[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 877 Engrossed in Senate (ES)]
108th CONGRESS
1st Session
S. 877
_______________________________________________________________________
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,
TITLE I--CONTROLLING THE ASSAULT OF NON-SOLICITED PORNOGRAPHY AND
MARKETING ACT OF 2003
SEC. 101. SHORT TITLE.
This title 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. 102. 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 45
percent of all electronic mail traffic, up from an estimated 7
percent in 2001, and the volume continues to rise. Most of
these unsolicited commercial electronic mail 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 unsolicited 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 unsolicited 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 message's
subject lines in order to induce the recipients to view the
messages.
(9) While some senders of unsolicited commercial electronic
mail messages provide simple and reliable ways for recipients
to reject (or ``opt-out'' of) receipt of unsolicited 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 unsolicited commercial electronic mail on a
nationwide basis;
(2) senders of unsolicited commercial electronic mail
should not mislead recipients as to the source or content of
such mail; and
(3) recipients of unsolicited commercial electronic mail
have a right to decline to receive additional unsolicited
commercial electronic mail from the same source.
SEC. 103. DEFINITIONS.
In this title:
(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) 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 title 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) Implied consent.--
(A) In general.--The term ``implied consent'', when
used with respect to a commercial electronic mail
message, means that--
(i) within the 3-year period ending upon
receipt of such message, there has been a
business transaction between the sender and the
recipient (including a transaction involving
the provision, free of charge, of information,
goods, or services requested by the recipient);
and
(ii) the recipient was, at the time of such
transaction or thereafter in the first
electronic mail message received from the
sender after the effective date of this title,
provided a clear and conspicuous notice of an
opportunity not to receive unsolicited
commercial electronic mail messages from the
sender and has not exercised such opportunity.
(B) Mere visitation.--A visit by a recipient to a
publicly available website shall not be treated as a
transaction for purposes of subparagraph (A)(i) if the
recipient did not knowingly submit the recipient's
electronic mail address to the operator of the website.
(C) Separate lines of business or divisions.--If a
sender operates through separate lines of business or
divisions and holds itself out to the recipient, both
at the time of the transaction described in
subparagraph (A)(i) and at the time the notice under
subparagraph (A)(ii) was provided to the recipient, 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 for purposes of
this paragraph.
(10) 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 1 person may
be considered to have initiated a message.
(11) Internet.--The term ``Internet'' has the meaning given
that term in the Internet Tax Freedom Act (47 U.S.C. 151 nt).
(12) Internet access service.--The term ``Internet access
service'' has the meaning given that term in section 231(e)(4)
of the Communications Act of 1934 (47 U.S.C. 231(e)(4)).
(13) 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, knowing, or consciously avoiding knowing, the extent to
which that person intends to comply with the requirements of
this title.
(14) Protected computer.--The term ``protected computer''
has the meaning given that term in section 1030(e)(2)(B) of
title 18, United States Code.
(15) 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 1 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.
(16) 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.
(17) Sender.--The term ``sender'', when used with respect
to a commercial electronic mail message, means a person who
initiates such a message and whose product, service, or
Internet web site is advertised or promoted by the message.
(18) Transactional or relationship message.--The term
``transactional or relationship message'' means an electronic
mail message the primary purpose of which is--
(A) to facilitate, complete, or confirm a
commercial transaction that the recipient has
previously agreed to enter into with the sender;
(B) 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;
(C) 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;
(D) to provide information directly related to an
employment relationship or related benefit plan in
which the recipient is currently involved,
participating, or enrolled; or
(E) 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.
(19) Unsolicited commercial electronic mail message.--The
term ``unsolicited commercial electronic mail message'' means
any commercial electronic mail message that--
(A) is not a transactional or relationship message;
and
(B) is sent to a recipient without the recipient's
prior affirmative or implied consent.
SEC. 104. PROHIBITION AGAINST PREDATORY AND ABUSIVE COMMERCIAL E-MAIL.
(a) Offense.--
(1) In general.--Chapter 47 of title 18, United States
Code, is amended by adding at the end the following new
section:
``Sec. 1037. Fraud and related activity in connection with electronic
mail
``(a) In General.--Whoever, in or affecting interstate or foreign
commerce, knowingly--
``(1) accesses a protected computer without authorization,
and intentionally initiates the transmission of multiple
commercial electronic mail messages from or through such
computer,
``(2) uses a protected computer to relay or retransmit
multiple commercial electronic mail messages, with the intent
to deceive or mislead recipients, or any Internet access
service, as to the origin of such messages,
``(3) falsifies header information in multiple commercial
electronic mail messages and intentionally initiates the
transmission of such messages,
``(4) registers, using information that falsifies the
identity of the actual registrant, for 5 or more electronic
mail accounts or online user accounts or 2 or more domain
names, and intentionally initiates the transmission of multiple
commercial electronic mail messages from any combination of
such accounts or domain names, or
``(5) falsely represents the right to use 5 or more
Internet protocol addresses, and intentionally initiates the
transmission of multiple commercial electronic mail messages
from such addresses,
or conspires to do so, shall be punished as provided in subsection (b).
``(b) Penalties.--The punishment for an offense under subsection
(a) is--
``(1) a fine under this title, imprisonment for not more
than 5 years, or both, if--
``(A) the offense is committed in furtherance of
any felony under the laws of the United States or of
any State; or
``(B) the defendant has previously been convicted
under this section or section 1030, or under the law of
any State for conduct involving the transmission of
multiple commercial electronic mail messages or
unauthorized access to a computer system;
``(2) a fine under this title, imprisonment for not more
than 3 years, or both, if--
``(A) the offense is an offense under subsection
(a)(1);
``(B) the offense is an offense under subsection
(a)(4) and involved 20 or more falsified electronic
mail or online user account registrations, or 10 or
more falsified domain name registrations;
``(C) the volume of electronic mail messages
transmitted in furtherance of the offense exceeded
2,500 during any 24-hour period, 25,000 during any 30-
day period, or 250,000 during any 1-year period;
``(D) the offense caused loss to 1 or more persons
aggregating $5,000 or more in value during any 1-year
period;
``(E) as a result of the offense any individual
committing the offense obtained anything of value
aggregating $5,000 or more during any 1-year period; or
``(F) the offense was undertaken by the defendant
in concert with 3 or more other persons with respect to
whom the defendant occupied a position of organizer or
leader; and
``(3) a fine under this title or imprisonment for not more
than 1 year, or both, in any other case.
``(c) Forfeiture.--
``(1) In general.--The court, in imposing sentence on a
person who is convicted of an offense under this section, shall
order that the defendant forfeit to the United States--
``(A) any property, real or personal, constituting
or traceable to gross proceeds obtained from such
offense; and
``(B) any equipment, software, or other technology
used or intended to be used to commit or to facilitate
the commission of such offense.
``(2) Procedures.--The procedures set forth in section 413
of the Controlled Substances Act (21 U.S.C. 853), other than
subsection (d) of that section, and in Rule 32.2 of the Federal
Rules of Criminal Procedure, shall apply to all stages of a
criminal forfeiture proceeding under this section.
``(d) Definitions.--In this section:
``(1) Loss.--The term `loss' has the meaning given that
term in section 1030(e) of this title.
``(2) 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.
``(3) 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 unsolicited 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. 105. 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 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 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 that accurately identifies any
person who initiated the message shall not be
considered materially false or materially misleading;
and
``(C) if header information attached to a message
fails to identify 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, then such header information shall be
considered materially misleading.''.
(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 with
a subject heading that such person knows 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.
(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 unsolicited 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 technical or capacity problems, if the
technical or capacity problems were not reasonably
foreseeable in light of the potential volume of
response messages or requests, and if the problem with
receiving messages or processing requests is corrected
within a reasonable time period.
(D) Exception.--The requirements of this paragraph
shall not apply to a message that is a transactional or
relationship message.
(4) Prohibition of transmission of unsolicited commercial
electronic mail after objection.--If a recipient makes a
request using a mechanism provided pursuant to paragraph (3)
not to receive some or any unsolicited commercial electronic
mail messages from such sender, then it is unlawful--
(A) for the sender to initiate the transmission to
the recipient, more than 10 business days after the
receipt of such request, of an unsolicited commercial
electronic mail message that falls within the scope of
the request;
(B) 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 an unsolicited commercial electronic mail
message that such person knows or consciously avoids
knowing falls within the scope of the request;
(C) 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 an
unsolicited commercial electronic mail message that the
person knows, or consciously avoids knowing, would
violate subparagraph (A) or (B); or
(D) 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 title or other provision of law.
(5) Inclusion of identifier, opt-out, and physical address
in unsolicited commercial electronic mail.--It is unlawful for
any person to initiate the transmission of any unsolicited
commercial electronic mail message to a protected computer
unless the message provides--
(A) clear and conspicuous identification that the
message is an advertisement or solicitation;
(B) clear and conspicuous notice of the opportunity
under paragraph (3) to decline to receive further
unsolicited commercial electronic mail messages from
the sender; and
(C) a valid physical postal address of the sender.
(6) Materiality defined.--For purposes of paragraph (1), an
inaccuracy or omission in header information is material if it
would materially impede the ability of a party seeking to
allege a violation of this title to locate the person who
initiated the message or to investigate the alleged violation.
(b) Aggravated Violations Relating to Unsolicited 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
an unsolicited 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 knows, should have known,
or consciously avoids knowing 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,
unsolicited 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, an unsolicited 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
an unsolicited 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) Compliance Procedures.--An action for violation of paragraph
(2), (3), (4), or (5) of subsection (a) may not proceed if the person
against whom the action is brought demonstrates that --
(1) the person has established and implemented,
with due care, reasonable practices and procedures to
effectively prevent violations of such paragraph; and
(2) the violation occurred despite good faith
efforts to maintain compliance with such practices and
procedures.
(d) Supplementary Rulemaking Authority.--The Commission may by
rule--
(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).
(e) 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 unsolicited 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) Prescription of marks and notices.--Not later than 120
days after the date of the enactment of this title, the
Commission in consultation with the Attorney General shall
prescribe clearly identifiable marks or notices to be included
in or associated with unsolicited 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.
(3) 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.
(4) Penalty.--A violation of paragraph (1) is punishable as
if it were a violation of section 1037(a) of title 18, United
States Code.
SEC. 106. 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 105(a)(1) if that person--
(1) knows, or should have known in 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 105(a)(1); and
(ii) receives, or expects to receive, an economic
benefit from such promotion.
(c) Exclusive Enforcement by FTC.--Subsections (e) and (f) of
section 107 do not apply to violations of this section.
SEC. 107. ENFORCEMENT BY FEDERAL TRADE COMMISSION.
(a) Violation Is Unfair or Deceptive Act or Practice.--Except as
provided in subsection (b), this title shall be enforced by the
Commission as if the violation of this title 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
title 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, and any subsidiaries
of such entities (except brokers, dealers, persons
providing insurance, investment companies, and
investment advisers), 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 and their nonbank
subsidiaries or affiliates (except brokers, dealers,
persons providing insurance, investment companies, and
investment advisers), 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, and
any subsidiaries of such entities (except brokers,
dealers, persons providing insurance, investment
companies, and investment advisers), 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,
and any subsidiaries of such savings associations
(except brokers, dealers, persons providing insurance,
investment companies, and investment advisers), 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, and any
subsidiaries of such a 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);
(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 title 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 title, any other authority conferred
on it by law.
(d) Actions by the Commission.--The Commission shall prevent any
person from violating this title 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
title. 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) Enforcement by States.--
(1) Civil action.--In any case in which the attorney
general 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 engaging in a practice that
violates section 105 of this title, 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 105 of
this title 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
(2).
(2) 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--
(i) up to $100, in the case of a violation
of section 105(a)(1); or
(ii) $25, in the case of any other
violation of section 105.
(B) Limitation.--For any violation of section 105
(other than section 105(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 aggravating
violations set forth in section 105(b).
(3) Attorney fees.--In the case of any successful action
under paragraph (1), the State shall be awarded the costs of
the action and reasonable attorney fees as determined by the
court.
(4) 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.
(5) Construction.--For purposes of bringing any civil
action under paragraph (1), nothing in this title 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.
(6) 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.
(7) 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 title, no State
attorney general 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 title alleged in the complaint.
(f) Action by Provider of Internet Access Service.--
(1) Action authorized.--A provider of Internet access
service adversely affected by a violation of section 105 may
bring a civil action in any district court of the United States
with jurisdiction over the defendant--
(A) enjoin further violation by the defendant; or
(B) 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
(2).
(2) 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 105(b)(1)(A)(i),
treated as a separate violation) by--
(i) up to $100, in the case of a violation
of section 105(a)(1); or
(ii) $25, in the case of any other
violation of section 105.
(B) Limitation.--For any violation of section 105
(other than section 105(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 105(b).
(3) 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. 108. EFFECT ON OTHER LAWS.
(a) Federal Law.--
(1) Nothing in this title 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 title 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 title 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 title
shall not be construed to preempt the applicability of State
laws that are not specific to electronic mail, including State
trespass, contract, or tort law, and 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 title 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. 109. DO-NOT-E-MAIL REGISTRY.
(a) In General.--Not later than 6 months after the date of
enactment of this title, 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 title.
SEC. 110. STUDY OF EFFECTS OF UNSOLICITED COMMERCIAL ELECTRONIC MAIL.
(a) In General.--Not later than 24 months after the date of the
enactment of this title, 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 title 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 title;
(2) analysis and recommendations concerning how to address
unsolicited 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 unsolicited commercial electronic mail that is
obscene or pornographic.
SEC. 111. IMPROVING ENFORCEMENT BY PROVIDING REWARDS FOR INFORMATION
ABOUT VIOLATIONS; LABELING.
(a) In General.--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 title, that sets forth a system for rewarding those who
supply information about violations of this title, 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 title to the first
person that--
(i) identifies the person in violation of
this title; 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 title, 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 title, that sets forth a plan for requiring unsolicited
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.
(b) Implementation of Reward System.--The Commission may establish
and implement the plan under subsection (a)(1), but not earlier than 12
months after the date of enactment of this title.
SEC. 112. SEPARABILITY.
If any provision of this title or the application thereof to any
person or circumstance is held invalid, the remainder of this title and
the application of such provision to other persons or circumstances
shall not be affected.
SEC. 113. EFFECTIVE DATE.
The provisions of this title other than section 109, shall take
effect 120 days after the date of the enactment of this title.
TITLE II--REALTIME WRITERS ACT
SEC. 201. SHORT TITLE.
This title may be cited as the ``Training for Realtime Writers Act
of 2003''.
SEC. 202. FINDINGS.
Congress makes the following findings:
(1) As directed by Congress in section 723 of the
Communications Act of 1934 (47 U.S.C. 613), as added by section
305 of the Telecommunications Act of 1996 (Public Law 104-104;
110 Stat. 126), the Federal Communications Commission adopted
rules requiring closed captioning of most television
programming, which gradually require new video programming to
be fully captioned beginning in 2006.
(2) More than 28,000,000 Americans, or 8 percent of the
population, are considered deaf or hard of hearing, and many
require captioning services to participate in mainstream
activities.
(3) More than 24,000 children are born in the United States
each year with some form of hearing loss.
(4) According to the Department of Health and Human
Services and a study done by the National Council on Aging--
(A) 25 percent of Americans over 65 years old are
hearing impaired;
(B) 33 percent of Americans over 70 years old are
hearing impaired; and
(C) 41 percent of Americans over 75 years old are
hearing impaired.
(5) The National Council on Aging study also found that
depression in older adults may be directly related to hearing
loss and disconnection with the spoken word.
(6) Empirical research demonstrates that captions improve
the performance of individuals learning to read English and,
according to numerous Federal agency statistics, could
benefit--
(A) 3,700,000 remedial readers;
(B) 12,000,000 young children learning to read;
(C) 27,000,000 illiterate adults; and
(D) 30,000,000 people for whom English is a second
language.
(7) Over the past 5 years, student enrollment in programs
that train court reporters to become realtime writers has
decreased significantly, causing such programs to close on many
campuses.
SEC. 203. AUTHORIZATION OF GRANT PROGRAM TO PROMOTE TRAINING AND JOB
PLACEMENT OF REALTIME WRITERS.
(a) In General.--The National Telecommunications and Information
Administration shall make competitive grants to eligible entities under
subsection (b) to promote training and placement of individuals,
including individuals who have completed a court reporting training
program, as realtime writers in order to meet the requirements for
closed captioning of video programming set forth in section 723 of the
Communications Act of 1934 (47 U.S.C. 613) and the rules prescribed
thereunder.
(b) Eligible Entities.--For purposes of this title, an eligible
entity is a court reporting program that--
(1) can document and demonstrate to the Secretary of
Commerce that it meets minimum standards of educational and
financial accountability, with a curriculum capable of training
realtime writers qualified to provide captioning services;
(2) is accredited by an accrediting agency recognized by
the Department of Education; and
(3) is participating in student aid programs under title IV
of the Higher Education Act of 1965.
(c) Priority in Grants.--In determining whether to make grants
under this section, the Secretary of Commerce shall give a priority to
eligible entities that, as determined by the Secretary of Commerce--
(1) possess the most substantial capability to increase
their capacity to train realtime writers;
(2) demonstrate the most promising collaboration with local
educational institutions, businesses, labor organizations, or
other community groups having the potential to train or provide
job placement assistance to realtime writers; or
(3) propose the most promising and innovative approaches
for initiating or expanding training and job placement
assistance efforts with respect to realtime writers.
(d) Duration of Grant.--A grant under this section shall be for a
period of two years.
(e) Maximum Amount of Grant.--The amount of a grant provided under
subsection (a) to an entity eligible may not exceed $1,500,000 for the
two-year period of the grant under subsection (d).
SEC. 204. APPLICATION.
(a) In General.--To receive a grant under section 203, an eligible
entity shall submit an application to the National Telecommunications
and Information Administration at such time and in such manner as the
Administration may require. The application shall contain the
information set forth under subsection (b).
(b) Information.--Information in the application of an eligible
entity under subsection (a) for a grant under section 203 shall include
the following:
(1) A description of the training and assistance to be
funded using the grant amount, including how such training and
assistance will increase the number of realtime writers.
(2) A description of performance measures to be utilized to
evaluate the progress of individuals receiving such training
and assistance in matters relating to enrollment, completion of
training, and job placement and retention.
(3) A description of the manner in which the eligible
entity will ensure that recipients of scholarships, if any,
funded by the grant will be employed and retained as realtime
writers.
(4) A description of the manner in which the eligible
entity intends to continue providing the training and
assistance to be funded by the grant after the end of the grant
period, including any partnerships or arrangements established
for that purpose.
(5) A description of how the eligible entity will work with
local workforce investment boards to ensure that training and
assistance to be funded with the grant will further local
workforce goals, including the creation of educational
opportunities for individuals who are from economically
disadvantaged backgrounds or are displaced workers.
(6) Additional information, if any, of the eligibility of
the eligible entity for priority in the making of grants under
section 203(c).
(7) Such other information as the Administration may
require.
SEC. 205. USE OF FUNDS.
(a) In General.--An eligible entity receiving a grant under section
203 shall use the grant amount for purposes relating to the
recruitment, training and assistance, and job placement of individuals,
including individuals who have completed a court reporting training
program, as realtime writers, including--
(1) recruitment;
(2) subject to subsection (b), the provision of
scholarships;
(3) distance learning;
(4) development of curriculum to more effectively train
realtime writing skills, and education in the knowledge
necessary for the delivery of high-quality closed captioning
services;
(5) assistance in job placement for upcoming and recent
graduates with all types of captioning employers;
(6) encouragement of individuals with disabilities to
pursue a career in realtime writing; and
(7) the employment and payment of personnel for such
purposes.
(b) Scholarships.--
(1) Amount.--The amount of a scholarship under subsection
(a)(2) shall be based on the amount of need of the recipient of
the scholarship for financial assistance, as determined in
accordance with part F of title IV of the Higher Education Act
of 1965 (20 U.S.C. 1087kk).
(2) Agreement.--Each recipient of a scholarship under
subsection (a)(2) shall enter into an agreement with the
National Telecommunications and Information Administration to
provide realtime writing services for a period of time (as
determined by the Administration) that is appropriate (as so
determined) for the amount of the scholarship received.
(3) Coursework and employment.--The Administration shall
establish requirements for coursework and employment for
recipients of scholarships under subsection (a)(2), including
requirements for repayment of scholarship amounts in the event
of failure to meet such requirements for coursework and
employment. Requirements for repayment of scholarship amounts
shall take into account the effect of economic conditions on
the capacity of scholarship recipients to find work as realtime
writers.
(c) Administrative Costs.--The recipient of a grant under section
203 may not use more than 5 percent of the grant amount to pay
administrative costs associated with activities funded by the grant.
(d) Supplement Not Supplant.--Grants amounts under this title shall
supplement and not supplant other Federal or non-Federal funds of the
grant recipient for purposes of promoting the training and placement of
individuals as realtime writers
SEC. 206. REPORTS.
(a) Annual Reports.--Each eligible entity receiving a grant under
section 203 shall submit to the National Telecommunications and
Information Administration, at the end of each year of the grant
period, a report on the activities of such entity with respect to the
use of grant amounts during such year.
(b) Report Information.--
(1) In general.--Each report of an entity for a year under
subsection (a) shall include a description of the use of grant
amounts by the entity during such year, including an assessment
by the entity of the effectiveness of activities carried out
using such funds in increasing the number of realtime writers.
The assessment shall utilize the performance measures submitted
by the entity in the application for the grant under section
204(b).
(2) Final report.--The final report of an entity on a grant
under subsection (a) shall include a description of the best
practices identified by the entity as a result of the grant for
increasing the number of individuals who are trained, employed,
and retained in employment as realtime writers.
SEC. 207. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated to carry out this title,
amounts as follows:
(1) $20,000,000 for each of fiscal years 2004, 2005, and
2006.
(2) Such sums as may be necessary for fiscal year 2007.
Passed the Senate October 22, 2003.
Attest:
Secretary.
108th CONGRESS
1st Session
S. 877
_______________________________________________________________________
AN ACT
To regulate interstate commerce by imposing limitations and penalties
on the transmission of unsolicited commercial electronic mail via the
Internet.