[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.
                                 <all>