shall not include actions that constitute routine 
        conveyance of such message.
            (11) Internet.--The term ``Internet'' has the meaning given 
        that term in the Internet Tax Freedom Act (47 U.S.C. 151 nt).
            (12) 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)).
            (13) Protected computer.--The term ``protected computer'' 
        has the meaning given that term in section 1030(e)(2) of title 
        18, United States Code.
            (14) Recipient.--The term ``recipient'', when used with 
        respect to a commercial electronic mail message, means an 
        authorized user of the electronic mail address to which the 
        message was sent or delivered. If a recipient of a commercial 
        electronic mail message has 1 or more electronic mail addresses 
        in addition to the address to which the message was sent or 
        delivered, the recipient shall be treated as a separate 
        recipient with respect to each such address. If an electronic 
        mail address is reassigned to a new user, the new user shall 
        not be treated as a recipient of any commercial electronic mail 
        message sent or delivered to that address before it was 
        reassigned.
            (15) Routine conveyance.--The term ``routine conveyance'' 
        means the transmission, routing, relaying, handling, or 
        storing, through an automatic technical process, of an 
        electronic mail message for which another person has provided 
        and selected the recipient addresses.
            (16) Sender.--The term ``sender'', when used with respect 
        to a commercial electronic mail message, means a person who 
        initiates such a message and whose product, service, or 
        Internet web site is advertised or promoted by the message.
            (17) Unsolicited commercial electronic mail message.--The 
        term ``unsolicited commercial electronic mail message'' means 
        any commercial electronic mail message that is sent to a 
        recipient without the recipient's prior affirmative or implied 
        consent.

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

    (a) In General.--Chapter 63 of title 18, United States Code, is 
amended by adding at the end the following:
``Sec.  1351. Unsolicited commercial electronic mail containing 
              fraudulent transmission information
    ``(a) In General.--Any person who initiates the transmission, to a 
protected computer in the United States, of an unsolicited commercial 
electronic mail message, with knowledge and intent that the message 
contains or is accompanied by header information that is materially 
false or materially misleading shall be fined or imprisoned for not 
more than 1 year, or both, under this title. For purposes of this 
subsection, header information that includes an originating electronic 
mail address the use of which in connection with the message was not 
authorized by the legitimate holder of the address, or access to which 
was obtained by means of false or fraudulent pretense or 
representations, shall be considered materially misleading.
    ``(b) Definitions.--Any term used in subsection (a) that is defined 
in section 3 of the CANSPAM Act of 2002 has the meaning given it in 
that section.''.
    (b) Conforming Amendment.--The chapter analysis for chapter 63 of 
title 18, United States Code, is amended by adding at the end the 
following:

``1351. Unsolicited commercial electronic mail containing fraudulent 
                            routing information.''.

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

    (a) Requirements for Transmission of Messages.--
            (1) Prohibition of false or misleading transmission 
        information.--It is unlawful for any person to initiate the 
        transmission, to a protected computer, of a commercial 
        electronic mail message that contains, or is accompanied by, 
        header information that is materially or intentionally false or 
        materially or intentionally misleading. For purposes of this 
        paragraph, header information that includes an originating 
        electronic mail address the use of which in connection with the 
        message was not authorized by the legitimate holder of the 
        address, or access to which was obtained by means of false or 
        fraudulent pretense or representations, shall be considered 
        materially misleading.
            (2) Prohibition of deceptive subject headings.--It is 
        unlawful for any person to initiate the transmission to a 
        protected computer of a commercial electronic mail message with 
        a subject heading that such person knows would be likely to 
        mislead a recipient, acting reasonably under the circumstances, 
        about a material fact regarding the contents or subject matter 
        of the message.
            (3) Inclusion of return address or comparable mechanism in 
        unsolicited commercial electronic mail.--
                    (A) In general.--It is unlawful for any person to 
                initiate the transmission to a protected computer of an 
                unsolicited commercial electronic mail message that 
                does not contain a functioning return electronic mail 
                address or other Internet-based mechanism, clearly and 
                conspicuously displayed, that--
                            (i) a recipient may use to submit, in a 
                        manner specified by the sender, a reply 
                        electronic mail message or other form of 
                        Internet-based communication requesting not to 
                        receive any future unsolicited commercial 
                        electronic mail messages from that sender at 
                        the electronic mail address where the message 
                        was received; and
                            (ii) remains capable of receiving such 
                        messages or communications for no less than 30 
                        days after the transmission of the original 
                        message.
                    (B) More detailed requests possible.--Nothing in 
                subparagraph (A) prohibits the sender of a commercial 
                electronic mail message from, in addition to permitting 
                a recipient to submit a request described in 
                subparagraph (A)(i), providing the recipient the option 
                of submitting more detailed requests concerning the 
                types of commercial electronic mail messages that the 
                recipient does or does not wish to receive in the 
                future from the sender or from some or all affiliates 
                of the sender.
                    (C) Temporary inability to receive messages.--A 
                return electronic mail address or other mechanism does 
                not fail to satisfy the requirements of subparagraph 
                (A) if it is unexpectedly and temporarily unable to 
                receive messages due to technical or capacity problems, 
                if the problem with receiving messages is corrected 
                within a reasonable time period.
            (4) Prohibition of transmission of unsolicited commercial 
        electronic mail after objection.--If a recipient makes a 
        request to a sender, using a mechanism provided pursuant to 
        paragraph (3), not to receive some or any unsolicited 
        commercial electronic mail messages from such sender, then it 
        is unlawful--
                    (A) for the sender to initiate the transmission to 
                the recipient, more than 10 days after the receipt of 
                such request, of an unsolicited commercial electronic 
                mail message that falls within the scope of the 
                request;
                    (B) for any person acting on behalf of the sender 
                to initiate the transmission to the recipient, more 
                than 10 days after the receipt of such request, of an 
                unsolicited commercial electronic mail message that 
                such person knows or consciously avoids knowing falls 
                within the scope of the request; or
                    (C) for any person acting on behalf of the sender 
                to assist in initiating the transmission to the 
                recipient, through the provision or selection of 
                addresses to which the message will be sent, of an 
                unsolicited commercial electronic mail message that the 
                person knows, or consciously avoids knowing, would 
                violate subparagraph (A) or (B).
            (5) Inclusion of identifier, opt-out, and physical address 
        in unsolicited commercial electronic mail.--It is unlawful for 
        any person to initiate the transmission of any unsolicited 
        commercial electronic mail message to a protected computer 
        unless the message provides--
                    (A) clear and conspicuous identification that the 
                message is an advertisement or solicitation;
                    (B) clear and conspicuous notice of the opportunity 
                under paragraph (3) to decline to receive further 
                unsolicited commercial electronic mail messages from 
                the sender; and
                    (C) a valid physical postal address of the sender.
            (b) Prohibition of Transmission of Unsolicited Commercial 
        Electronic Mail From Illegally Harvested Electronic Mail 
        Addresses.--
            (1) In general.--It is unlawful for any person to initiate 
        the transmission, to a protected computer, of an unsolicited 
        commercial electronic mail message that is unlawful under 
        subsection (a), or to assist in the origination of such a 
        message through the provision or selection of addresses to 
        which the message will be sent, if such person knows that, or 
        acts with reckless disregard as to whether--
                    (A) the electronic mail address of the recipient 
                was obtained, using an automated means, from an 
                Internet website or proprietary online service operated 
                by another person; or
                    (B) the website or proprietary online service from 
                which the address was obtained included, at the time 
                the address was obtained, a notice stating that the 
                operator of such a website or proprietary online 
                service will not give, sell, or otherwise transfer 
                addresses maintained by such site or service to any 
                other party for the purpose of initiating, or enabling 
                others to initiate, unsolicited electronic mail 
                messages.
            (2) Disclaimer.--Nothing in this subsection creates an 
        ownership or proprietary interest in such email addresses.
    (c) Affirmative Defense.--A person shall not be found to have 
violated paragraph (2), (3), (4), or (5) of subsection (a) if--
            (1) that person has established and implemented, with due 
        care, reasonable practices and procedures to effectively 
        prevent violations of this section; and
            (2) the violation of this section occurred despite good 
        faith efforts to maintain compliance with such practices and 
        procedures.

SEC. 6. ENFORCEMENT BY FEDERAL TRADE COMMISSION.

    (a) Violation Is Unfair or Deceptive Act or Practice.--Except as 
provided in subsection (b), this Act shall be enforced by the 
Commission as if the violation of this Act were an unfair or deceptive 
act or practice proscribed under section 18(a)(1)(B) of the Federal 
Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
    (b) Enforcement by Certain Other Agencies.--Compliance with this 
Act shall be enforced--
            (1) under section 8 of the Federal Deposit Insurance Act 
        (12 U.S.C. 1818), in the case of--
                    (A) national banks, and Federal branches and 
                Federal agencies of foreign banks, and any subsidiaries 
                of such entities (except brokers, dealers, persons 
                providing insurance, investment companies, and 
                investment advisers), by the Office of the Comptroller 
                of the Currency;
                    (B) member banks of the Federal Reserve System 
                (other than national banks), branches and agencies of 
                foreign banks (other than Federal branches, Federal 
                agencies, and insured State branches of foreign banks), 
                commercial lending companies owned or controlled by 
                foreign banks, organizations operating under section 25 
                or 25A of the Federal Reserve Act (12 U.S.C. 601 and 
                611), and bank holding companies and their nonbank 
                subsidiaries or affiliates (except brokers, dealers, 
                persons providing insurance, investment companies, and 
                investment advisers), by the Board;
                    (C) banks insured by the Federal Deposit Insurance 
                Corporation (other than members of the Federal Reserve 
                System) insured State branches of foreign banks, and 
                any subsidiaries of such entities (except brokers, 
                dealers, persons providing insurance, investment 
                companies, and investment advisers), by the Board of 
                Directors of the Federal Deposit Insurance Corporation; 
                and
                    (D) savings associations the deposits of which are 
                insured by the Federal Deposit Insurance Corporation, 
                and any subsidiaries of such savings associations 
                (except brokers, dealers, persons providing insurance, 
                investment companies, and investment advisers), by the 
                Director of the Office of Thrift Supervision;
            (2) under the Federal Credit Union Act (12 U.S.C. 1751 et 
        seq.) by the Board of the National Credit Union Administration 
        with respect to any Federally insured credit union, and any 
        subsidiaries of such a credit union;
            (3) under the Securities Exchange Act of 1934 (15 U.S.C. 
        78a et seq.) by the Securities and Exchange Commission with 
        respect to any broker or dealer;
            (4) under the Investment Company Act of 1940 (15 U.S.C. 
        80a-1 et seq.) by the Securities and Exchange Commission with 
        respect to investment companies;
            (5) under the Investment Advisers Act of 1940 (15 U.S.C. 
        80b-1 et seq.) by the Securities and Exchange Commission with 
        respect to investment advisers registered under that Act;
            (6) under State insurance law in the case of any person 
        engaged in providing insurance, by the applicable State 
        insurance authority of the State in which the person is 
        domiciled, subject to section 104 of the Gramm-Bliley-Leach Act 
        (15 U.S.C. 6701);
            (7) under part A of subtitle VII of title 49, United States 
        Code, by the Secretary of Transportation with respect to any 
        air carrier or foreign air carrier subject to that part;
            (8) under the Packers and Stockyards Act, 1921 (7 U.S.C. 
        181 et seq.) (except as provided in section 406 of that Act (7 
        U.S.C. 226, 227)), by the Secretary of Agriculture with respect 
        to any activities subject to that Act;
            (9) under the Farm Credit Act of 1971 (12 U.S.C. 2001 et 
        seq.) by the Farm Credit Administration with respect to any 
        Federal land bank, Federal land bank association, Federal 
        intermediate credit bank, or production credit association; and
            (10) under the Communications Act of 1934 (47 U.S.C. 151 et 
        seq.) by the Federal Communications Commission with respect to 
        any person subject to the provisions of that Act.
    (c) Exercise of Certain Powers.--For the purpose of the exercise by 
any agency referred to in subsection (b) of its powers under any Act 
referred to in that subsection, a violation of this Act is deemed to be 
a violation of a requirement imposed under that Act. In addition to its 
powers under any provision of law specifically referred to in 
subsection (b), each of the agencies referred to in that subsection may 
exercise, for the purpose of enforcing compliance with any requirement 
imposed under this Act, any other authority conferred on it by law.
    (d) 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 subtitle 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 subtitle.
    (e) Enforcement by States.--
            (1) Civil action.--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 any person engaging in a practice that 
        violates section 5 of this Act, 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 or in any other court of competent jurisdiction--
                    (A) to enjoin that practice; or
                    (B) to obtain damages on behalf of residents of the 
                State, in an amount equal to the greater of--
                            (i) the actual monetary loss suffered by 
                        such residents; or
                            (ii) the amount determined under paragraph 
                        (2).
            (2) Statutory damages.--
                    (A) In general.--For purposes of paragraph 
                (1)(B)(ii), the amount determined under this paragraph 
                is the amount calculated by multiplying the number of 
                willful, knowing, or negligent violations by an amount, 
                in the discretion of the court, of up to $10 (with each 
                separately addressed unlawful message received by such 
                residents treated as a separate violation). In 
                determining the per-violation penalty under this 
                subparagraph, the court shall take into account the 
                degree of culpability, any history of prior such 
                conduct, ability to pay, the extent of economic gain 
                resulting from the violation, and such other matters as 
                justice may require.
                    (B) Limitation.--For any violation of paragraph 
                (2), (3), (4), or (5) of section 5(a), the amount 
                determined under subparagraph (A) may not exceed 
                $500,000, except that if the court finds that the 
                defendant committed the violation willfully and 
                knowingly, the court may increase the limitation 
                established by this paragraph from $500,000 to an 
                amount not to exceed $1,500,000.
            (3) Attorney fees.--In the case of any successful action 
        under paragraph (1), the State shall be awarded the costs of 
        the action and reasonable attorney fees as determined by the 
        court.
            (4) Notice.--
                    (A) Pre-filing.--Before filing an action under 
                paragraph (1), an attorney general shall provide to the 
                Commission--
                            (i) written notice of that action; and
                            (ii) a copy of the complaint for that 
                        action.
                    (B) Contemporaneous.--If an attorney general 
                determines that it is not feasible to provide the 
                notice required by subparagraph (A) before filing the 
                action, the notice and a copy of the complaint shall be 
                provided to the Commission when the action is filed.
            (5) Intervention.--If the Commission receives notice under 
        paragraph (4), it--
                    (A) may intervene in the action that is the subject 
                of the notice; and
                    (B) has the right--
                            (i) to be heard with respect to any matter 
                        that arises in that action; and
                            (ii) to file a petition for appeal.
            (6) 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.
            (7) 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) maintains a physical place of 
                        business.
            (8) Limitation on state action while federal action is 
        pending.--If the Commission or other appropriate Federal agency 
        under subsection (b) has instituted a civil action or an 
administrative action for violation of this Act, no State attorney 
general may bring an action under this subsection during the pendency 
of that action against any defendant named in the complaint of the 
Commission or the other agency for any violation of this Act alleged in 
the complaint.
    (f) Action by Provider of Internet Access Service.--
            (1) Action authorized.--A provider of Internet access 
        service adversely affected by a violation of section 5 may 
        bring a civil action in any district court of the United States 
        with jurisdiction over the defendant, or in any other court of 
        competent jurisdiction, to--
                    (A) enjoin further violation by the defendant; or
                    (B) recover damages in an amount equal to the 
                greater of--
                            (i) actual monetary loss incurred by the 
                        provider of Internet access service as a result 
                        of such violation; or
                            (ii) the amount determined under paragraph 
                        (2).
            (2) Statutory damages.--
                    (A) In general.--For purposes of paragraph 
                (1)(B)(ii), the amount determined under this paragraph 
                is the amount calculated by multiplying the number of 
                willful, knowing, or negligent violations by an amount, 
                in the discretion of the court, of up to $10 (with each 
                separately addressed unlawful message received by such 
                residents treated as a separate violation). In 
                determining the per-violation penalty under this 
                subparagraph, the court shall take into account the 
                degree of culpability, any history of prior such 
                conduct, ability to pay, the extent of economic gain 
                resulting from the violation, and such other matters as 
                justice may require.
                    (B) Limitation.--For any violation of paragraph 
                (2), (3), (4), or (5) of section 5(a), the amount 
                determined under subparagraph (A) may not exceed 
                $500,000, except that if the court finds that the 
                defendant committed the violation willfully and 
                knowingly, the court may increase the limitation 
                established by this paragraph from $500,000 to an 
                amount not to exceed $1,500,000.
            (3) Attorney fees.--In any action brought pursuant to 
        paragraph (1), 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.

SEC. 7. EFFECT ON OTHER LAWS.

    (a) Federal Law.--
            (1) Nothing in this Act shall be construed to impair the 
        enforcement of section 223 or 231 of the Communications Act of 
        1934 (47 U.S.C. 223 or 231, respectively), 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.
            (2) Nothing in this Act shall be construed to affect in any 
        way the Commission's authority to bring enforcement actions 
        under FTC Act for materially false or deceptive representations 
        in commercial electronic mail messages.
    (b) State Law.--
            (1) In general.--This Act supersedes any State or local 
        government statute, regulation, or rule regulating the use of 
        electronic mail to send commercial messages.
            (2) Exceptions.--Except as provided in paragraph (3), this 
        Act does not supersede or pre-empt--
                    (A) State trespass, contract, or tort law or any 
                civil action thereunder; or
                    (B) any provision of Federal, State, or local 
                criminal law or any civil remedy available under such 
                law that relates to acts of computer fraud perpetrated 
                by means of the unauthorized transmission of 
                unsolicited commercial electronic mail messages.
            (3) Limitation on exceptions.--Paragraph (2) does not apply 
        to a State or local government statute, regulation, or rule 
        that treats the mere sending of unsolicited commercial 
        electronic mail in a manner that complies with this Act as 
        sufficient to constitute a violation of such statute, 
        regulation, or rule or to create a cause of action thereunder.
    (c) No Effect on Policies of Providers of Internet Access 
Service.--Nothing in this Act shall be construed to have any effect on 
the lawfulness or unlawfulness, under any other provision of law, of 
the adoption, implementation, or enforcement by a provider of Internet 
access service of a policy of declining to transmit, route, relay, 
handle, or store certain types of electronic mail messages.

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

    (a) In General.--Not later than 24 months after the date of the 
enactment of this Act, the Commission, in consultation with the 
Department of Justice and other appropriate agencies, 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.
    (b) Required Analysis.--The Commission shall include in the report 
required by subsection (a) an analysis of the extent to which 
technological and marketplace developments, including changes in the 
nature of the devices through which consumers access their electronic 
mail messages, may affect the practicality and effectiveness of the 
provisions of this Act.

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




                                                       Calendar No. 735

107th CONGRESS

  2d Session

                                 S. 630

                          [Report No. 107-318]

_______________________________________________________________________

                                 A BILL

  To prohibit senders of unsolicited commercial electronic mail from 
 disguising the source of their messages, to give consumers the choice 
 to cease receiving a sender's unsolicited commercial electronic mail 
                   messages, and for other purposes.

_______________________________________________________________________

                            October 16, 2002

                       Reported with an amendment