[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 877 Introduced in Senate (IS)]
108th CONGRESS
1st Session
S. 877
To regulate interstate commerce by imposing limitations and penalties
on the transmission of unsolicited commercial electronic mail via the
Internet.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 10, 2003
Mr. Burns (for himself, Mr. Wyden, Mr. Stevens, Mr. Breaux, Mr. Thomas,
Ms. Landrieu, and Mr. Schumer) introduced the following bill; which was
read twice and referred to the Committee on Commerce, Science, and
Transportation
_______________________________________________________________________
A BILL
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) There is a right of free speech on the Internet.
(2) The Internet has increasingly become a critical mode of
global communication and now presents unprecedented
opportunities for the development and growth of global commerce
and an integrated worldwide economy.
(3) In order for global commerce on the Internet to reach
its full potential, individuals and entities using the Internet
and other online services should be prevented from engaging in
activities that prevent other users and Internet service
providers from having a reasonably predictable, efficient, and
economical online experience.
(4) Unsolicited commercial electronic mail can be a
mechanism through which businesses advertise and attract
customers in the online environment.
(5) 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.
(6) Unsolicited commercial electronic mail may impose
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) Some unsolicited commercial electronic mail contains
material that many recipients may consider vulgar or
pornographic in nature.
(8) 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.
(9) An increasing number of senders of unsolicited
commercial electronic mail purposefully disguise the source of
such mail so as to prevent recipients from responding to such
mail quickly and easily.
(10) An increasing number of 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.
(11) In legislating against certain abuses on the Internet,
Congress should be very careful to avoid infringing in any way
upon constitutionally protected rights, including the rights of
assembly, free speech, and privacy.
(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;
(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. 3. DEFINITIONS.
In this Act:
(1) Affirmative consent.--The term ``affirmative consent'',
when used with respect to a commercial electronic mail message,
means that the recipient has 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.
(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 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''), 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 an 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.
(9) Implied consent.--The term ``implied consent'', when
used with respect to a commercial electronic mail message,
means that--
(A) 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
(B) 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 Act, 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.
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) and at
the time the notice under subparagraph (B) 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 such message or to procure the origination of such
message, but shall not include actions that constitute routine
conveyance of such message.
(11) Internet.--The term ``Internet'' has the meaning given
that term in the Internet Tax Freedom Act (47 U.S.C. 151 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) Protected computer.--The term ``protected computer''
has the meaning given that term in section 1030(e)(2) 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 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.
(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 provided
and selected the recipient addresses.
(16) 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.
(17) Transactional or relationship messages.--The term
``transactional or relationship message'' means an electronic
mail message the primary purpose of which is to facilitate,
complete, confirm, provide, or request information concerning--
(A) a commercial transaction that the recipient has
previously agreed to enter into with the sender;
(B) an existing commercial relationship, formed
with or without an exchange of consideration, involving
the ongoing purchase or use by the recipient of
products or services offered by the sender; or
(C) an existing employment relationship or related
benefit plan.
(18) 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. 4. CRIMINAL PENALTY FOR UNSOLICITED COMMERCIAL ELECTRONIC MAIL
CONTAINING FRAUDULENT ROUTING INFORMATION.
(a) In General.--Chapter 63 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 1351. Unsolicited commercial electronic mail containing
fraudulent transmission information
``(a) In General.--Any person who initiates the transmission, to a
protected computer in the United States, of an unsolicited commercial
electronic mail message, with knowledge and intent that the message
contains or is accompanied by header information that is materially
false or materially misleading shall be fined or imprisoned for not
more than 1 year, or both, under this title. For purposes of this
subsection, 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) Definitions.--Any term used in subsection (a) that is defined
in section 3 of the CAN-SPAM Act of 2003 has the meaning given it in
that section.''.
(b) Conforming Amendment.--The chapter analysis for chapter 63 of
title 18, United States Code, is amended by adding at the end the
following:
``1351. Unsolicited commercial electronic mail containing fraudulent
routing information''.
SEC. 5. OTHER PROTECTIONS AGAINST UNSOLICITED 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 or intentionally false or
materially or intentionally misleading. For purposes of this
paragraph, 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.
(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
unsolicited commercial electronic mail.--
(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
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 by the sender, a reply
electronic mail message or other form of
Internet-based communication requesting not to
receive any future unsolicited commercial
electronic mail messages from that sender at
the electronic mail address where the message
was received; and
(ii) remains capable of receiving such
messages or communications for no less than 30
days after the transmission of the original
message.
(B) More detailed options possible.--The sender of
an unsolicited 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
problem with receiving messages or processing requests
is corrected within a reasonable time period.
(4) Prohibition of transmission of unsolicited commercial
electronic mail after objection.--If a recipient makes a
request to a sender, 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; or
(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).
(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.
(b) Prohibition of Transmission of Unlawful Unsolicited Commercial
Electronic Mail to Certain Harvested Electronic Mail Addresses.--
(1) 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 a
message through the provision or selection of addresses to
which the message will be sent, if such person knows that, or
acts with reckless disregard as to whether--
(A) the electronic mail address of the recipient
was obtained, using an automated means, from an
Internet website or proprietary online service operated
by another person; or
(B) the website or proprietary online service from
which the address was obtained included, at the time
the address was obtained, a notice stating that the
operator of such a website or proprietary online
service will not give, sell, or otherwise transfer
addresses maintained by such site or service to any
other party for the purpose of initiating, or enabling
others to initiate, unsolicited electronic mail
messages.
(2) Disclaimer.--Nothing in this subsection creates an
ownership or proprietary interest in such electronic mail
addresses.
(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.
SEC. 6. ENFORCEMENT BY FEDERAL TRADE COMMISSION.
(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, 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 Act is deemed to be
a violation of a requirement imposed under that Act. 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) 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 5 of this Act, 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 or in any other court of competent 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
(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
willful, knowing, or negligent violations by an amount,
in the discretion of the court, of up to $10 (with each
separately addressed unlawful message received by such
residents treated as a separate violation). In
determining the per-violation penalty under this
subparagraph, the court shall take into account the
degree of culpability, any history of prior such
conduct, ability to pay, the extent of economic gain
resulting from the violation, and such other matters as
justice may require.
(B) Limitation.--For any violation of section 5
(other than section 5(a)(1)), the amount determined
under subparagraph (A) may not exceed $500,000, except
that if the court finds that the defendant committed
the violation willfully and knowingly, the court may
increase the limitation established by this paragraph
from $500,000 to an amount not to exceed $1,500,000.
(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 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.
(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 Act, 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 Act 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 5 may
bring a civil action in any district court of the United States
with jurisdiction over the defendant, or in any other court of
competent jurisdiction, to--
(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
willful, knowing, or negligent violations by an amount,
in the discretion of the court, of up to $10 (with each
separately addressed unlawful message carried over the
facilities of the provider of Internet access service
or sent to an electronic mail address obtained from the
provider of Internet access service in violation of
section 5(b) treated as a separate violation). In
determining the per-violation penalty under this
subparagraph, the court shall take into account the
degree of culpability, any history of prior such
conduct, ability to pay, the extent of economic gain
resulting from the violation, and such other matters as
justice may require.
(B) Limitation.--For any violation of section 5
(other than section 5(a)(1)), the amount determined
under subparagraph (A) may not exceed $500,000, except
that if the court finds that the defendant committed
the violation willfully and knowingly, the court may
increase the limitation established by this paragraph
from $500,000 to an amount not to exceed $1,500,000.
(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. 7. 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
in commercial electronic mail messages.
(b) State Law.--
(1) In general.--This Act supersedes any State or local
government statute, regulation, or rule regulating the use of
electronic mail to send commercial messages.
(2) Exceptions.--Except as provided in paragraph (3), this
Act does not supersede or pre-empt--
(A) State trespass, contract, or tort law or any
civil action thereunder; or
(B) any provision of Federal, State, or local
criminal law or any civil remedy available under such
law that relates to acts of fraud or theft perpetrated
by means of the unauthorized transmission of commercial
electronic mail messages.
(3) Limitation on exceptions.--Paragraph (2) does not apply
to a State or local government statute, regulation, or rule
that directly regulates unsolicited commercial electronic mail
and that treats the mere sending of unsolicited commercial
electronic mail in a manner that complies with this Act as
sufficient to constitute a violation of such statute,
regulation, or rule or to create a cause of action thereunder.
(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. 8. STUDY OF EFFECTS OF UNSOLICITED 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) 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.
SEC. 9. 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. 10. EFFECTIVE DATE.
The provisions of this Act shall take effect 120 days after the
date of the enactment of this Act.
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