[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 877 Enrolled Bill (ENR)]

        S.877

                       One Hundred Eighth Congress

                                 of the

                        United States of America


                          AT THE FIRST SESSION

          Begun and held at the City of Washington on Tuesday,
           the seventh day of January, two thousand and three


                                 An Act


 
To regulate interstate commerce by imposing limitations and penalties on 
   the transmission of unsolicited commercial electronic mail via the 
                                Internet.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``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 three 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) 
        and 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.

                               Speaker of the House of Representatives.

                            Vice President of the United States and    
                                               President of the Senate.