[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1293 Reported in Senate (RS)]

                                                       Calendar No. 288
108th CONGRESS
  1st Session
                                S. 1293

      To criminalize the sending of predatory and abusive e-mail.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 19, 2003

  Mr. Hatch (for himself, Mr. Leahy, Mr. Schumer, Mr. Grassley, Mrs. 
 Feinstein, Mr. DeWine, Mr. Edwards, Mr. Wyden, Mr. Burns, Mr. Pryor, 
 Mr. Miller, and Mr. Nelson of Florida) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

                           September 25, 2003

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

_______________________________________________________________________

                                 A BILL


 
      To criminalize the sending of predatory and abusive e-mail.

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

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

<DELETED>    This Act may be cited as the ``Criminal Spam Act of 
2003''.</DELETED>

<DELETED>SEC. 2. PROHIBITION AGAINST PREDATORY AND ABUSIVE COMMERCIAL 
              E-MAIL.</DELETED>

<DELETED>    (a) Offense.--</DELETED>
        <DELETED>    (1) In general.--Chapter 47 of title 18, United 
        States Code, is amended by adding at the end the following new 
        section:</DELETED>
<DELETED>``Sec. 1037. Fraud and related activity in connection with 
              electronic mail</DELETED>
<DELETED>    ``(a) In General.--Whoever, in or affecting interstate or 
foreign commerce, knowingly--</DELETED>
        <DELETED>    ``(1) accesses a protected computer without 
        authorization, and intentionally initiates the transmission of 
        multiple commercial electronic mail messages from or through 
        such computer;</DELETED>
        <DELETED>    ``(2) uses a protected computer to relay or 
        retransmit multiple commercial electronic mail messages, with 
        the intent to deceive or mislead recipients, or any Internet 
        access service, as to the origin of such messages;</DELETED>
        <DELETED>    ``(3) falsifies header information in multiple 
        commercial electronic mail messages and intentionally initiates 
        the transmission of such messages; or</DELETED>
        <DELETED>    ``(4) registers, using information that falsifies 
        the identity of the actual registrant, for 5 or more electronic 
        mail accounts or online user accounts or 2 or more domain 
        names, and intentionally initiates the transmission of multiple 
        commercial electronic mail messages from such accounts or 
        domain names;</DELETED>
<DELETED>or conspires to do so, shall be punished as provided in 
subsection (b).</DELETED>
<DELETED>    ``(b) Penalties.--The punishment for an offense under 
subsection (a) is--</DELETED>
        <DELETED>    ``(1) a fine under this title, imprisonment for 
        not more than 5 years, or both, if--</DELETED>
                <DELETED>    ``(A) the offense is committed in 
                furtherance of any felony under the laws of the United 
                States or of any State; or</DELETED>
                <DELETED>    ``(B) the defendant has previously been 
                convicted under this section or section 1030, or under 
                the law of any State for conduct involving the 
                transmission of multiple commercial electronic mail 
                messages or unauthorized access to a computer 
                system;</DELETED>
        <DELETED>    ``(2) a fine under this title, imprisonment for 
        not more than 3 years, or both, if--</DELETED>
                <DELETED>    ``(A) the offense is an offense under 
                subsection (a)(1);</DELETED>
                <DELETED>    ``(B) the offense is an offense under 
                subsection (a)(4) and involved 20 or more falsified 
                electronic mail or online user account registrations, 
                or 10 or more falsified domain name 
                registrations;</DELETED>
                <DELETED>    ``(C) the volume of electronic mail 
                messages transmitted in furtherance of the offense 
                exceeded 2,500 during any 24-hour period, 25,000 during 
                any 30-day period, or 250,000 during any 1-year 
                period;</DELETED>
                <DELETED>    ``(D) the offense caused loss to 1 or more 
                persons aggregating $5,000 or more in value during any 
                1-year period;</DELETED>
                <DELETED>    ``(E) as a result of the offense any 
                individual committing the offense obtained anything of 
                value aggregating $5,000 or more during any 1-year 
                period; or</DELETED>
                <DELETED>    ``(F) the offense was undertaken by the 
                defendant in concert with 3 or more other persons with 
                respect to whom the defendant occupied a position of 
                organizer or leader; and</DELETED>
        <DELETED>    ``(3) a fine under this title or imprisonment for 
        not more than 1 year, or both, in any other case.</DELETED>
<DELETED>    ``(c) Forfeiture.--A person who is convicted of an offense 
under this section shall forfeit to the United States such person's 
interest in--</DELETED>
        <DELETED>    ``(1) any property, real or personal, constituting 
        or traceable to gross profits or other proceeds obtained from 
        such offense; and</DELETED>
        <DELETED>    ``(2) any equipment, software, or other technology 
        used or intended to be used to commit or to promote the 
        commission of such offense.</DELETED>
<DELETED>    ``(d) Civil Remedies.--</DELETED>
        <DELETED>    ``(1) In general.--The Attorney General, or any 
        person engaged in the business of providing an Internet access 
        service to the public aggrieved by reason of a violation of 
        subsection (a), may commence a civil action against the 
        violator in any appropriate United States District Court for 
        the relief set forth in paragraphs (2) and (3). No action may 
        be brought under this subsection unless such action is begun 
        within 2 years of the date of the act which is the basis for 
        the action.</DELETED>
        <DELETED>    ``(2) Attorney general action.--In an action by 
        the Attorney General under paragraph (1), the court may award 
        appropriate relief, including temporary, preliminary, or 
        permanent injunctive relief. The court may also assess a civil 
        penalty in an amount not exceeding $25,000 per day of 
        violation, or not less than $2 or more than $8 per electronic 
        mail message initiated in violation of subsection (a), as the 
        court considers just.</DELETED>
        <DELETED>    ``(3) Other actions.--In any other action under 
        paragraph (1), the court may award appropriate relief, 
        including temporary, preliminary, or permanent injunctive 
        relief, and damages in an amount equal to the greater of--
        </DELETED>
                <DELETED>    ``(A) the actual damages suffered by the 
                Internet access service as a result of the violation, 
                and any receipts of the violator that are attributable 
                to the violation and are not taken into account in 
                computing actual damages; or</DELETED>
                <DELETED>    ``(B) statutory damages in the sum of 
                $25,000 per day of violation, or not less than $2 or 
                more than $8 per electronic mail message initiated in 
                violation of subsection (a), as the court considers 
                just.</DELETED>
<DELETED>    ``(e) Definitions.--In this section:</DELETED>
        <DELETED>    ``(1) Commercial electronic mail message.--The 
        term `commercial electronic mail message' means any electronic 
        mail message the primary purpose of which is the commercial 
        advertisement or promotion of a commercial product or service 
        (including content on an Internet website or online site 
        operated for a commercial purpose).</DELETED>
        <DELETED>    ``(2) Computer and protected computer.--The terms 
        `computer' and `protected computer' have the meaning given 
        those terms in section 1030(e) of this title.</DELETED>
        <DELETED>    ``(3) 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, and that is included 
        in an electronic mail message.</DELETED>
        <DELETED>    ``(4) Header information.--The term `header 
        information' means the source, destination, routing 
        information, or information authenticating the sender, 
        associated with an electronic mail message, including but not 
        limited to the originating domain name, originating electronic 
        mail address, information regarding any part of the route that 
        an electronic mail message travels or appears to travel on the 
        Internet or on an online service, or other authenticating 
        information.</DELETED>
        <DELETED>    ``(5) Initiate.--The term `initiate' means to 
        originate an electronic mail message or to procure the 
        origination of such message, regardless of whether the message 
        reaches its intended recipients, and does not include the 
        actions of an Internet access service used by another person 
        for the transmission of an electronic mail message for which 
        another person has provided and selected the recipient 
        electronic mail addresses.</DELETED>
        <DELETED>    ``(6) Internet access service.--The term `Internet 
        access service' has the meaning given that term in section 
        231(e)(4) of the Communications Act of 1934 (47 U.S.C. 
        231(e)(4)).</DELETED>
        <DELETED>    ``(7) Loss.--The term `loss' has the meaning given 
        that term in section 1030(e) of this title.</DELETED>
        <DELETED>    ``(8) Message.--The term `message' means each 
        electronic mail message addressed to a discrete 
        addressee.</DELETED>
        <DELETED>    ``(9) Multiple.--The term `multiple' means more 
        than 100 electronic mail messages during a 24-hour period, more 
        than 1,000 electronic mail messages during a 30-day period, or 
        more than 10,000 electronic mail messages during a 1-year 
        period.''.</DELETED>
        <DELETED>    (2) Conforming amendment.--The chapter analysis 
        for chapter 47 of title 18, United States Code, is amended by 
        adding at the end the following:</DELETED>

<DELETED>``Sec.
<DELETED>``1037. Fraud and related activity in connection with 
                            electronic mail.''.
<DELETED>    (b) United States Sentencing Commission.--</DELETED>
        <DELETED>    (1) Directive.--Pursuant to its authority under 
        section 994(p) of title 28, United States Code, and in 
        accordance with this section, the United States Sentencing 
        Commission shall review and, as appropriate, amend the 
        sentencing guidelines and policy statements to provide 
        appropriate penalties for violations of section 1037 of title 
        18, United States Code, as added by this section.</DELETED>
        <DELETED>    (2) Requirements.--In carrying out this 
        subsection, the Sentencing Commission shall consider providing 
        sentencing enhancements for those convicted under section 1037 
        of title 18, United States Code, who--</DELETED>
                <DELETED>    (A) obtained electronic mail addresses 
                through improper means, including--</DELETED>
                        <DELETED>    (i) harvesting electronic mail 
                        addresses of the users of a website, 
                        proprietary service, or other online public 
                        forum operated by another person, without the 
                        authorization of such person; and</DELETED>
                        <DELETED>    (ii) randomly generating 
                        electronic mail addresses by computer; 
                        or</DELETED>
                <DELETED>    (B) knew that the commercial electronic 
                mail messages involved in the offense contained or 
                advertised an Internet domain for which the registrant 
                of the domain had provided false registration 
                information.</DELETED>

<DELETED>SEC. 3. REPORT AND SENSE OF CONGRESS REGARDING INTERNATIONAL 
              SPAM.</DELETED>

<DELETED>    (a) Findings.--Congress finds the following:</DELETED>
        <DELETED>    (1) The Internet is a global communications 
        medium.</DELETED>
        <DELETED>    (2) Commercial e-mail sent in violation of this 
        Act can be sent from virtually anywhere in the world.</DELETED>
        <DELETED>    (3) As domestic deterrence and enforcement against 
        predatory and abusive commercial e-mail improves, there is a 
        risk that predatory and abusive spammers will move their 
        activities abroad and spam into the United States.</DELETED>
        <DELETED>    (4) As with other forms of cyber-crime, 
        international cooperation of law enforcement officials is 
        essential to combat predatory and abusive spam.</DELETED>
<DELETED>    (b) Report.--The Department of Justice and the Department 
of State shall report to Congress within 18 months of the date of 
enactment of this Act regarding the status of their efforts to achieve 
international cooperation in the investigation and prosecution of 
spammers who engage in conduct that violates this Act, including the 
jurisdictions involved and the outcomes of any prosecutions, and any 
recommendations for addressing predatory and abusive spam sent to the 
United States from other countries.</DELETED>
<DELETED>    (c) Sense of Congress.--It is the sense of Congress that 
the Department of Justice and the Department of State, as part of their 
efforts to improve investigation and prosecution of international 
cyber-crime, should work through international fora for the cooperation 
of other countries in investigating and prosecuting predatory and 
abusive spammers who engage in conduct that violates this 
Act.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Criminal Spam Act of 2003''.

SEC. 2. PROHIBITION AGAINST PREDATORY AND ABUSIVE COMMERCIAL E-MAIL.

    (a) Offense.--
            (1) In general.--Chapter 47 of title 18, United States 
        Code, is amended by adding at the end the following new 
        section:
``Sec. 1037. Fraud and related activity in connection with electronic 
              mail
    ``(a) In General.--Whoever, in or affecting interstate or foreign 
commerce, knowingly--
            ``(1) accesses a protected computer without authorization, 
        and intentionally initiates the transmission of multiple 
        commercial electronic mail messages from or through such 
        computer;
            ``(2) uses a protected computer to relay or retransmit 
        multiple commercial electronic mail messages, with the intent 
        to deceive or mislead recipients, or any Internet access 
        service, as to the origin of such messages;
            ``(3) falsifies header information in multiple commercial 
        electronic mail messages and intentionally initiates the 
        transmission of such messages;
            ``(4) registers, using information that falsifies the 
        identity of the actual registrant, for 5 or more electronic 
        mail accounts or online user accounts or 2 or more domain 
        names, and intentionally initiates the transmission of multiple 
        commercial electronic mail messages from any combination of 
        such accounts or domain names; or
            ``(5) falsely represents the right to use 5 or more 
        Internet protocol addresses, and intentionally initiates the 
        transmission of multiple commercial electronic mail messages 
        from such addresses;
or conspires to do so, shall be punished as provided in subsection (b).
    ``(b) Penalties.--The punishment for an offense under subsection 
(a) is--
            ``(1) a fine under this title, imprisonment for not more 
        than 5 years, or both, if--
                    ``(A) the offense is committed in furtherance of 
                any felony under the laws of the United States or of 
                any State; or
                    ``(B) the defendant has previously been convicted 
                under this section or section 1030, or under the law of 
                any State for conduct involving the transmission of 
                multiple commercial electronic mail messages or 
                unauthorized access to a computer system;
            ``(2) a fine under this title, imprisonment for not more 
        than 3 years, or both, if--
                    ``(A) the offense is an offense under subsection 
                (a)(1);
                    ``(B) the offense is an offense under subsection 
                (a)(4) and involved 20 or more falsified electronic 
                mail or online user account registrations, or 10 or 
                more falsified domain name registrations;
                    ``(C) the volume of electronic mail messages 
                transmitted in furtherance of the offense exceeded 
                2,500 during any 24-hour period, 25,000 during any 30-
                day period, or 250,000 during any 1-year period;
                    ``(D) the offense caused loss to 1 or more persons 
                aggregating $5,000 or more in value during any 1-year 
                period;
                    ``(E) as a result of the offense any individual 
                committing the offense obtained anything of value 
                aggregating $5,000 or more during any 1-year period; or
                    ``(F) the offense was undertaken by the defendant 
                in concert with 3 or more other persons with respect to 
                whom the defendant occupied a position of organizer or 
                leader; and
            ``(3) a fine under this title or imprisonment for not more 
        than 1 year, or both, in any other case.
    ``(c) Forfeiture.--
            ``(1) In general.--The court, in imposing sentence on a 
        person who is convicted of an offense under this section, shall 
        order that the defendant forfeit to the United States--
                    ``(A) any property, real or personal, constituting 
                or traceable to gross proceeds obtained from such 
                offense; and
                    ``(B) any equipment, software, or other technology 
                used or intended to be used to commit or to facilitate 
                the commission of such offense.
            ``(2) Procedures.--The procedures set forth in section 413 
        of the Controlled Substances Act (21 U.S.C. 853), other than 
        subsection (d) of that section, and in Rule 32.2 of the Federal 
        Rules of Criminal Procedure, shall apply to all stages of a 
        criminal forfeiture proceeding under this section.
    ``(d) Civil Remedies.--
            ``(1) In general.--The Attorney General, or any person 
        engaged in the business of providing an Internet access service 
        to the public aggrieved by reason of a violation of subsection 
        (a), may commence a civil action against the violator in any 
        appropriate United States District Court for the relief set 
        forth in paragraphs (2) and (3). No action may be brought under 
        this subsection unless such action is begun within 2 years of 
        the date of the act which is the basis for the action.
            ``(2) Attorney general action.--In an action by the 
        Attorney General under paragraph (1), the court may award 
        appropriate relief, including temporary, preliminary, or 
        permanent injunctive relief. The court may also assess a civil 
        penalty in an amount not exceeding $25,000 per day of 
        violation, or not less than $2 or more than $8 per electronic 
        mail message initiated in violation of subsection (a), as the 
        court considers just.
            ``(3) Other actions.--In any other action under paragraph 
        (1), the court may award appropriate relief, including 
        temporary, preliminary, or permanent injunctive relief, and 
        damages in an amount equal to the greater of--
                    ``(A) the actual damages suffered by the Internet 
                access service as a result of the violation, and any 
                receipts of the violator that are attributable to the 
                violation and are not taken into account in computing 
                actual damages; or
                    ``(B) statutory damages in the sum of $25,000 per 
                day of violation, or not less than $2 or more than $8 
                per electronic mail message initiated in violation of 
subsection (a), as the court considers just.
    ``(e) Definitions.--In this section:
            ``(1) Commercial electronic mail message.--The term 
        `commercial electronic mail message' means any electronic mail 
        message the primary purpose of which is the commercial 
        advertisement or promotion of a commercial product or service 
        (including content on an Internet website or online site 
        operated for a commercial purpose).
            ``(2) Computer and protected computer.--The terms 
        `computer' and `protected computer' have the meaning given 
        those terms in section 1030(e) of this title.
            ``(3) 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, and that is included in an 
        electronic mail message.
            ``(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, the originating electronic mail address, and technical 
        information that authenticates the sender of an electronic mail 
        message for network security or network management purposes.
            ``(5) Initiate.--The term `initiate' means to originate an 
        electronic mail message or to procure the origination of such 
        message, regardless of whether the message reaches its intended 
        recipients, and does not include the actions of an Internet 
        access service used by another person for the transmission of 
        an electronic mail message for which another person has 
        provided and selected the recipient electronic mail addresses.
            ``(6) 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)).
            ``(7) Loss.--The term `loss' has the meaning given that 
        term in section 1030(e) of this title.
            ``(8) Message.--The term `message' means each electronic 
        mail message addressed to a discrete addressee.
            ``(9) Multiple.--The term `multiple' means more than 100 
        electronic mail messages during a 24-hour period, more than 
        1,000 electronic mail messages during a 30-day period, or more 
        than 10,000 electronic mail messages during a 1-year period.''.
            (2) Conforming amendment.--The chapter analysis for chapter 
        47 of title 18, United States Code, is amended by adding at the 
        end the following:

``Sec.
``1037. Fraud and related activity in connection with electronic 
                            mail.''.
    (b) United States Sentencing Commission.--
            (1) Directive.--Pursuant to its authority under section 
        994(p) of title 28, United States Code, and in accordance with 
        this section, the United States Sentencing Commission shall 
        review and, as appropriate, amend the sentencing guidelines and 
        policy statements to provide appropriate penalties for 
        violations of section 1037 of title 18, United States Code, as 
        added by this section.
            (2) Requirements.--In carrying out this subsection, the 
        Sentencing Commission shall consider providing sentencing 
        enhancements for those convicted under section 1037 of title 
        18, United States Code, who--
                    (A) obtained electronic mail addresses through 
                improper means, including--
                            (i) harvesting electronic mail addresses of 
                        the users of a website, proprietary service, or 
                        other online public forum operated by another 
                        person, without the authorization of such 
                        person; and
                            (ii) randomly generating electronic mail 
                        addresses by computer; or
                    (B) knew that the commercial electronic mail 
                messages involved in the offense contained or 
                advertised an Internet domain for which the registrant 
                of the domain had provided false registration 
                information.

SEC. 3. REPORT AND SENSE OF CONGRESS REGARDING INTERNATIONAL SPAM.

    (a) Findings.--Congress finds the following:
            (1) The Internet is a global communications medium.
            (2) Commercial e-mail sent in violation of this Act can be 
        sent from virtually anywhere in the world.
            (3) As domestic deterrence and enforcement against 
        predatory and abusive commercial e-mail improves, there is a 
        risk that predatory and abusive spammers will move their 
        activities abroad and spam into the United States.
            (4) As with other forms of cyber-crime, international 
        cooperation of law enforcement officials is essential to combat 
        predatory and abusive spam.
    (b) Report.--The Department of Justice and the Department of State 
shall report to Congress within 18 months of the date of enactment of 
this Act regarding the status of their efforts to achieve international 
cooperation in the investigation and prosecution of spammers who engage 
in conduct that violates this Act, including the jurisdictions involved 
and the outcomes of any prosecutions, and any recommendations for 
addressing predatory and abusive spam sent to the United States from 
other countries.
    (c) Sense of Congress.--It is the sense of Congress that the 
Department of Justice and the Department of State, as part of their 
efforts to improve investigation and prosecution of international 
cyber-crime, should work through international fora for the cooperation 
of other countries in investigating and prosecuting predatory and 
abusive spammers who engage in conduct that violates this Act.




                                                       Calendar No. 288

108th CONGRESS

  1st Session

                                S. 1293

_______________________________________________________________________

                                 A BILL

      To criminalize the sending of predatory and abusive e-mail.

_______________________________________________________________________

                           September 25, 2003

                       Reported with an amendment