[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 877 Engrossed Amendment Senate (EAS)]
In the Senate of the United States,
November 25, 2003.
Resolved, That the Senate agree to the amendment of the House of
Representatives to the bill (S. 877) entitled ``An Act to regulate
interstate commerce by imposing limitations and penalties on the
transmission of unsolicited commercial electronic mail via the
Internet.'' with the following
SENATE AMENDMENT TO HOUSE AMENDMENT:
In lieu of the matter proposed to be inserted by the House
amendment to the text of the bill, insert:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Controlling the Assault of Non-
Solicited Pornography and Marketing Act of 2003'', or the ``CAN-SPAM
Act of 2003''.
SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.
(a) Findings.--The Congress finds the following:
(1) Electronic mail has become an extremely important and
popular means of communication, relied on by millions of
Americans on a daily basis for personal and commercial
purposes. Its low cost and global reach make it extremely
convenient and efficient, and offer unique opportunities for
the development and growth of frictionless commerce.
(2) The convenience and efficiency of electronic mail are
threatened by the extremely rapid growth in the volume of
unsolicited commercial electronic mail. Unsolicited commercial
electronic mail is currently estimated to account for over half
of all electronic mail traffic, up from an estimated 7 percent
in 2001, and the volume continues to rise. Most of these
messages are fraudulent or deceptive in one or more respects.
(3) The receipt of unsolicited commercial electronic mail
may result in costs to recipients who cannot refuse to accept
such mail and who incur costs for the storage of such mail, or
for the time spent accessing, reviewing, and discarding such
mail, or for both.
(4) The receipt of a large number of unwanted messages also
decreases the convenience of electronic mail and creates a risk
that wanted electronic mail messages, both commercial and
noncommercial, will be lost, overlooked, or discarded amidst
the larger volume of unwanted messages, thus reducing the
reliability and usefulness of electronic mail to the recipient.
(5) Some commercial electronic mail contains material that
many recipients may consider vulgar or pornographic in nature.
(6) The growth in unsolicited commercial electronic mail
imposes significant monetary costs on providers of Internet
access services, businesses, and educational and nonprofit
institutions that carry and receive such mail, as there is a
finite volume of mail that such providers, businesses, and
institutions can handle without further investment in
infrastructure.
(7) Many senders of unsolicited commercial electronic mail
purposefully disguise the source of such mail.
(8) Many senders of unsolicited commercial electronic mail
purposefully include misleading information in the messages'
subject lines in order to induce the recipients to view the
messages.
(9) While some senders of commercial electronic mail
messages provide simple and reliable ways for recipients to
reject (or ``opt-out'' of) receipt of commercial electronic
mail from such senders in the future, other senders provide no
such ``opt-out'' mechanism, or refuse to honor the requests of
recipients not to receive electronic mail from such senders in
the future, or both.
(10) Many senders of bulk unsolicited commercial electronic
mail use computer programs to gather large numbers of
electronic mail addresses on an automated basis from Internet
websites or online services where users must post their
addresses in order to make full use of the website or service.
(11) Many States have enacted legislation intended to
regulate or reduce unsolicited commercial electronic mail, but
these statutes impose different standards and requirements. As
a result, they do not appear to have been successful in
addressing the problems associated with unsolicited commercial
electronic mail, in part because, since an electronic mail
address does not specify a geographic location, it can be
extremely difficult for law-abiding businesses to know with
which of these disparate statutes they are required to comply.
(12) The problems associated with the rapid growth and
abuse of unsolicited commercial electronic mail cannot be
solved by Federal legislation alone. The development and
adoption of technological approaches and the pursuit of
cooperative efforts with other countries will be necessary as
well.
(b) Congressional Determination of Public Policy.--On the basis of
the findings in subsection (a), the Congress determines that--
(1) there is a substantial government interest in
regulation of commercial electronic mail on a nationwide basis;
(2) senders of commercial electronic mail should not
mislead recipients as to the source or content of such mail;
and
(3) recipients of commercial electronic mail have a right
to decline to receive additional commercial electronic mail
from the same source.
SEC. 3. DEFINITIONS.
In this Act:
(1) Affirmative consent.--The term ``affirmative consent'',
when used with respect to a commercial electronic mail message,
means that--
(A) the recipient expressly consented to receive
the message, either in response to a clear and
conspicuous request for such consent or at the
recipient's own initiative; and
(B) if the message is from a party other than the
party to which the recipient communicated such consent,
the recipient was given clear and conspicuous notice at
the time the consent was communicated that the
recipient's electronic mail address could be
transferred to such other party for the purpose of
initiating commercial electronic mail messages.
(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 commercial product or
service (including content on an Internet website
operated for a commercial purpose).
(B) Transactional or relationship messages.--The
term ``commercial electronic mail message'' does not
include a transactional or relationship message.
(C) Regulations regarding primary purpose.--Not
later than 12 months after the date of the enactment of
this Act, the Commission shall issue regulations
pursuant to section 13 defining the relevant criteria
to facilitate the determination of the primary purpose
of an electronic mail message.
(D) 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, cause such message to be
treated as a commercial electronic mail message for
purposes of this Act if the contents or circumstances
of the message indicate a primary purpose other than
commercial advertisement or promotion of a commercial
product or service.
(3) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(4) 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.
(5) Electronic mail address.--The term ``electronic mail
address'' means a destination, commonly expressed as a string
of characters, consisting of a unique user name or mailbox
(commonly referred to as the ``local part'') and a reference to
an Internet domain (commonly referred to as the ``domain
part''), whether or not displayed, to which an electronic mail
message can be sent or delivered.
(6) Electronic mail message.--The term ``electronic mail
message'' means a message sent to a unique electronic mail
address.
(7) FTC act.--The term ``FTC Act'' means the Federal Trade
Commission Act (15 U.S.C. 41 et seq.).
(8) 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, and any other
information that appears in the line identifying, or purporting
to identify, a person initiating the message.
(9) Initiate.--The term ``initiate'', when used with
respect to a commercial electronic mail message, means to
originate or transmit such message or to procure the
origination or transmission of such message, but shall not
include actions that constitute routine conveyance of such
message. For purposes of this paragraph, more than one person
may be considered to have initiated a message.
(10) Internet.--The term ``Internet'' has the meaning given
that term in the Internet Tax Freedom Act (47 U.S.C. 151 nt).
(11) 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)).
(12) Procure.--The term ``procure'', when used with respect
to the initiation of a commercial electronic mail message,
means intentionally to pay or provide other consideration to,
or induce, another person to initiate such a message on one's
behalf.
(13) Protected computer.--The term ``protected computer''
has the meaning given that term in section 1030(e)(2)(B) of
title 18, United States Code.
(14) 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 sent or delivered. If a recipient of a commercial
electronic mail message has one or more electronic mail
addresses in addition to the address to which the message was
sent 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 sent or delivered to that address before it was
reassigned.
(15) 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
the recipients or provided the recipient addresses.
(16) Sender.--
(A) In general.--Except as provided in subparagraph
(B), 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.
(B) Separate lines of business or divisions.--If an
entity operates through separate lines of business or
divisions and holds itself out to the recipient
throughout the message as that particular line of
business or division rather than as the entity of which
such line of business or division is a part, then the
line of business or the division shall be treated as
the sender of such message for purposes of this Act.
(17) Transactional or relationship message.--
(A) In general.--The term ``transactional or
relationship message'' means an electronic mail message
the primary purpose of which is--
(i) to facilitate, complete, or confirm a
commercial transaction that the recipient has
previously agreed to enter into with the
sender;
(ii) to provide warranty information,
product recall information, or safety or
security information with respect to a
commercial product or service used or purchased
by the recipient;
(iii) to provide--
(I) notification concerning a
change in the terms or features of;
(II) notification of a change in
the recipient's standing or status with
respect to; or
(III) at regular periodic
intervals, account balance information
or other type of account statement with
respect to,
a subscription, membership, account, loan, or
comparable ongoing commercial relationship
involving the ongoing purchase or use by the
recipient of products or services offered by
the sender;
(iv) to provide information directly
related to an employment relationship or
related benefit plan in which the recipient is
currently involved, participating, or enrolled;
or
(v) to deliver goods or services, including
product updates or upgrades, that the recipient
is entitled to receive under the terms of a
transaction that the recipient has previously
agreed to enter into with the sender.
(B) Modification of definition.--The Commission by
regulation pursuant to section 13 may modify the
definition in subparagraph (A) to expand or contract
the categories of messages that are treated as
transactional or relationship messages for purposes of
this Act to the extent that such modification is
necessary to accommodate changes in electronic mail
technology or practices and accomplish the purposes of
this Act.
SEC. 4. 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) materially falsifies header information in multiple
commercial electronic mail messages and intentionally initiates
the transmission of such messages,
``(4) registers, using information that materially
falsifies the identity of the actual registrant, for five or
more electronic mail accounts or online user accounts or two 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 oneself to be the registrant or
the legitimate successor in interest to the registrant of 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 one 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) Definitions.--In this section:
``(1) Loss.--The term `loss' has the meaning given that
term in section 1030(e) of this title.
``(2) Materially.--For purposes of paragraphs (3) and (4)
of subsection (a), header information or registration
information is materially falsified if it is altered or
concealed in a manner that would impair the ability of a
recipient of the message, an Internet access service processing
the message on behalf of a recipient, a person alleging a
violation of this section, or a law enforcement agency to
identify, locate, or respond to a person who initiated the
electronic mail message or to investigate the alleged
violation.
``(3) 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.
``(4) Other terms.--Any other term has the meaning given
that term by section 3 of the CAN-SPAM Act of 2003.''.
(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, and other offenses that may be
facilitated by the sending of large quantities of unsolicited
electronic mail.
(2) Requirements.--In carrying out this subsection, the
Sentencing Commission shall consider providing sentencing
enhancements for--
(A) those convicted under section 1037 of title 18,
United States Code, who--
(i) 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
(ii) 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; and
(B) those convicted of other offenses, including
offenses involving fraud, identity theft, obscenity,
child pornography, and the sexual exploitation of
children, if such offenses involved the sending of
large quantities of electronic mail.
(c) Sense of Congress.--It is the sense of Congress that--
(1) Spam has become the method of choice for those who
distribute pornography, perpetrate fraudulent schemes, and
introduce viruses, worms, and Trojan horses into personal and
business computer systems; and
(2) the Department of Justice should use all existing law
enforcement tools to investigate and prosecute those who send
bulk commercial e-mail to facilitate the commission of Federal
crimes, including the tools contained in chapters 47 and 63 of
title 18, United States Code (relating to fraud and false
statements); chapter 71 of title 18, United States Code
(relating to obscenity); chapter 110 of title 18, United States
Code (relating to the sexual exploitation of children); and
chapter 95 of title 18, United States Code (relating to
racketeering), as appropriate.
SEC. 5. OTHER PROTECTIONS FOR USERS OF COMMERCIAL ELECTRONIC MAIL.
(a) Requirements for Transmission of Messages.--
(1) Prohibition of false or misleading transmission
information.--It is unlawful for any person to initiate the
transmission, to a protected computer, of a commercial
electronic mail message, or a transactional or relationship
message, that contains, or is accompanied by, header
information that is materially false or materially misleading.
For purposes of this paragraph--
(A) header information that is technically accurate
but includes an originating electronic mail address,
domain name, or Internet Protocol address the access to
which for purposes of initiating the message was
obtained by means of false or fraudulent pretenses or
representations shall be considered materially
misleading;
(B) a ``from'' line (the line identifying or
purporting to identify a person initiating the message)
that accurately identifies any person who initiated the
message shall not be considered materially false or
materially misleading; and
(C) header information shall be considered
materially misleading if it fails to identify
accurately a protected computer used to initiate the
message because the person initiating the message
knowingly uses another protected computer to relay or
retransmit the message for purposes of disguising its
origin.
(2) Prohibition of deceptive subject headings.--It is
unlawful for any person to initiate the transmission to a
protected computer of a commercial electronic mail message if
such person has actual knowledge, or knowledge fairly implied
on the basis of objective circumstances, that a subject heading
of the message would be likely to mislead a recipient, acting
reasonably under the circumstances, about a material fact
regarding the contents or subject matter of the message
(consistent with the criteria used in enforcement of section 5
of the Federal Trade Commission Act (15 U.S.C. 45)).
(3) Inclusion of return address or comparable mechanism in
commercial electronic mail.--
(A) In general.--It is unlawful for any person to
initiate the transmission to a protected computer of a
commercial electronic mail message that does not
contain 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 in the message, a reply
electronic mail message or other form of
Internet-based communication requesting not to
receive future 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 no less than 30
days after the transmission of the original
message.
(B) More detailed options possible.--The person
initiating a commercial electronic mail message may
comply with subparagraph (A)(i) by providing the
recipient a list or menu from which the recipient may
choose the specific types of commercial electronic mail
messages the recipient wants to receive or does not
want to receive from the sender, if the list or menu
includes an option under which the recipient may choose
not to receive any commercial electronic mail messages
from the sender.
(C) Temporary inability to receive messages or
process requests.--A return electronic mail address or
other mechanism does not fail to satisfy the
requirements of subparagraph (A) if it is unexpectedly
and temporarily unable to receive messages or process
requests due to a technical problem beyond the control
of the sender if the problem is corrected within a
reasonable time period.
(4) Prohibition of transmission of commercial electronic
mail after objection.--
(A) In general.--If a recipient makes a request
using a mechanism provided pursuant to paragraph (3)
not to receive some or any commercial electronic mail
messages from such sender, then it is unlawful--
(i) for the sender to initiate the
transmission to the recipient, more than 10
business days after the receipt of such
request, of a commercial electronic mail
message that falls within the scope of the
request;
(ii) for any person acting on behalf of the
sender to initiate the transmission to the
recipient, more than 10 business days after the
receipt of such request, of a commercial
electronic mail message with actual knowledge,
or knowledge fairly implied on the basis of
objective circumstances, that such message
falls within the scope of the request;
(iii) for any person acting on behalf of
the sender to assist in initiating the
transmission to the recipient, through the
provision or selection of addresses to which
the message will be sent, of a commercial
electronic mail message with actual knowledge,
or knowledge fairly implied on the basis of
objective circumstances, that such message
would violate clause (i) or (ii); or
(iv) for the sender, or any other person
who knows that the recipient has made such a
request, to 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 other provision of
law.
(B) Subsequent affirmative consent.--A prohibition
in subparagraph (A) does not apply if there is
affirmative consent by the recipient subsequent to the
request under subparagraph (A).
(5) Inclusion of identifier, opt-out, and physical address
in commercial electronic mail.--
(A) It is unlawful for any person to initiate the
transmission of any commercial electronic mail message
to a protected computer unless the message provides--
(i) clear and conspicuous identification
that the message is an advertisement or
solicitation;
(ii) clear and conspicuous notice of the
opportunity under paragraph (3) to decline to
receive further commercial electronic mail
messages from the sender; and
(iii) a valid physical postal address of
the sender.
(B) Subparagraph (A)(i) does not apply to the
transmission of a commercial electronic mail message if
the recipient has given prior affirmative consent to
receipt of the message.
(6) Materially.--For purposes of paragraph (1), the term
``materially'', when used with respect to false or misleading
header information, includes the alteration or concealment of
header information in a manner that would impair the ability of
an Internet access service processing the message on behalf of
a recipient, a person alleging a violation of this section, or
a law enforcement agency to identify, locate, or respond to a
person who initiated the electronic mail message or to
investigate the alleged violation, or the ability of a
recipient of the message to respond to a person who initiated
the electronic message.
(b) Aggravated Violations Relating to Commercial Electronic Mail.--
(1) Address harvesting and dictionary attacks.--
(A) In general.--It is unlawful for any person to
initiate the transmission, to a protected computer, of
a commercial electronic mail message that is unlawful
under subsection (a), or to assist in the origination
of such message through the provision or selection of
addresses to which the message will be transmitted, if
such person had actual knowledge, or knowledge fairly
implied on the basis of objective circumstances, that--
(i) 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, and such
website or online service included, at the time
the address was obtained, a notice stating that
the operator of such website or online service
will not give, sell, or otherwise transfer
addresses maintained by such website or online
service to any other party for the purposes of
initiating, or enabling others to initiate,
electronic mail messages; or
(ii) the electronic mail address of the
recipient was obtained using an automated means
that generates possible electronic mail
addresses by combining names, letters, or
numbers into numerous permutations.
(B) Disclaimer.--Nothing in this paragraph creates
an ownership or proprietary interest in such electronic
mail addresses.
(2) Automated creation of multiple electronic mail
accounts.--It is unlawful for any person to use scripts or
other automated means to register for multiple electronic mail
accounts or online user accounts from which to transmit to a
protected computer, or enable another person to transmit to a
protected computer, a commercial electronic mail message that
is unlawful under subsection (a).
(3) Relay or retransmission through unauthorized access.--
It is unlawful for any person knowingly to relay or retransmit
a commercial electronic mail message that is unlawful under
subsection (a) from a protected computer or computer network
that such person has accessed without authorization.
(c) Supplementary Rulemaking Authority.--The Commission shall by
regulation, pursuant to section 13--
(1) modify the 10-business-day period under subsection
(a)(4)(A) or subsection (a)(4)(B), or both, if the Commission
determines that a different period would be more reasonable
after taking into account--
(A) the purposes of subsection (a);
(B) the interests of recipients of commercial
electronic mail; and
(C) the burdens imposed on senders of lawful
commercial electronic mail; and
(2) specify additional activities or practices to which
subsection (b) applies if the Commission determines that those
activities or practices are contributing substantially to the
proliferation of commercial electronic mail messages that are
unlawful under subsection (a).
(d) Requirement To Place Warning Labels on Commercial Electronic
Mail Containing Sexually Oriented Material.--
(1) In general.--No person may initiate in or affecting
interstate commerce the transmission, to a protected computer,
of any commercial electronic mail message that includes
sexually oriented material and--
(A) fail to include in subject heading for the
electronic mail message the marks or notices prescribed
by the Commission under this subsection; or
(B) fail to provide that the matter in the message
that is initially viewable to the recipient, when the
message is opened by any recipient and absent any
further actions by the recipient, includes only--
(i) to the extent required or authorized
pursuant to paragraph (2), any such marks or
notices;
(ii) the information required to be
included in the message pursuant to subsection
(a)(5); and
(iii) instructions on how to access, or a
mechanism to access, the sexually oriented
material.
(2) Prior affirmative consent.--Paragraph (1) does not
apply to the transmission of an electronic mail message if the
recipient has given prior affirmative consent to receipt of the
message.
(3) Prescription of marks and notices.--Not later than 120
days after the date of the enactment of this Act, the
Commission in consultation with the Attorney General shall
prescribe clearly identifiable marks or notices to be included
in or associated with commercial electronic mail that contains
sexually oriented material, in order to inform the recipient of
that fact and to facilitate filtering of such electronic mail.
The Commission shall publish in the Federal Register and
provide notice to the public of the marks or notices prescribed
under this paragraph.
(4) Definition.--In this subsection, the term ``sexually
oriented material'' means any material that depicts sexually
explicit conduct (as that term is defined in section 2256 of
title 18, United States Code), unless the depiction constitutes
a small and insignificant part of the whole, the remainder of
which is not primarily devoted to sexual matters.
(5) Penalty.--Whoever knowingly violates paragraph (1)
shall be fined under title 18, United States Code, or
imprisoned not more than 5 years, or both.
SEC. 6. BUSINESSES KNOWINGLY PROMOTED BY ELECTRONIC MAIL WITH FALSE OR
MISLEADING TRANSMISSION INFORMATION.
(a) In General.--It is unlawful for a person to promote, or allow
the promotion of, that person's trade or business, or goods, products,
property, or services sold, offered for sale, leased or offered for
lease, or otherwise made available through that trade or business, in a
commercial electronic mail message the transmission of which is in
violation of section 5(a)(1) if that person--
(1) knows, or should have known in the ordinary course of
that person's trade or business, that the goods, products,
property, or services sold, offered for sale, leased or offered
for lease, or otherwise made available through that trade or
business were being promoted in such a message;
(2) received or expected to receive an economic benefit
from such promotion; and
(3) took no reasonable action--
(A) to prevent the transmission; or
(B) to detect the transmission and report it to the
Commission.
(b) Limited Enforcement Against Third Parties.--
(1) In general.--Except as provided in paragraph (2), a
person (hereinafter referred to as the ``third party'') that
provides goods, products, property, or services to another
person that violates subsection (a) shall not be held liable
for such violation.
(2) Exception.--Liability for a violation of subsection (a)
shall be imputed to a third party that provides goods,
products, property, or services to another person that violates
subsection (a) if that third party--
(A) owns, or has a greater than 50 percent
ownership or economic interest in, the trade or
business of the person that violated subsection (a); or
(B)(i) has actual knowledge that goods, products,
property, or services are promoted in a commercial
electronic mail message the transmission of which is in
violation of section 5(a)(1); and
(ii) receives, or expects to receive, an economic
benefit from such promotion.
(c) Exclusive Enforcement by FTC.--Subsections (f) and (g) of
section 7 do not apply to violations of this section.
(d) Savings Provision.--Except as provided in section 7(f)(8),
nothing in this section may be construed to limit or prevent any action
that may be taken under this Act with respect to any violation of any
other section of this Act.
SEC. 7. ENFORCEMENT GENERALLY.
(a) Violation Is Unfair or Deceptive Act or Practice.--Except as
provided in subsection (b), this Act shall be enforced by the
Commission as if the violation of this Act were an unfair or deceptive
act or practice proscribed under section 18(a)(1)(B) of the Federal
Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
(b) Enforcement by Certain Other Agencies.--Compliance with this
Act shall be enforced--
(1) under section 8 of the Federal Deposit Insurance Act
(12 U.S.C. 1818), in the case of--
(A) national banks, and Federal branches and
Federal agencies of foreign banks, by the Office of the
Comptroller of the Currency;
(B) member banks of the Federal Reserve System
(other than national banks), branches and agencies of
foreign banks (other than Federal branches, Federal
agencies, and insured State branches of foreign banks),
commercial lending companies owned or controlled by
foreign banks, organizations operating under section 25
or 25A of the Federal Reserve Act (12 U.S.C. 601 and
611), and bank holding companies, by the Board;
(C) banks insured by the Federal Deposit Insurance
Corporation (other than members of the Federal Reserve
System) insured State branches of foreign banks, by the
Board of Directors of the Federal Deposit Insurance
Corporation; and
(D) savings associations the deposits of which are
insured by the Federal Deposit Insurance Corporation,
by the Director of the Office of Thrift Supervision;
(2) under the Federal Credit Union Act (12 U.S.C. 1751 et
seq.) by the Board of the National Credit Union Administration
with respect to any Federally insured credit union;
(3) under the Securities Exchange Act of 1934 (15 U.S.C.
78a et seq.) by the Securities and Exchange Commission with
respect to any broker or dealer;
(4) under the Investment Company Act of 1940 (15 U.S.C.
80a-1 et seq.) by the Securities and Exchange Commission with
respect to investment companies;
(5) under the Investment Advisers Act of 1940 (15 U.S.C.
80b-1 et seq.) by the Securities and Exchange Commission with
respect to investment advisers registered under that Act;
(6) under State insurance law in the case of any person
engaged in providing insurance, by the applicable State
insurance authority of the State in which the person is
domiciled, subject to section 104 of the Gramm-Bliley-Leach Act
(15 U.S.C. 6701), except that in any State in which the State
insurance authority elects not to exercise this power, the
enforcement authority pursuant to this Act shall be exercised
by the Commission in accordance with subsection (a);
(7) under part A of subtitle VII of title 49, United States
Code, by the Secretary of Transportation with respect to any
air carrier or foreign air carrier subject to that part;
(8) under the Packers and Stockyards Act, 1921 (7 U.S.C.
181 et seq.) (except as provided in section 406 of that Act (7
U.S.C. 226, 227)), by the Secretary of Agriculture with respect
to any activities subject to that Act;
(9) under the Farm Credit Act of 1971 (12 U.S.C. 2001 et
seq.) by the Farm Credit Administration with respect to any
Federal land bank, Federal land bank association, Federal
intermediate credit bank, or production credit association; and
(10) under the Communications Act of 1934 (47 U.S.C. 151 et
seq.) by the Federal Communications Commission with respect to
any person subject to the provisions of that Act.
(c) Exercise of Certain Powers.--For the purpose of the exercise by
any agency referred to in subsection (b) of its powers under any Act
referred to in that subsection, a violation of this Act is deemed to be
a violation of a Federal Trade Commission trade regulation rule. In
addition to its powers under any provision of law specifically referred
to in subsection (b), each of the agencies referred to in that
subsection may exercise, for the purpose of enforcing compliance with
any requirement imposed under this Act, any other authority conferred
on it by law.
(d) Actions by the Commission.--The Commission shall prevent any
person from violating this Act in the same manner, by the same means,
and with the same jurisdiction, powers, and duties as though all
applicable terms and provisions of the Federal Trade Commission Act (15
U.S.C. 41 et seq.) were incorporated into and made a part of this Act.
Any entity that violates any provision of that subtitle is subject to
the penalties and entitled to the privileges and immunities provided in
the Federal Trade Commission Act in the same manner, by the same means,
and with the same jurisdiction, power, and duties as though all
applicable terms and provisions of the Federal Trade Commission Act
were incorporated into and made a part of that subtitle.
(e) Availability of Cease-and-Desist Orders and Injunctive Relief
Without Showing of Knowledge.--Notwithstanding any other provision of
this Act, in any proceeding or action pursuant to subsection (a), (b),
(c), or (d) of this section to enforce compliance, through an order to
cease and desist or an injunction, with section 5(a)(1)(C), section
5(a)(2), clause (ii), (iii), or (iv) of section 5(a)(4)(A), section
5(b)(1)(A), or section 5(b)(3), neither the Commission nor the Federal
Communications Commission shall be required to allege or prove the
state of mind required by such section or subparagraph.
(f) Enforcement by States.--
(1) Civil action.--In any case in which the attorney
general of a State, or an official or agency of a State, has
reason to believe that an interest of the residents of that
State has been or is threatened or adversely affected by any
person who violates paragraph (1) or (2) of section 5(a), who
violates section 5(d), or who engages in a pattern or practice
that violates paragraph (3), (4), or (5) of section 5(a), of
this Act, the attorney general, official, or agency of the
State, as parens patriae, may bring a civil action on behalf of
the residents of the State in a district court of the United
States of appropriate jurisdiction--
(A) to enjoin further violation of section 5 of
this Act by the defendant; or
(B) to obtain damages on behalf of residents of the
State, in an amount equal to the greater of--
(i) the actual monetary loss suffered by
such residents; or
(ii) the amount determined under paragraph
(3).
(2) Availability of injunctive relief without showing of
knowledge.--Notwithstanding any other provision of this Act, in
a civil action under paragraph (1)(A) of this subsection, the
attorney general, official, or agency of the State shall not be
required to allege or prove the state of mind required by
section 5(a)(1)(C), section 5(a)(2), clause (ii), (iii), or
(iv) of section 5(a)(4)(A), section 5(b)(1)(A), or section
5(b)(3).
(3) Statutory damages.--
(A) In general.--For purposes of paragraph
(1)(B)(ii), the amount determined under this paragraph
is the amount calculated by multiplying the number of
violations (with each separately addressed unlawful
message received by or addressed to such residents
treated as a separate violation) by up to $250.
(B) Limitation.--For any violation of section 5
(other than section 5(a)(1)), the amount determined
under subparagraph (A) may not exceed $2,000,000.
(C) Aggravated damages.--The court may increase a
damage award to an amount equal to not more than three
times the amount otherwise available under this
paragraph if--
(i) the court determines that the defendant
committed the violation willfully and
knowingly; or
(ii) the defendant's unlawful activity
included one or more of the aggravating
violations set forth in section 5(b).
(D) Reduction of damages.--In assessing damages
under subparagraph (A), the court may consider
whether--
(i) the defendant has established and
implemented, with due care, commercially
reasonable practices and procedures designed to
effectively prevent such violations; or
(ii) the violation occurred despite
commercially reasonable efforts to maintain
compliance the practices and procedures to
which reference is made in clause (i).
(4) Attorney fees.--In the case of any successful action
under paragraph (1), the court, in its discretion, may award
the costs of the action and reasonable attorney fees to the
State.
(5) Rights of federal regulators.--The State shall serve
prior written notice of any action under paragraph (1) upon the
Federal Trade Commission or the appropriate Federal regulator
determined under subsection (b) and provide the Commission or
appropriate Federal regulator with a copy of its complaint,
except in any case in which such prior notice is not feasible,
in which case the State shall serve such notice immediately
upon instituting such action. The Federal Trade Commission or
appropriate Federal regulator shall have the right--
(A) to intervene in the action;
(B) upon so intervening, to be heard on all matters
arising therein;
(C) to remove the action to the appropriate United
States district court; and
(D) to file petitions for appeal.
(6) Construction.--For purposes of bringing any civil
action under paragraph (1), nothing in this Act shall be
construed to prevent an attorney general of a State from
exercising the powers conferred on the attorney general by the
laws of that State to--
(A) conduct investigations;
(B) administer oaths or affirmations; or
(C) compel the attendance of witnesses or the
production of documentary and other evidence.
(7) Venue; service of process.--
(A) Venue.--Any action brought under paragraph (1)
may be brought in the district court of the United
States that meets applicable requirements relating to
venue under section 1391 of title 28, United States
Code.
(B) Service of process.--In an action brought under
paragraph (1), process may be served in any district in
which the defendant--
(i) is an inhabitant; or
(ii) maintains a physical place of
business.
(8) Limitation on state action while federal action is
pending.--If the Commission, or other appropriate Federal
agency under subsection (b), has instituted a civil action or
an administrative action for violation of this Act, no State
attorney general, or official or agency of a State, may bring
an action under this subsection during the pendency of that
action against any defendant named in the complaint of the
Commission or the other agency for any violation of this Act
alleged in the complaint.
(9) Requisite scienter for certain civil actions.--Except
as provided in section 5(a)(1)(C), section 5(a)(2), clause
(ii), (iii), or (iv) of section 5(a)(4)(A), section 5(b)(1)(A),
or section 5(b)(3), in a civil action brought by a State
attorney general, or an official or agency of a State, to
recover monetary damages for a violation of this Act, the court
shall not grant the relief sought unless the attorney general,
official, or agency establishes that the defendant acted with
actual knowledge, or knowledge fairly implied on the basis of
objective circumstances, of the act or omission that
constitutes the violation.
(g) Action by Provider of Internet Access Service.--
(1) Action authorized.--A provider of Internet access
service adversely affected by a violation of section 5(a)(1),
5(b), or 5(d), or a pattern or practice that violates paragraph
(2), (3), (4), or (5) of section 5(a), may bring a civil action
in any district court of the United States with jurisdiction
over the defendant--
(A) to enjoin further violation by the defendant;
or
(B) to recover damages in an amount equal to the
greater of--
(i) actual monetary loss incurred by the
provider of Internet access service as a result
of such violation; or
(ii) the amount determined under paragraph
(3).
(2) Special definition of ``procure''.--In any action
brought under paragraph (1), this Act shall be applied as if
the definition of the term ``procure'' in section 3(12)
contained, after ``behalf'' the words ``with actual knowledge,
or by consciously avoiding knowing, whether such person is
engaging, or will engage, in a pattern or practice that
violates this Act''.
(3) Statutory damages.--
(A) In general.--For purposes of paragraph
(1)(B)(ii), the amount determined under this paragraph
is the amount calculated by multiplying the number of
violations (with each separately addressed unlawful
message that is transmitted or attempted to be
transmitted over the facilities of the provider of
Internet access service, or that is transmitted or
attempted to be transmitted to an electronic mail
address obtained from the provider of Internet access
service in violation of section 5(b)(1)(A)(i), treated
as a separate violation) by--
(i) up to $100, in the case of a violation
of section 5(a)(1); or
(ii) up to $25, in the case of any other
violation of section 5.
(B) Limitation.--For any violation of section 5
(other than section 5(a)(1)), the amount determined
under subparagraph (A) may not exceed $1,000,000.
(C) Aggravated damages.--The court may increase a
damage award to an amount equal to not more than three
times the amount otherwise available under this
paragraph if--
(i) the court determines that the defendant
committed the violation willfully and
knowingly; or
(ii) the defendant's unlawful activity
included one or more of the aggravated
violations set forth in section 5(b).
(D) Reduction of damages.--In assessing damages
under subparagraph (A), the court may consider
whether--
(i) the defendant has established and
implemented, with due care, commercially
reasonable practices and procedures designed to
effectively prevent such violations; or
(ii) the violation occurred despite
commercially reasonable efforts to maintain
compliance with the practices and procedures to
which reference is made in clause (i).
(4) Attorney fees.--In any action brought pursuant to
paragraph (1), the court may, in its discretion, require an
undertaking for the payment of the costs of such action, and
assess reasonable costs, including reasonable attorneys' fees,
against any party.
SEC. 8. EFFECT ON OTHER LAWS.
(a) Federal Law.--(1) Nothing in this Act shall 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) Nothing in this Act shall be construed to affect in any way the
Commission's authority to bring enforcement actions under FTC Act for
materially false or deceptive representations or unfair practices in
commercial electronic mail messages.
(b) State Law.--
(1) In general.--This Act supersedes any statute,
regulation, or rule of a State or political subdivision of a
State that expressly regulates the use of electronic mail to
send commercial messages, except to the extent that any such
statute, regulation, or rule prohibits falsity or deception in
any portion of a commercial electronic mail message or
information attached thereto.
(2) State law not specific to electronic mail.--This Act
shall not be construed to preempt the applicability of--
(A) State laws that are not specific to electronic
mail, including State trespass, contract, or tort law;
or
(B) other State laws to the extent that those laws
relate to acts of fraud or computer crime.
(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, or store certain types of electronic mail messages.
SEC. 9. DO-NOT-E-MAIL REGISTRY.
(a) In General.--Not later than 6 months after the date of
enactment of this Act, the Commission shall transmit to the Senate
Committee on Commerce, Science, and Transportation and the House of
Representatives Committee on Energy and Commerce a report that--
(1) sets forth a plan and timetable for establishing a
nationwide marketing Do-Not-E-Mail registry;
(2) includes an explanation of any practical, technical,
security, privacy, enforceability, or other concerns that the
Commission has regarding such a registry; and
(3) includes an explanation of how the registry would be
applied with respect to children with e-mail accounts.
(b) Authorization To Implement.--The Commission may establish and
implement the plan, but not earlier than 9 months after the date of
enactment of this Act.
SEC. 10. STUDY OF EFFECTS OF COMMERCIAL ELECTRONIC MAIL.
(a) In General.--Not later than 24 months after the date of the
enactment of this Act, the Commission, in consultation with the
Department of Justice and other appropriate agencies, shall submit a
report to the Congress that provides a detailed analysis of the
effectiveness and enforcement of the provisions of this Act and the
need (if any) for the Congress to modify such provisions.
(b) Required Analysis.--The Commission shall include in the report
required by subsection (a)--
(1) 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 this Act;
(2) analysis and recommendations concerning how to address
commercial electronic mail that originates in or is transmitted
through or to facilities or computers in other nations,
including initiatives or policy positions that the Federal
Government could pursue through international negotiations,
fora, organizations, or institutions; and
(3) analysis and recommendations concerning options for
protecting consumers, including children, from the receipt and
viewing of commercial electronic mail that is obscene or
pornographic.
SEC. 11. IMPROVING ENFORCEMENT BY PROVIDING REWARDS FOR INFORMATION
ABOUT VIOLATIONS; LABELING.
The Commission shall transmit to the Senate Committee on Commerce,
Science, and Transportation and the House of Representatives Committee
on Energy and Commerce--
(1) a report, within 9 months after the date of enactment
of this Act, that sets forth a system for rewarding those who
supply information about violations of this Act, including--
(A) procedures for the Commission to grant a reward
of not less than 20 percent of the total civil penalty
collected for a violation of this Act to the first
person that--
(i) identifies the person in violation of
this Act; and
(ii) supplies information that leads to the
successful collection of a civil penalty by the
Commission; and
(B) procedures to minimize the burden of submitting
a complaint to the Commission concerning violations of
this Act, including procedures to allow the electronic
submission of complaints to the Commission; and
(2) a report, within 18 months after the date of enactment
of this Act, that sets forth a plan for requiring commercial
electronic mail to be identifiable from its subject line, by
means of compliance with Internet Engineering Task Force
Standards, the use of the characters ``ADV'' in the subject
line, or other comparable identifier, or an explanation of any
concerns the Commission has that cause the Commission to
recommend against the plan.
SEC. 12. RESTRICTIONS ON OTHER TRANSMISSIONS.
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''.
SEC. 13. REGULATIONS.
(a) In General.--The Commission may issue regulations to implement
the provisions of this Act (not including the amendments made by
sections 4 and 12). Any such regulations shall be issued in accordance
with section 553 of title 5, United States Code.
(b) Limitation.--Subsection (a) may not be construed to authorize
the Commission to establish a requirement pursuant to section
5(a)(5)(A) to include any specific words, characters, marks, or labels
in a commercial electronic mail message, or to include the
identification required by section 5(a)(5)(A) in any particular part of
such a mail message (such as the subject line or body).
SEC. 14. APPLICATION TO WIRELESS.
(a) Effect on Other Law.--Nothing in this Act shall be interpreted
to preclude or override the applicability of section 227 of the
Communications Act of 1934 (47 U.S.C. 227) or the rules prescribed
under section 3 of the Telemarketing and Consumer Fraud and Abuse
Prevention Act (15 U.S.C. 6102).
(b) FCC Rulemaking.--The Federal Communications Commission, in
consultation with the Federal Trade Commission, shall promulgate rules
within 270 days to protect consumers from unwanted mobile service
commercial messages. The Federal Communications Commission, in
promulgating the rules, shall, to the extent consistent with subsection
(c)--
(1) provide subscribers to commercial mobile services the
ability to avoid receiving mobile service commercial messages
unless the subscriber has provided express prior authorization
to the sender, except as provided in paragraph (3);
(2) allow recipients of mobile service commercial messages
to indicate electronically a desire not to receive future
mobile service commercial messages from the sender;
(3) take into consideration, in determining whether to
subject providers of commercial mobile services to paragraph
(1), the relationship that exists between providers of such
services and their subscribers, but if the Commission
determines that such providers should not be subject to
paragraph (1), the rules shall require such providers, in
addition to complying with the other provisions of this Act, to
allow subscribers to indicate a desire not to receive future
mobile service commercial messages from the provider--
(A) at the time of subscribing to such service; and
(B) in any billing mechanism; and
(4) determine how a sender of mobile service commercial
messages may comply with the provisions of this Act,
considering the unique technical aspects, including the
functional and character limitations, of devices that receive
such messages.
(c) Other Factors Considered.--The Federal Communications
Commission shall consider the ability of a sender of a commercial
electronic mail message to reasonably determine that the message is a
mobile service commercial message.
(d) Mobile Service Commercial Message Defined.--In this section,
the term ``mobile service commercial message'' means a commercial
electronic mail message that is transmitted directly to a wireless
device that is utilized by a subscriber of commercial mobile service
(as such term is defined in section 332(d) of the Communications Act of
1934 (47 U.S.C. 332(d))) in connection with such service.
SEC. 15. SEPARABILITY.
If any provision of this Act or the application thereof to any
person or circumstance is held invalid, the remainder of this Act and
the application of such provision to other persons or circumstances
shall not be affected.
SEC. 16. EFFECTIVE DATE.
The provisions of this Act, other than section 9, shall take effect
on January 1, 2004.
Attest:
Secretary.
108th CONGRESS
1st Session
S. 877
_______________________________________________________________________
SENATE AMENDMENT TO HOUSE AMENDMENT