[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1933 Introduced in House (IH)]
108th CONGRESS
1st Session
H. R. 1933
To reduce unsolicited commercial electronic mail and to protect
children from sexually oriented advertisements.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 1, 2003
Ms. Lofgren (for herself, Mrs. Tauscher, Mr. DeFazio, Mr. Frank of
Massachusetts, and Ms. Harman) introduced the following bill; which was
referred to the Committee on the Judiciary, and in addition to the
Committee on Energy and Commerce, 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
_______________________________________________________________________
A BILL
To reduce unsolicited commercial electronic mail and to protect
children from sexually oriented advertisements.
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 ``Restrict and Eliminate the Delivery
of Unsolicited Commercial Electronic Mail or Spam Act of 2003'' or the
``REDUCE Spam Act of 2003''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Commercial electronic mail message.--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.
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. An electronic mail
message shall not be considered to be a commercial electronic
mail message if the sender has established a personal
relationship with the recipient.
(2) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(3) Electronic mail address.--
(A) In general.--The term ``electronic mail
address'' means a destination (commonly expressed as a
string of characters) to which an electronic mail
message 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'').
(4) FTC act.--The term ``FTC Act'' means the Federal Trade
Commission Act (15 U.S.C. 41 et seq.).
(5) Header information.--The term ``header information''
means the source, destination, and routing information attached
to an electronic mail message, including the originating domain
name and originating electronic mail address.
(6) Initiate.--The term ``initiate'', when used with
respect to a commercial electronic mail message, means to
originate such message or to procure the transmission of such
message, either directly or through an agent, but shall not
include actions that constitute routine conveyance of such
message by a provider of Internet access service. For purposes
of this Act, more than 1 person may be considered to have
initiated the same commercial electronic mail message.
(7) 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)).
(8) 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)).
(9) Pre-existing business relationship.--The term ``pre-
existing business relationship'', when used with respect to a
commercial electronic mail message, means that either of the
following circumstances exist:
(A) Previous business transaction.--
(i) Within the 5-year period ending upon
receipt of a commercial electronic mail
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
(ii) the recipient was, at the time of such
transaction or thereafter, provided a clear and
conspicuous notice of an opportunity not to
receive further commercial electronic mail
messages from the sender and has not exercised such opportunity.
(B) Opt in.--The recipient has given the sender
permission to initiate commercial electronic mail
messages to the electronic mail address of the
recipient and has not subsequently revoked such
permission.
If a sender operates through separate lines of business or
divisions and holds itself out to the recipient as that
particular line of business or division, then such line of
business or division shall be treated as the sender for
purposes of this paragraph.
(10) Recipient.--The term ``recipient'', when used with
respect to a commercial electronic mail message, means the
addressee of such message.
(11) Sender.--The term ``sender'', when used with respect
to a commercial electronic mail message, means the person who
initiates such message. The term ``sender'' does not include a
provider of Internet access service whose role with respect to
electronic mail messages is limited to handling, transmitting,
retransmitting, or relaying such messages.
(12) Unsolicited commercial electronic mail message.--The
term ``unsolicited commercial electronic mail message'' means
any commercial electronic mail message that meets both of the
following requirements:
(A) The electronic mail message is addressed to a
recipient with whom the sender does not have a pre-
existing business relationship.
(B) The electronic mail message is not sent at the
request of, or with the express consent of, the
recipient.
SEC. 3. COMMERCIAL ELECTRONIC MAIL CONTAINING FRAUDULENT HEADER OR
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 header information
``(a) Whoever initiates the transmission of any unsolicited
commercial electronic mail message, with knowledge and intent that the
message contains or is accompanied by header information that is false
or materially misleading, shall be fined or imprisoned for not more
than 1 year, or both, under this title.
``(b) For purposes of this section, the terms `unsolicited
commercial electronic mail message' and `header information' have the
meanings given such terms in section 2 of the REDUCE Spam Act of
2003.''.
(b) Conforming Amendment.--The chapter analysis at the beginning of
chapter 63 of title 18, United States Code, is amended by adding at the
end the following:
``1351. Unsolicited commercial electronic mail.''.
SEC. 4. REQUIREMENTS FOR UNSOLICITED COMMERCIAL ELECTRONIC MAIL.
(a) Subject Line Requirements.--It shall be unlawful for any person
to initiate the transmission of an unsolicited commercial electronic
mail message to an electronic mail address within the United States,
unless the subject line includes:
(1) Commercial advertisements.--Except in the case of an
unsolicited commercial electronic mail message described in
paragraph (2)--
(A) an identification that complies with the
standards adopted by the Internet Engineering Task
Force for identification of unsolicited commercial
electronic mail messages; or
(B) in the case of the absence of such standards,
``ADV:'' as the first four characters.
(2) Adult advertisements.--In the case of an unsolicited
commercial electronic mail message that contains material that
may only be viewed, purchased, rented, leased, or held in
possession by an individual 18 years of age and older--
(A) an identification that complies with the
standards adopted by the Internet Engineering Task
Force for identification of adult-oriented unsolicited
commercial electronic mail messages; or
(B) in the case of the absence of such standards,
``ADV:ADLT'' as the first eight characters.
(b) Return Address Requirements.--
(1) Establishment.--It shall be unlawful for any person to
initiate the transmission of an unsolicited commercial
electronic mail message to an electronic mail address within
the United States, unless the sender establishes a valid
sender-operated return electronic mail address where the
recipient may notify the sender not to send any further
commercial electronic mail messages.
(2) Included statement.--All unsolicited commercial
electronic mail messages subject to this subsection shall
include a statement informing the recipient of the valid return
electronic mail address referred to in paragraph (1).
(3) Prohibition of sending after objection.--Upon
notification or confirmation by a recipient of his or her
request not to receive any further unsolicited commercial
electronic mail messages, it shall be unlawful for a person, or
anyone acting on that person's behalf, to send any unsolicited
commercial electronic mail message to that recipient. Such a
request shall be deemed to terminate a pre-existing business
relationship for purposes of determining whether subsequent
messages are unsolicited commercial electronic mail messages.
(c) Header and Subject Heading Requirements.--
(1) False or misleading header information.--It shall be
unlawful for any person to initiate the transmission of an
unsolicited commercial electronic mail message that such person
knows, or reasonably should know, contains or is accompanied by
header information that is false or materially misleading.
(2) Deceptive subject headings.--It shall be unlawful for
any person to initiate the transmission of an unsolicited
commercial electronic mail message with a subject heading that
such person knows, or reasonably should know, is likely to mislead a
recipient, acting reasonably under the circumstances, about a material
fact regarding the contents or subject matter of the message.
(d) Affirmative Defense.--A person who violates subsection (a) or
(b) shall not be liable if--
(1)(A) the person has established and implemented, with due
care, reasonable practices and procedures to effectively
prevent such violations; and
(B) the violation occurred despite good faith efforts to
maintain compliance with such practices and procedures; or
(2) within the 2-day period ending upon the initiation of
the transmission of the unsolicited commercial electronic mail
message in violation of subsection (a) or (b), such person
initiated the transmission of such message, or one
substantially similar to it, to less than 1,000 electronic mail
addresses.
SEC. 5. ENFORCEMENT.
(a) In General.--Section 4 of this Act shall be enforced by the
Commission under the FTC Act. For purposes of such Commission
enforcement, a violation of this Act shall be treated as a violation of
a rule under section 18 (15 U.S.C. 57a) of the FTC Act prohibiting an
unfair or deceptive act or practice.
(b) Rulemaking.--Within 30 days after the date of enactment of this
Act, the Commission shall institute a rulemaking proceeding concerning
enforcement of this Act. The rules adopted by the Commission shall
prevent violations of section 4 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, except that the
rules shall also include--
(1) procedures to minimize the burden of submitting a
complaint to the Commission concerning a violation of section 4
of this Act, including procedures to allow the electronic
submission of complaints to the Commission;
(2) civil penalties for violations of section 4 of this Act
in an amount sufficient to effectively deter future violations
and procedures to collect such penalties if the Commission
determines that a violation of section 4 of this Act has
occurred;
(3) procedures for the Commission to grant a reward of not
less than 20 percent of the total civil penalty imposed to the
first person that--
(A) identifies the person in violation of section 4
of this Act; and
(B) supplies information that leads to the
successful collection of a civil penalty by the
Commission; and
(4) civil penalties for knowingly submitting a false
complaint to the Commission.
(c) Regulations.--Not later than 180 days after the date of
enactment of this Act, the Commission shall conclude the rulemaking
proceeding initiated under subsection (b) and shall prescribe
implementing regulations.
SEC. 6. PRIVATE RIGHT OF ACTION.
(a) Action Authorized.--A recipient of an unsolicited commercial
electronic mail message, or a provider of Internet access service,
adversely affected by a violation of section 4 may bring a civil action
in any district court of the United States with jurisdiction over the
defendant to--
(1) enjoin further violation by the defendant; or
(2) recover damages in an amount equal to--
(A) actual monetary loss incurred by the recipient
or provider of Internet access service as a result of
such violation; or
(B) at the discretion of the court, the amount
determined under subsection (b).
(b) Statutory Damages.--For purposes of subsection (a)(2)(B), the
amount determined under this subsection 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. In determining
the per-violation penalty under this subsection, 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.
(c) Attorney Fees.--In any action brought pursuant to subsection
(a), 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. INTERNET ACCESS SERVICE PROVIDERS.
Nothing in this Act shall be construed--
(1) to enlarge or diminish the application of chapter 121
of title 18, relating to when a provider of Internet access
service may disclose customer communications or records;
(2) to require a provider of Internet access service to
block, transmit, route, relay, handle, or store certain types
of electronic mail messages;
(3) to prevent or limit, in any way, a provider of Internet
access service from adopting a policy regarding commercial
electronic mail messages, including a policy of declining to
transmit certain types of commercial electronic mail messages,
or from enforcing such policy through technical means, through
contract, or pursuant to any other provision of Federal, State,
or local criminal or civil law; or
(4) to render lawful any such policy that is unlawful under
any other provision of law.
SEC. 8. EFFECT ON OTHER LAWS.
(a) Federal Law.--Nothing in this Act shall be construed to impair
the enforcement of section 223 or 231 of the Communications Act of
1934, chapter 71 (relating to obscenity) or 110 (relating to sexual
exploitation of children) of title 18, United States Code, or any other
Federal criminal statute.
(b) State Law.--No State or local government may impose any civil
liability for commercial activities or actions in interstate or foreign
commerce in connection with an activity or action described in section
4 of this Act that is inconsistent with the treatment of such
activities or actions under this Act, except that this Act shall not
preempt any civil remedy under State trespass, contract, or tort law or
under any provision of Federal, State, or local criminal law or any
civil remedy available under such law that relates to acts of computer
fraud or abuse arising from the unauthorized transmission of
unsolicited commercial electronic mail messages.
SEC. 9. FTC STUDY.
Not later than 24 months after the date of enactment of this Act,
the Commission, in consultation with 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 Congress to modify such provisions.
SEC. 10. EFFECTIVE DATE.
The provisions of this Act shall take effect 180 days after the
date of the enactment of this Act, except that subsections (b) and (d)
of section 5 shall take effect upon the date of the enactment of this
Act.
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