[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.
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