[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2214 Introduced in House (IH)]







108th CONGRESS
  1st Session
                                H. R. 2214

           To prevent unsolicited commercial electronic mail.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 22, 2003

 Mr. Burr (for himself, Mr. Sensenbrenner, Mr. Tauzin, Mr. Goodlatte, 
   Mr. Upton, Ms. Hart, Mr. Stearns, and Mr. Cannon) introduced the 
   following bill; which was referred to the Committee on Energy and 
  Commerce, and in addition to the Committee on the Judiciary, for a 
 period to be subsequently determined by the Speaker, in each case for 
consideration of such provisions as fall within the jurisdiction of the 
                          committee concerned

_______________________________________________________________________

                                 A BILL


 
           To prevent unsolicited commercial electronic mail.

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

SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Reduction in 
Distribution of Spam Act of 2003''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title and table of contents.
Sec. 2. Findings and determination of policy.
    TITLE I--PROTECTIONS AGAINST CERTAIN COMMERCIAL ELECTRONIC MAIL

Sec. 101. Restrictions on commercial electronic mail.
Sec. 102. Private right of action for providers of Internet access 
                            service.
Sec. 103. Actions by States.
Sec. 104. Prohibition of class actions; attorney's fees.
Sec. 105. Enforcement by Federal Trade Commission.
Sec. 106. Restrictions on other unsolicited transmissions.
Sec. 107. Exclusiveness of remedies.
          TITLE II--AMENDMENTS TO TITLE 18, UNITED STATES CODE

Sec. 201. Criminal penalties and related provisions.
                     TITLE III--GENERAL PROVISIONS

Sec. 301. Regulations and report.
Sec. 302. Effect on other laws.
Sec. 303. Study of effects of Act.
Sec. 304. Definitions.
Sec. 305. Effective date.

SEC. 2. FINDINGS AND DETERMINATION OF POLICY.

    (a) Findings.--The Congress finds the following:
            (1) Electronic mail (email) has rapidly become an integral 
        means of commercial and personal communication and presents 
        unprecedented opportunities for the development and growth of 
        frictionless global commerce.
            (2) With the increasingly accepted use of email has come 
        the explosion of unsolicited commercial electronic mail (UCE), 
        also known as spam, which is flooding the arteries of critical 
        communications networks and servers and threatening the 
        viability of email as a primary communications medium.
            (3) Internet observers and experts are concerned about the 
        effect of the increasing abundance of UCE on network bandwidth, 
        network storage costs, user productivity, and legal 
        vulnerability to reduce functionality of global networks. UCE 
        currently comprises nearly 40 percent of all email activity, up 
        from 8 percent in 2001.
            (4) UCE poses network security risks to businesses and 
        governments because of the introduction of viruses and 
        malicious code delivered via UCE messages.
            (5) The increasing prevalence of UCE has led to a decreased 
        level of consumer trust for legitimate email marketers and 
        decreased willingness of end users to test new advertising 
        formats, thus affecting potential for all forms of advertising 
        in an already depressed marketplace.
            (6) For the Internet to maintain and build upon its 
        commercial growth, users must have confidence in the security 
        and usability of this electronic medium. But ``e-commerce'' is 
        still in its infancy and any legislation or regulation 
        regarding email must be narrowly tailored to deal with real 
        problems.
            (7) While some senders of UCE provide simple and reliable 
        ways for recipients to reject (or ``opt-out'' of) receipt of 
        future UCE from such senders, other senders provide no such 
        ``opt-out'' mechanism, or refuse to honor the repeated requests 
        of recipients not to receive UCE.
            (8) UCE frequently contains fraudulent claims or sexually 
        explicit material. UCE with this type of content merits 
        additional restrictions and penalties.
            (9) An increasing number of senders of UCE purposefully 
        include misleading information or disguise the source of such 
        email, which prevents recipients from recognizing UCE and 
        impedes ISPs' ability to identify the source of disruption to 
        their communications networks. There is no legitimate reason to 
        falsify the header information accompanying commercial email 
        and these actions in some cases merit criminal penalties.
            (10) Such intentionally misleading information can also 
        evade UCE filtering technology at both an ISP level as well as 
        at the end user level. Filtering technology is one of the best 
        methods to provide comprehensive protection to ISPs' 
        communications networks and to the end user. But in the absence 
        of alternative solutions, UCE filters attempting to catch more 
        spam are unwittingly blocking an increasing amount of personal 
        and commercial email that end users actually want and need to 
        receive.
            (11) In making good faith efforts to protect their citizens 
        from the truly interstate phenomenon of spam, some States have 
        inadvertently set up multiple and conflicting regimes governing 
        commercial email that make it difficult for legitimate 
        commercial emailers to comply but do little to stop egregious 
        spammers.
            (12) Federal Government action is necessary to preserve the 
        communications networks that sustain the digital economy and 
        protect consumers. But ultimately, government action can only 
        solve part of the problem and must be combined with 
        technological solutions, customer awareness, and trusted sender 
        cooperative agreements between legitimate senders and ISPs to 
        effectively curb UCE.
    (b) Congressional Determination of Public Policy.--On the basis of 
the findings in subsection (a), the Congress determines that--
            (1) there is substantial government interest in regulation 
        of UCE;
            (2) senders of UCE should not mislead recipients or 
        disguise the electronic source of the electronic mail message, 
        nor send sexually explicit emails without appropriate warnings;
            (3) recipients of UCE should be able to recognize UCE and 
        have an opportunity to decline to receive additional UCE from 
        the same source; and
            (4) ISPs, recipients of UCE, and others affected by UCE 
        also have a right to use technological measures to protect 
        their networks and computers from receiving unwanted or harmful 
        commercial electronic mail.

    TITLE I--PROTECTIONS AGAINST CERTAIN COMMERCIAL ELECTRONIC MAIL

SEC. 101. RESTRICTIONS ON COMMERCIAL ELECTRONIC MAIL.

    (a) Required Inclusions in All Commercial Electronic Mail.--
            (1) In general.--No person may initiate in interstate 
        commerce the transmission, to a covered computer, of any 
        commercial electronic mail message unless the message contains 
        all of the following:
                    (A) Identification.--Clear and conspicuous 
                identification that the message is an advertisement or 
                solicitation.
                    (B) Notice of opt-out opportunity.--Clear and 
                conspicuous notice of the opportunity under 
                subparagraph (C) to decline to receive future 
                unsolicited commercial electronic mail messages from 
                the sender.
                    (C) Mechanism to opt-out.--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 not less than 30 
                        days after the transmission of the original 
                        message.
                    (D) Street address.--A valid physical street 
                address of the sender.
            (2) More detailed requests possible.--In a commercial 
        electronic mail message complying with the requirements of 
        paragraph (1)(C), the sender may also include, in the message, 
        options for the recipient to submit 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, based upon products, services, 
        divisions, organizations, companies, or other selections.
            (3) Temporary inability to receive messages.--A return 
        electronic mail address or other mechanism does not fail to 
        comply with the requirements of paragraph (1)(C) 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.
    (b) Prohibition of Transmission of Unsolicited Commercial 
Electronic Mail After Objection.--If a recipient makes a request to a 
sender, by using a mechanism described in subsection (a)(1)(C), not to 
receive some or any unsolicited commercial electronic mail messages 
from such sender--
            (1) the sender may not initiate the transmission to the 
        recipient, during the 3-year period beginning 10 business days 
        after the receipt of such request, of an unsolicited commercial 
        electronic mail message that falls within the scope of the 
        request, except that during the 6-month period beginning on the 
        effective date under section 305 such 3-year period shall begin 
        20 business days after receipt of such request;
            (2) no person acting on behalf of the sender may initiate 
        the transmission to the recipient, during the 3-year period 
        beginning 10 business days after the receipt by such person of 
        such request, of an unsolicited commercial electronic mail 
        message that such person knows, should have known, or 
        consciously avoids knowing falls within the scope of the 
        request, except that during the 6-month period beginning on the 
        effective date under section 305 such 3-year period shall begin 
        20 business days after receipt of such request;
            (3) no person acting on behalf of the sender may assist in 
        initiating the transmission to the recipient, through the 
        provision or selection of addresses to which the message will 
        be transmitted, of an unsolicited commercial electronic mail 
        message that such person knows, should have known, or 
        consciously avoids knowing would violate paragraph (1) or (2); 
        and
            (4) the sender may not sell, lease, exchange, or otherwise 
        transfer or release the electronic mail address of the 
        recipient (including through any transaction or other transfer 
        involving mailing lists bearing the electronic mail address of 
        the recipient) for any purpose other than compliance with this 
        Act or any other provision of law.
    (c) Prohibition of Transmission of Commercial Electronic Mail With 
Fraudulent Header Information.--No person may initiate in interstate 
commerce the transmission, to a covered computer, of a commercial 
electronic mail message that contains or is accompanied by header 
information that is false or misleading (including header information 
that uses a third party's domain name without the third party's 
permission). 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 a legitimate holder 
of the address, or access to which was obtained by means of false or 
fraudulent pretense or representations, shall be considered misleading.
    (d) Prohibition of Transmission of Commercial Electronic Mail From 
Illegally Harvested Electronic Mail Addresses.--
            (1) In general.--No person may initiate in interstate 
        commerce the transmission, to a covered computer, of a 
        commercial electronic mail message that is prohibited under 
        subsection (a), (b), or (c) or assist in the origination of 
        such a message through the provision or selection of electronic 
        mail addresses to which the transmission of such message is 
        initiated, if such person knows, should have known, or 
        consciously avoids knowing, that--
                    (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, without the authorization of that 
                person; and
                    (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, commercial electronic mail 
                messages.
            (2) Disclaimer.--Nothing in this subsection creates an 
        ownership or proprietary interest in such electronic mail 
        addresses.
    (e) Savings Provision for GLBA.--Subsection (b)(4) of this section 
shall not apply to prohibit a disclosure by a financial institution of 
nonpublic personal information that is permissible under title V of the 
Gramm-Leach-Bliley Act (15 U.S.C. 6801 et seq.) and the regulations 
thereunder.

SEC. 102. PRIVATE RIGHT OF ACTION FOR PROVIDERS OF INTERNET ACCESS 
              SERVICE.

    (a) Authorization.--A provider of Internet access service adversely 
affected by--
            (1) a pattern or practice of violations of section 101(b) 
        or the regulations prescribed under such section; or
            (2) a violation of subsection (c) or (d) of section 101 or 
        the regulations prescribed under such subsection,
may bring, in an appropriate district court of the United States, 
either or both of the civil actions under subsection (b).
    (b) Civil Actions.--The civil actions under this subsection are as 
follows:
            (1) Injunction.--An action to enjoin the defendant from 
        further engaging in such pattern or practice or committing any 
        further violation, as appropriate.
            (2) Monetary damages.--An action to obtain damages in an 
        amount equal to the greater of--
                    (A) the actual monetary loss incurred by the 
                provider of Internet access service as a result of such 
                violation; or
                    (B) the amount determined under subsection (c).
    (c) Statutory Damages.--
            (1) Violations of protection for recipients.--In the case 
        of a violation of section 101(b) or the regulations prescribed 
        under such section:
                    (A) Damages per violation.--Except as provided in 
                subparagraphs (B), (C), and (D), the amount determined 
                under this subsection is $10 for each separate 
                electronic mail address to which is initiated, in 
                violation of such subsection, the transmission of a 
                commercial electronic mail message, over the facilities 
                of the provider of Internet access service.
                    (B) Limitation.--Except as provided in 
                subparagraphs (C) and (D), for each commercial 
                electronic mail message the transmission of which is 
                unlawfully initiated and that is addressed to multiple 
                electronic mail addresses, the amount determined under 
                subparagraph (A) may not exceed $500,000.
                    (C) Treble damages for intentional violations.--If 
                the court finds in an action under this section that 
                the defendant committed the violation willfully or 
                knowingly, the court may, in its discretion, increase 
                the amount of the limitation under subparagraph (B) to 
                an amount equal to not more than three times the amount 
                otherwise available under such subparagraph, not to 
                exceed $1,500,000. In making a determination with 
                regard to the amount of an increase under this 
                subparagraph, the court shall take into consideration 
                whether violation involved use of automated means to 
                generate electronic mail addresses based on 
                permutations of combining of names, letters, or 
                numbers.
                    (D) Reduction.--
                            (i) In general.--Subject to clause (ii), 
                        the court shall reduce the amount under 
                        subparagraph (A) for each violation if the 
                        court determines that--
                                    (I) the defendant established and 
                                implemented, with due care, reasonable 
                                practices and procedures intended to 
                                prevent such violations; and
                                    (II) such violations occurred 
                                despite good faith efforts to maintain 
                                compliance with such practices and 
                                procedures.
                            (ii) Limitation.--If the amount otherwise 
                        determined under this paragraph exceeds 
                        $75,000, the court may not reduce the amount 
                        under subparagraph (A) for each violation such 
                        that the amount determined under this paragraph 
                        is less than $75,000.
            (2) Violations of protections for providers of internet 
        access service.--In the case of a violation of subsection (c) 
        or (d) of section 101 or the regulations prescribed under such 
        subsection, the amount determined under this subsection is $50 
        for each separate electronic mail address to which the 
        transmission of a commercial electronic mail message is 
        initiated in violation of such subsection.

SEC. 103. ACTIONS BY STATES.

    (a) Civil Action.--Except as provided in subsection (c), in any 
case in which the attorney general of a State, or an official or agency 
of a State, has reason to believe that any person has engaged or is 
engaging in a pattern or practice of initiating transmissions to 
residents of that State that violates subsection (c) or (d) of section 
101 or the regulations prescribed under such subsection, the attorney 
general, official, or agency of the State may bring either or both of 
the following civil actions on behalf of its residents:
            (1) Injunction.--An action to enjoin the defendant from 
        further engaging in such pattern or practice.
            (2) Monetary damages.--An action to obtain damages on 
        behalf of residents of the State, in an amount equal to the 
        greater of--
                    (A) the actual monetary loss suffered by such 
                residents; or
                    (B) the amount determined under subsection (b).
    (b) Statutory Damages.--
            (1) Per violation.--Except as provided in paragraphs (2) 
        and (3), for purposes of subsection (a)(2)(B), the amount 
        determined under this subsection is $100 for each separate 
        electronic mail address to which the transmission of a 
        commercial electronic mail message is initiated in violation of 
        the subsections or regulations referred to in subsection (a).
            (2) Limitation.--For each commercial electronic mail 
        message the transmission of which is unlawfully initiated and 
        that is addressed to multiple electronic mail addresses, the 
        amount determined under paragraph (1) may not exceed--
                    (A) except as provided in subparagraph (B), 
                $1,000,000; or
                    (B) in any case in which the court increases the 
                amount of the award pursuant to paragraph (3), 
                $3,000,000.
            (3) Treble damages.--Subject to paragraph (2)(B), in an 
        action under this section, the court may, in its discretion, 
        increase the amount of the award to an amount equal to not more 
        than three times the amount otherwise available under paragraph 
        (1). In making a determination under this paragraph, the court 
        shall take into consideration the nature, circumstances, 
        extent, and gravity of the violation involved, including the 
        following factors:
                    (A) The volume of electronic mail involved in the 
                violation.
                    (B) The manner in which the violation was 
                perpetrated.
                    (C) Whether the violation involved a violation of 
                any other provision of Federal law.
                    (D) The extent of economic gain resulting from the 
                violation.
                    (E) Any history of prior violations by the 
                violator.
                    (F) Whether violation involved use of automated 
                means to generate electronic mail addresses based on 
                permutations of combining of names, letters, or 
                numbers.
                    (G) Such other factors as justice may require.
    (c) Limitation in Cases of Federal Action.--If the Commission has 
commenced an administrative or civil action for a violation of 
subsection (c) or (d) of section 101 or the regulations prescribed 
under such subsection, with respect to any conduct, or for a violation 
of section 622 of title 18, United States Code, with respect to any 
conduct, or the Attorney General has commenced a criminal proceeding or 
civil action for a violation of section 622 of title 18, United States 
Code, with respect to any conduct, no State may bring an action under 
this section with respect to the same conduct.
    (d) Exclusive Jurisdiction of Federal Courts.--The district courts 
of the United States, the United States courts of any territory, and 
the District Court of the United States for the District of Columbia 
shall have exclusive jurisdiction over all civil actions brought under 
this section. Upon proper application, such courts shall also have 
jurisdiction to issue writs of mandamus, or orders affording like 
relief, commanding the defendant to comply with the provisions of 
subsection (c) or (d) of section 101 or the regulations prescribed 
under such section, including the requirement that the defendant take 
such action as is necessary to remove the danger of such violation. 
Upon a proper showing, a permanent or temporary injunction or 
restraining order shall be granted without bond.
    (e) Notice to Commission of State Action; Intervention.--The State 
shall serve prior written notice of any civil action under this section 
upon the Commission and provide the Commission with a copy of its 
complaint, except in any case where such prior notice is not feasible, 
in which case the State shall serve such notice immediately upon 
instituting such action. The Commission shall have the right to 
intervene in the action, upon so intervening, to be heard on all 
matters arising in the action, and to file petitions for appeal.
    (f) Venue and Service of Process.--Any civil action brought under 
this section in a district court of the United States may be brought in 
any district court of the United States that meets applicable 
requirements relating to venue under section 1391 of title 28, United 
States Code.
    (g) Investigatory Powers.--For purposes of bringing any civil 
action under this section, nothing in this Act shall prevent the 
attorney general of a State, or an official or agency of a State, from 
exercising the powers conferred on the attorney general, official, or 
agency by the laws of such State to conduct investigations or to 
administer oaths or affirmations or to compel the attendance of 
witnesses or the production of documentary and other evidence.

SEC. 104. PROHIBITION OF CLASS ACTIONS; ATTORNEY'S FEES.

    (a) Prohibition of Class Actions.--A civil action arising under 
section 102 or 103 may not be brought as a plaintiff class action 
pursuant to the Federal Rules of Civil Procedure.
    (b) Costs and Attorney's Fees.--In any action brought under section 
102 or 103, the court may, in its discretion, require an undertaking 
for the payment of costs of such action, and assess reasonable costs, 
including reasonable attorneys' fees, against any party found in the 
action to have committed a violation on which the action was based.

SEC. 105. ENFORCEMENT BY FEDERAL TRADE COMMISSION.

    The same powers and authorities by which the Federal Trade 
Commission and the Attorney General enforce compliance, by persons 
subject to the jurisdiction of the Commission under the Federal Trade 
Commission Act, with the provisions of such Act and the regulations 
issued thereunder by the Commission, shall be available to the 
Commission and the Attorney General to enforce compliance, by all 
persons, with the provisions of section 101 of this Act and the 
regulations issued under such section. For purposes of exercising such 
powers and authorities to enforce compliance with rules issued under 
section 101 of this Act, such rules shall be treated as having been 
issued under section 18 of the Federal Trade Commission Act 
(notwithstanding issuance in accordance with section 301(a) of this 
Act).

SEC. 106. RESTRICTIONS ON OTHER UNSOLICITED TRANSMISSIONS.

    (a) Clarification Regarding Location of Originator.--Section 
227(b)(1) of the Communications Act of 1934 (47 U.S.C. 227(b)(1)) is 
amended, in the matter preceding subparagraph (A), by inserting ``, or 
any person outside the United States if the recipient is within the 
United States'' after ``United States''.
    (b) Clarification Regarding Prohibition of Sending Unsolicited Fax 
Advertisements.--Section 227(b)(1)(C) of the Communications Act of 1934 
(47 U.S.C. 227(b)(1)(C)) is amended by inserting ``, or hire, employ, 
contract, or otherwise cause someone else to use,'' after ``to use''.

SEC. 107. EXCLUSIVENESS OF REMEDIES.

    The remedies of this title are the exclusive civil remedies for 
violations of section 101.

          TITLE II--AMENDMENTS TO TITLE 18, UNITED STATES CODE

SEC. 201. CRIMINAL PENALTIES AND RELATED PROVISIONS.

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

                     ``CHAPTER 30--ELECTRONIC MAIL

``Sec.
``621. Definitions for chapter.
``622. Falsifying sender's identity in commercial electronic mail.
``623. Failure to place warning labels on unsolicited commercial 
                            electronic mail containing sexually 
                            oriented material.
``624. Criminal penalties for violation of certain sections.
``625. Illicit harvesting of electronic mail addresses.
``626. Civil enforcement of chapter.
``Sec. 621. Definitions for chapter
    ``In this chapter, the following definitions apply:
            ``(1) Commercial electronic mail message.--
                    ``(A) Generally.--The term `commercial electronic 
                mail message' means an electronic mail message the 
                primary purpose of which is the commercial 
                advertisement or promotion of a product or service.
                    ``(B) 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, indicate 
                that the primary purpose of the message is the 
                commercial advertisement or promotion of a product or 
                service.
            ``(2) Electronic mail message.--The term `electronic mail 
        message' means a message as transmitted to an electronic mail 
        address.
            ``(3) Consent.--
                    ``(A) In general.--The term `consent', when used 
                with respect to a commercial electronic mail message, 
                means that--
                            ``(i) the recipient has expressly consented 
                        to receive the message, either in response to a 
                        clear and conspicuous request for such consent 
                        or through an affirmative request to receive 
                        such message or messages; and
                            ``(ii) the recipient has not subsequently 
                        made a request, by using a mechanism described 
                        in section 101(a)(1)(C) of the Reduction in 
                        Distribution of Spam Act of 2003, not to 
                        receive such message or not to receive messages 
                        of a scope within which such message falls.
                    ``(B) Messages from third parties.--Such term 
                includes consent to receipt of a message from a third 
                party pursuant to transfer of the recipient's 
                electronic mail address, but only if the recipient was 
                provided with clear and conspicuous notice that such 
                transfer could occur.
                    ``(C) Messages to previous holder of electronic 
                mail address.--In the case of a commercial electronic 
                mail message transmitted or delivered to a recipient at 
                an electronic mail address that has been reassigned to 
                the recipient from a previous user, such recipient 
                shall be considered for purposes of this definition to 
                have consented to receipt of such messages at such 
address to the same extent as the previous authorized user or users of 
such address unless the sender of the message has actual knowledge that 
the address has been so reassigned or of a request under subclause 
(A)(ii) by the recipient.
                    ``(D) Timing.--Consent shall be considered to be 
                given, for purposes of this definition, at the time 
                such consent is received by the sender.
            ``(4) 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.
            ``(5) Protected computer.--The term `protected computer' 
        means a computer described in section 1030(e)(2)(B).
            ``(6) State.--The term `State' includes the District of 
        Columbia, Puerto Rico, and any other territory or possession of 
        the United States.
            ``(7) Unsolicited commercial electronic mail message.--The 
        term `unsolicited commercial electronic mail message' means any 
        commercial electronic mail message that is transmitted to a 
        recipient without the recipient's prior consent.
``Sec. 622. Falsifying sender's identity in commercial electronic mail.
    ``(a) In General.--Whoever intentionally sends to a covered 
computer a commercial electronic mail message that the sender knows 
falsifies the sender's identity shall be punished as provided in 
section 624.
    ``(b) Methods of Falsifying Identity.--For the purposes of 
subsection (a), an identity may be falsified by any means, and the 
following conduct shall be considered to be a falsification of 
identity:
            ``(1) By accompanying the message with header information 
        that is false as to the identity of the sender (including 
        header information that uses a third party's domain name 
        without the third party's permission) or as to the routing of 
        the message.
            ``(2) By accessing a covered computer or computer network 
        without authorization or exceeding authorized access and, by 
        means of such conduct, sending, from or through that computer 
        or network, the message that falsifies the identity of the 
        sender.
            ``(3) Registering, using information that falsifies the 
        identity of the registrant, for multiple electronic mail 
        accounts or domain names, and sending the message from those 
        accounts, or from or advertising those domain names, but 
        failing to include in a conspicuous form in the message the 
        identity and current contact information of the sender.
    ``(c) Affirmative Defense.--It is an affirmative defense to a 
prosecution for an offense under subsection (a), which the defendant 
must prove by a preponderance of the evidence, that the defendant sent 
fewer than 100 messages of the type prohibited by that subsection 
during any 30-day period.
``Sec. 623. Failure to place warning labels on unsolicited commercial 
              electronic mail containing sexually oriented material
    ``(a) In General.--Whoever knowingly sends an unsolicited 
commercial electronic mail message that includes sexually oriented 
material to a covered computer and knowingly fails to include in or 
associated with that electronic mail message the marks or notices 
prescribed by the Federal Trade Commission under this section shall be 
punished as provided in section 624.
    ``(b) Prescription of Marks and Notices.--The Federal Trade 
Commission shall prescribe marks or notices to be included in or 
associated with unsolicited commercial electronic mail that contains a 
sexually oriented advertisement, in order to inform the recipient of 
that fact and to facilitate filtering of such electronic mail.
    ``(c) Definition.--In this section, the term `sexually oriented 
material' means any material that depicts sexually explicit conduct (as 
that term is defined in section 2256), unless the depiction constitutes 
a small and insignificant part of the whole, the remainder of which is 
not primarily devoted to sexual matters.
``Sec. 624. Criminal penalties for violation of certain sections
    ``(a) Punishment.--The punishment for an offense under section 622 
or 623 is--
            ``(1) for an offense--
                    ``(A) occurring after the defendant was convicted 
                for another offense under this chapter; or
                    ``(B) involving 10,000 or more electronic mail 
                messages sent within a 30-day period;
a fine under this title or imprisonment for not more than 2 years, or 
both; and
            ``(2) in any other case, a fine under this title or 
        imprisonment for not more than one year, or both.
    ``(b) Factors To Be Considered by Sentencing Commission.--In 
establishing sentencing guidelines for offenses to which this section 
applies, the United States Sentencing Commission shall consider the 
following factors:
            ``(1) The volume of commercial electronic mail involved in 
        the violation.
            ``(2) The manner in which the violation was perpetrated.
            ``(3) Whether the violation involved a violation of any 
        other Federal law.
            ``(4) The extent of economic gain resulting from the 
        violation.
            ``(5) Any history of prior violations by the violator.
            ``(6) Such other factors as justice may require.
``Sec. 625. Illicit harvesting of electronic mail addresses
    ``Whoever knowingly and through the direct or indirect use of a 
covered computer uses an automated means to obtain electronic mail 
addresses from an Internet website or proprietary online service 
operated by another person, without the authorization of that person 
and uses those addresses in another violation of this chapter, shall be 
fined under this title or imprisoned not more than one year, or both.
``Sec. 626. Civil enforcement
    ``(a) Civil Action by Providers.--A provider of Internet access 
service (as defined in section 231(e) of the Communications Act of 1934 
(47 U.S.C. 231(e)(4)) who is adversely affected by illicit conduct 
described in this chapter may, in a civil action, recover any 
appropriate relief, including actual damages or, at the election of the 
plaintiff, statutory damages of $500 for each electronic mail message 
involved in the illicit conduct. A class action may not be brought for 
a claim under this subsection.
    ``(b) Additional Enforcement Tools for the Department of Justice.--
            ``(1) Civil penalty.--The Attorney General may, in a civil 
        action against any person who engages in illicit conduct 
        described in this chapter, recover a civil penalty of not to 
        exceed $500 for each electronic mail message involved in the 
        illicit conduct.
            ``(2) Intervention.--The Justice Department may also 
        intervene in any civil action brought under subsection (a) or 
        subsection (d).
    ``(c) Remedies Under the Federal Trade Commission Act.--The same 
powers and authorities by which the Federal Trade Commission and the 
Attorney General enforce compliance, by persons subject to the 
jurisdiction of the Commission under the Federal Trade Commission Act, 
with the provisions of such Act and the regulations issued thereunder 
by the Commission, shall be available to the Commission and the 
Attorney General, respectively, for use against all persons who engage 
in illicit conduct described in this chapter with respect to that 
conduct.
    ``(d) State Attorneys General.--Unless the Attorney General or the 
Federal Trade Commission has commenced a criminal prosecution or civil 
proceedings under subsection (b) or (c) with respect to the same 
conduct, the chief law enforcement officer of a State may, in a civil 
action, obtain appropriate relief for illicit conduct described in this 
chapter, including statutory damages of $500 for each electronic mail 
message sent to a covered computer in that State involved in that 
conduct.
    ``(e) Exclusiveness of Remedies.--The civil remedies of this 
section are the exclusive civil remedies for illicit conduct described 
in this chapter.
    ``(f) Exclusive Original Jurisdiction in Federal Courts.--The 
United States district courts shall have exclusive original 
jurisdiction over any civil action commenced under this section.
    ``(g) Definition.--As used in this section, the term `illicit 
conduct' means a violation, without regard to the affirmative defense 
provided in section 622(c)''.
    (b) Clerical Amendment.--The table of chapters at the beginning of 
part I of title 18, United States Code, is amended by inserting after 
the item relating to chapter 29 the following new item:

``30. Electronic mail.......................................     621''.
    (c) Effective Date.--The amendments made by this title shall take 
effect 120 days after the date of the enactment of this title.

                     TITLE III--GENERAL PROVISIONS

SEC. 301. REGULATIONS AND REPORT.

    (a) Regulations.--
            (1) In general.--Not later than 12 months after the date of 
        the enactment of this Act, the Commission shall issue 
        regulations to implement sections 101, 105, and 304. In issuing 
        such regulations, the Commission shall consult with the Federal 
        Communications Commission. Such regulations shall be issued in 
        accordance with section 553 of title 5, United States Code.
            (2) Limitation.--Paragraph (1) may not be construed to 
        authorize the Commission to establish a requirement pursuant to 
        section 101(a)(1)(A) to include any specific words, characters, 
        marks, or labels in a commercial electronic mail message, or to 
        include the identification required by section 101(a)(1)(A) in 
        any particular part of such a mail message (such as the subject 
        line or body).
    (b) Report Regarding Preventing Unwanted Commercial Electronic Mail 
Messages.--Within 240 days after the date of the enactment of this Act, 
the Commission and the Federal Communications Commission shall jointly 
submit a report to the Congress regarding the need to protect the 
rights of users of electronic mail to avoid receiving unwanted 
commercial electronic mail. The report shall--
            (1) analyze the effectiveness and efficiency, for 
        preventing unwanted commercial electronic mail messages, of 
        requiring that each such message include specific words, 
        characters, marks, or labels to identify the message as a 
        commercial electronic mail message;
            (2) compare and evaluate alternative methods and procedures 
        (individually or in combination with each other and the method 
        described in paragraph (1)) for their effectiveness in 
        protecting such rights and in terms of their cost and other 
        advantages and disadvantages, including the extent to which 
        such methods and procedures can facilitate screening and 
        removal of unwanted commercial electronic mail messages;
            (3) compare and evaluate--
                    (A) alternative methods for persons aggrieved by 
                receipt of unwanted commercial electronic mail messages 
                to report such receipt and submit such messages to the 
                Commission; and
                    (B) alternative means of notifying the public of 
                the availability of such methods;
            (4) evaluate whether there is a need--
                    (A) for additional Commission authority to further 
                expand or restrict the electronic mail messages which 
                are commercial or unsolicited, for purposes of this 
                Act; or
                    (B) to further expand or restrict the prohibitions, 
                limitations, definitions, or exceptions of this Act, 
                including prohibiting subject headings in commercial 
                electronic mail messages that are misleading regarding 
                the contents or subject matter of the message; and
            (5) propose legislation to effectuate such specific 
        expansions or restrictions, if a need for any expansions or 
        restrictions is determined pursuant to paragraph (4).

SEC. 302. EFFECT ON OTHER LAWS.

    (a) Federal Law.--
            (1) Obscenity and exploitation of children.--Nothing in 
        this Act may 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) Communications act of 1934.--Except for the amendments 
        made by section 106, nothing in this Act may be construed to 
        affect the applicability of any provision of title II of the 
        Communications Act of 1934.
    (b) State Law.--This Act preempts any law of a State, or of a 
political subdivision of a State, that expressly regulates the form of, 
required inclusions in, the manner or timing of sending, or the form, 
manner, or effect of recipient requests regarding receipt of, 
commercial electronic mail, but such laws preempted shall not include 
any law regulating falsification in commercial electronic mail of the 
identity of the sender, of authentication information relating to the 
sender, of header or routing information relating to such mail, or of 
subject line information.
    (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, receive, or store certain types of electronic mail messages.

SEC. 303. STUDY OF EFFECTS OF ACT.

    (a) In General.--Not later than 24 months after the date of the 
enactment of this Act, the Commission and the Federal Communications 
Commission shall jointly submit a report to the Congress that provides 
a detailed analysis of the effectiveness and enforcement of the 
provisions, definitions, and exceptions of title I and this title and 
the need (if any) for the Congress to modify such provisions, 
definitions, and exceptions.
    (b) Required Analysis.--The report required by subsection (a) shall 
include 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 
title I and this title.

SEC. 304. DEFINITIONS.

    For purposes of this Act:
            (1) Business day.--The term ``business day'' means any day 
        other than a Saturday, Sunday, or legal public holiday.
            (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 product or service.
                    (B) 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, indicate that the primary 
                purpose of the message is the commercial advertisement 
                or promotion of a product or service.
                    (C) Clarification regarding certain messages.--Such 
                term does not include any electronic mail message 
                having a primary purpose other than that specified in 
                subparagraph (A), including any electronic mail message 
                the primary purpose of which is to facilitate, 
                complete, confirm, or provide or request information 
                concerning--
                            (i) a specific commercial transaction 
                        between the sender and the recipient that the 
                        recipient has previously agreed to enter into 
                        with the sender;
                            (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 
                        or related benefit plan or service.
            (3) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (4) Consent.--
                    (A) In general.--The term ``consent'', when used 
                with respect to a commercial electronic mail message, 
                means that--
                            (i) the recipient has expressly consented 
                        to receive the message, either in response to a 
                        clear and conspicuous request for such consent 
                        or through an affirmative request to receive 
                        such message or messages; and
                            (ii) the recipient has not subsequently 
                        made a request, by using a mechanism described 
                        in section 101(a)(1)(C), not to receive such 
                        message or not to receive messages of a scope 
                        within which such message falls.
                    (B) Messages from third parties.--Such term 
                includes consent to receipt of a message from a third 
                party pursuant to transfer of the recipient's 
                electronic mail address, but only if the recipient was 
                provided with clear and conspicuous notice that such 
                transfer could occur.
                    (C) Messages to previous holder of electronic mail 
                address.--In the case of a commercial electronic mail 
                message transmitted or delivered to a recipient at an 
                electronic mail address that has been reassigned to the 
                recipient from a previous user, such recipient shall be 
                considered for purposes of this Act to have consented 
                to receipt of such messages at such address to the same 
                extent as the previous authorized user or users of such 
                address unless the sender of the message has actual 
                knowledge that the address has been so reassigned or 
of a request under subclause (A)(ii) by the recipient.
                    (D) Timing.--Consent shall be considered to be 
                given, for purposes of this Act, at the time such 
                consent is received by the sender.
            (5) Covered computer.--The term ``covered computer'' means 
        a computer that is used in interstate or foreign commerce or 
        communication, including a computer located outside the United 
        States that is used in a manner that affects interstate or 
        foreign commerce or communication of the United States.
            (6) 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.
            (7) Electronic mail address.--The term ``electronic mail 
        address'' means a destination, commonly expressed as a string 
        of characters, which includes a unique user name or mailbox 
        (commonly referred to as the ``local part'') and may also 
        include a reference to an Internet domain (commonly referred to 
        as the ``domain part''), to which an electronic mail message 
        can be transmitted or delivered.
            (8) Electronic mail message.--The term ``electronic mail 
        message'' means a message as transmitted to an electronic mail 
        address.
            (9) 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.
            (10) Initiate.--The term ``initiate'', when used with 
        respect to an 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 note).
            (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) 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 transmitted 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 transmitted 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 transmitted or delivered to that 
        address before it was reassigned.
            (14) 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 identified 
        recipients or provided the recipient addresses.
            (15) 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, or 
        such person's successor in interest.
            (16) Unsolicited commercial electronic mail message.--The 
        term ``unsolicited commercial electronic mail message'' means 
        any commercial electronic mail message that is transmitted to a 
        recipient without the recipient's prior consent.

SEC. 305. EFFECTIVE DATE.

     Titles I and III of this Act, and the amendments made by such 
titles, shall take effect 120 days after the date of the enactment of 
this Act.
                                 <all>