[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 877 Reported in Senate (RS)]
Calendar No. 209
108th CONGRESS
1st Session
S. 877
[Report No. 108-102]
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, Mr. Schumer, Mr. Talent, Mr. Johnson, Mr. Gregg, Mr.
Carper, Mr. Lieberman, Mr. Nelson of Florida, Ms. Snowe, Mr. Chambliss,
Mr. Dodd, Mr. Lautenberg, Mr. Edwards, and Ms. Murkowski) introduced
the following bill; which was read twice and referred to the Committee
on Commerce, Science, and Transportation
July 16, 2003
Reported by Mr. McCain, with an amendment
[Strike all after the enacting clause and insert the part printed in
italic]
_______________________________________________________________________
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,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> 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''.</DELETED>
<DELETED>SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.</DELETED>
<DELETED> (a) Findings.--The Congress finds the following:</DELETED>
<DELETED> (1) There is a right of free speech on the
Internet.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (4) Unsolicited commercial electronic mail can be
a mechanism through which businesses advertise and attract
customers in the online environment.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (7) Some unsolicited commercial electronic mail
contains material that many recipients may consider vulgar or
pornographic in nature.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (b) Congressional Determination of Public Policy.--On the
basis of the findings in subsection (a), the Congress determines that--
</DELETED>
<DELETED> (1) there is a substantial government interest in
regulation of unsolicited commercial electronic mail;</DELETED>
<DELETED> (2) senders of unsolicited commercial electronic
mail should not mislead recipients as to the source or content
of such mail; and</DELETED>
<DELETED> (3) recipients of unsolicited commercial
electronic mail have a right to decline to receive additional
unsolicited commercial electronic mail from the same
source.</DELETED>
<DELETED>SEC. 3. DEFINITIONS.</DELETED>
<DELETED> In this Act:</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (2) Commercial electronic mail message.--
</DELETED>
<DELETED> (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).</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (3) Commission.--The term ``Commission'' means the
Federal Trade Commission.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (6) Electronic mail message.--The term
``electronic mail message'' means a message sent to an
electronic mail address.</DELETED>
<DELETED> (7) FTC act.--The term ``FTC Act'' means the
Federal Trade Commission Act (15 U.S.C. 41 et seq.).</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (9) Implied consent.--The term ``implied
consent'', when used with respect to a commercial electronic
mail message, means that--</DELETED>
<DELETED> (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</DELETED>
<DELETED> (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.</DELETED>
<DELETED>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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (11) Internet.--The term ``Internet'' has the
meaning given that term in the Internet Tax Freedom Act (47
U.S.C. 151 nt).</DELETED>
<DELETED> (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)).</DELETED>
<DELETED> (13) Protected computer.--The term ``protected
computer'' has the meaning given that term in section
1030(e)(2) of title 18, United States Code.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (A) a commercial transaction that the
recipient has previously agreed to enter into with the
sender;</DELETED>
<DELETED> (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</DELETED>
<DELETED> (C) an existing employment relationship or
related benefit plan.</DELETED>
<DELETED> (18) Unsolicited commercial electronic mail
message.--The term ``unsolicited commercial electronic mail
message'' means any commercial electronic mail message that--
</DELETED>
<DELETED> (A) is not a transactional or relationship
message; and</DELETED>
<DELETED> (B) is sent to a recipient without the
recipient's prior affirmative or implied
consent.</DELETED>
<DELETED>SEC. 4. CRIMINAL PENALTY FOR UNSOLICITED COMMERCIAL ELECTRONIC
MAIL CONTAINING FRAUDULENT ROUTING INFORMATION.</DELETED>
<DELETED> (a) In General.--Chapter 63 of title 18, United States
Code, is amended by adding at the end the following:</DELETED>
<DELETED>``Sec. 1351. Unsolicited commercial electronic mail
containing fraudulent transmission information</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.''.</DELETED>
<DELETED> (b) Conforming Amendment.--The chapter analysis for
chapter 63 of title 18, United States Code, is amended by adding at the
end the following:</DELETED>
<DELETED>``1351. Unsolicited commercial electronic mail containing
fraudulent routing information''.
<DELETED>SEC. 5. OTHER PROTECTIONS AGAINST UNSOLICITED COMMERCIAL
ELECTRONIC MAIL.</DELETED>
<DELETED> (a) Requirements for Transmission of Messages.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (3) Inclusion of return address or comparable
mechanism in unsolicited commercial electronic mail.--
</DELETED>
<DELETED> (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--
</DELETED>
<DELETED> (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</DELETED>
<DELETED> (ii) remains capable of receiving
such messages or communications for no less
than 30 days after the transmission of the
original message.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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</DELETED>
<DELETED> (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).</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (A) clear and conspicuous identification
that the message is an advertisement or
solicitation;</DELETED>
<DELETED> (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</DELETED>
<DELETED> (C) a valid physical postal address of the
sender.</DELETED>
<DELETED> (b) Prohibition of Transmission of Unlawful Unsolicited
Commercial Electronic Mail to Certain Harvested Electronic Mail
Addresses.--</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (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</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (2) Disclaimer.--Nothing in this subsection
creates an ownership or proprietary interest in such electronic
mail addresses.</DELETED>
<DELETED> (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--
</DELETED>
<DELETED> (1) the person has established and implemented,
with due care, reasonable practices and procedures to
effectively prevent violations of such paragraph; and</DELETED>
<DELETED> (2) the violation occurred despite good faith
efforts to maintain compliance with such practices and
procedures.</DELETED>
<DELETED>SEC. 6. ENFORCEMENT BY FEDERAL TRADE COMMISSION.</DELETED>
<DELETED> (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)).</DELETED>
<DELETED> (b) Enforcement by Certain Other Agencies.--Compliance
with this Act shall be enforced--</DELETED>
<DELETED> (1) under section 8 of the Federal Deposit
Insurance Act (12 U.S.C. 1818), in the case of--</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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);</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (e) Enforcement by States.--</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (A) to enjoin further violation of section
5 of this Act by the defendant; or</DELETED>
<DELETED> (B) to obtain damages on behalf of
residents of the State, in an amount equal to the
greater of--</DELETED>
<DELETED> (i) the actual monetary loss
suffered by such residents; or</DELETED>
<DELETED> (ii) the amount determined under
paragraph (2).</DELETED>
<DELETED> (2) Statutory damages.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (A) to intervene in the action;</DELETED>
<DELETED> (B) upon so intervening, to be heard on
all matters arising therein;</DELETED>
<DELETED> (C) to remove the action to the
appropriate United States district court; and</DELETED>
<DELETED> (D) to file petitions for
appeal.</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (A) conduct investigations;</DELETED>
<DELETED> (B) administer oaths or affirmations;
or</DELETED>
<DELETED> (C) compel the attendance of witnesses or
the production of documentary and other
evidence.</DELETED>
<DELETED> (6) Venue; service of process.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (B) Service of process.--In an action
brought under paragraph (1), process may be served in
any district in which the defendant--</DELETED>
<DELETED> (i) is an inhabitant; or</DELETED>
<DELETED> (ii) maintains a physical place of
business.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (f) Action by Provider of Internet Access Service.--
</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (A) enjoin further violation by the
defendant; or</DELETED>
<DELETED> (B) recover damages in an amount equal to
the greater of--</DELETED>
<DELETED> (i) actual monetary loss incurred
by the provider of Internet access service as a
result of such violation; or</DELETED>
<DELETED> (ii) the amount determined under
paragraph (2).</DELETED>
<DELETED> (2) Statutory damages.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED>SEC. 7. EFFECT ON OTHER LAWS.</DELETED>
<DELETED> (a) Federal Law.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (b) State Law.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (2) Exceptions.--Except as provided in paragraph
(3), this Act does not supersede or pre-empt--</DELETED>
<DELETED> (A) State trespass, contract, or tort law
or any civil action thereunder; or</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED>SEC. 8. STUDY OF EFFECTS OF UNSOLICITED COMMERCIAL ELECTRONIC
MAIL.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED>SEC. 9. SEPARABILITY.</DELETED>
<DELETED> 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.</DELETED>
<DELETED>SEC. 10. EFFECTIVE DATE.</DELETED>
<DELETED> The provisions of this Act shall take effect 120 days
after the date of the enactment of this Act.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Controlling the Assault of Non-
Solicited Pornography and Marketing Act of 2003'', or the ``CAN-SPAM
Act of 2003''.
SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.
(a) Findings.--The Congress finds the following:
(1) Electronic mail has become an extremely important and
popular means of communication, relied on by millions of
Americans on a daily basis for personal and commercial
purposes. Its low cost and global reach make it extremely
convenient and efficient, and offer unique opportunities for
the development and growth of frictionless commerce.
(2) The convenience and efficiency of electronic mail are
threatened by the extremely rapid growth in the volume of
unsolicited commercial electronic mail. Unsolicited commercial
electronic mail is currently estimated to account for over 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. 3. DEFINITIONS.
In this Act:
(1) Affirmative consent.--The term ``affirmative consent'',
when used with respect to a commercial electronic mail message,
means that--
(A) the recipient expressly consented to receive
the message, either in response to a clear and
conspicuous request for such consent or at the
recipient's own initiative; and
(B) if the message is from a party other than the
party to which the recipient communicated such consent,
the recipient was given clear and conspicuous notice at
the time the consent was communicated that the recipient's electronic
mail address could be transferred to such other party for the purpose
of initiating commercial electronic mail messages.
(2) Commercial electronic mail message.--
(A) In general.--The term ``commercial electronic
mail message'' means any electronic mail message the
primary purpose of which is the commercial
advertisement or promotion of a commercial product or
service (including content on an Internet website
operated for a commercial purpose).
(B) 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 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 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.
(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 Act.
(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. 4. CRIMINAL PENALTY FOR 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. 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 a 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. Commercial electronic mail containing fraudulent routing
information.''.
SEC. 5. OTHER PROTECTIONS FOR USERS OF COMMERCIAL ELECTRONIC MAIL.
(a) Requirements for Transmission of Messages.--
(1) Prohibition of false or misleading transmission
information.--It is unlawful for any person to initiate the
transmission, to a protected computer, of a commercial
electronic mail message that contains, or is accompanied by,
header information that is false or 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 misleading; and
(B) a ``from'' line that accurately identifies any
person who initiated the message shall not be
considered false or 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 Act 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.
(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 establish 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.
SEC. 6. BUSINESSES KNOWINGLY PROMOTED BY ELECTRONIC MAIL WITH FALSE OR
MISLEADING TRANSMISSION INFORMATION.
(a) In General.--It is unlawful for a person to promote, or allow
the promotion of, that person's trade or business, or goods, products,
property, or services sold, offered for sale, leased or offered for
lease, or otherwise made available through that trade or business, in a
commercial electronic mail message the transmission of which is in
violation of section 5(a)(1) if that person--
(1) knows, or should have known in ordinary course of that
person's trade or business, that the goods, products, property,
or services sold, offered for sale, leased or offered for
lease, or otherwise made available through that trade or
business were being promoted in such a message;
(2) received or expected to receive an economic benefit
from such promotion; and
(3) took no reasonable action--
(A) to prevent the transmission; or
(B) to detect the transmission and report it to the
Commission.
(b) Limited Enforcement Against Third Parties.--
(1) In general.--Except as provided in paragraph (2), a
person (hereinafter referred to as the ``third party'') that
provides goods, products, property, or services to another
person that violates subsection (a) shall not be held liable
for such violation.
(2) Exception.--Liability for a violation of subsection (a)
shall be imputed to a third party that provides goods,
products, property, or services to another person that violates
subsection (a) if that third party--
(A) owns, or has a greater than 50 percent
ownership or economic interest in, the trade or
business of the person that violated subsection (a); or
(B)(i) has actual knowledge that goods, products,
property, or services are promoted in a commercial
electronic mail message the transmission of which is in
violation of section 5(a)(1); and
(ii) receives, or expects to receive, an economic
benefit from such promotion.
(c) Exclusive Enforcement by FTC.--Subsections (e) and (f) of
section 7 do not apply to violations of this section.
SEC. 7. 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 Federal Trade Commission trade regulation rule. In
addition to its powers under any provision of law specifically referred
to in subsection (b), each of the agencies referred to in that
subsection may exercise, for the purpose of enforcing compliance with
any requirement imposed under this Act, any other authority conferred
on it by law.
(d) Actions by the Commission.--The Commission shall prevent any
person from violating this Act in the same manner, by the same means,
and with the same jurisdiction, powers, and duties as though all
applicable terms and provisions of the Federal Trade Commission Act (15
U.S.C. 41 et seq.) were incorporated into and made a part of this Act.
Any entity that violates any provision of that subtitle is subject to
the penalties and entitled to the privileges and immunities provided in
the Federal Trade Commission Act in the same manner, by the same means,
and with the same jurisdiction, power, and duties as though all
applicable terms and provisions of the Federal Trade Commission Act
were incorporated into and made a part of that subtitle.
(e) 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
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 5(a)(1); or
(ii) $25, in the case of any other
violation of section 5.
(B) Limitation.--For any violation of section 5
(other than section 5(a)(1)), the amount determined
under subparagraph (A) may not exceed $1,000,000.
(C) Aggravated damages.--The court may increase a
damage award to an amount equal to not more than three
times the amount otherwise available under this
paragraph if--
(i) the court determines that the defendant
committed the violation willfully and
knowingly; or
(ii) the defendant's unlawful activity
included one or more of the aggravating
violations set forth in section 5(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 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
violations (with each separately addressed unlawful
message that is transmitted or attempted to be
transmitted over the facilities of the provider of
Internet access service, or that is transmitted or
attempted to be transmitted to an electronic mail
address obtained from the provider of Internet access
service in violation of section 5(b)(1)(A)(i), treated
as a separate violation) by--
(i) up to $100, in the case of a violation
of section 5(a)(1); or
(ii) $25, in the case of any other
violation of section 5.
(B) Limitation.--For any violation of section 5
(other than section 5(a)(1)), the amount determined
under subparagraph (A) may not exceed $1,000,000.
(C) Aggravated damages.--The court may increase a
damage award to an amount equal to not more than three
times the amount otherwise available under this
paragraph if--
(i) the court determines that the defendant
committed the violation willfully and
knowingly; or
(ii) the defendant's unlawful activity
included one or more of the aggravated
violations set forth in section 5(b).
(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. 8. EFFECT ON OTHER LAWS.
(a) Federal Law.--
(1) Nothing in this Act shall be construed to impair the
enforcement of section 223 or 231 of the Communications Act of
1934 (47 U.S.C. 223 or 231, respectively), chapter 71 (relating
to obscenity) or 110 (relating to sexual exploitation of
children) of title 18, United States Code, or any other Federal
criminal statute.
(2) Nothing in this Act shall be construed to affect in any
way the Commission's authority to bring enforcement actions
under FTC Act for materially false or deceptive representations
or unfair practices in commercial electronic mail messages.
(b) State Law.--
(1) In general.--This Act supersedes any statute,
regulation, or rule of a State or political subdivision of a
State that expressly regulates the use of electronic mail to
send commercial messages, except for any such statute,
regulation, or rule that prohibits falsity or deception in any
portion of a commercial electronic mail message or information
attached thereto.
(2) State law not specific to electronic mail.--This Act
shall not be construed to preempt the applicability of State
laws that are not specific to electronic mail, including State
trespass, contract, or tort law, and State laws relating to
acts of fraud or computer crime.
(c) No Effect on Policies of Providers of Internet Access
Service.--Nothing in this Act shall be construed to have any effect on
the lawfulness or unlawfulness, under any other provision of law, of
the adoption, implementation, or enforcement by a provider of Internet
access service of a policy of declining to transmit, route, relay,
handle, or store certain types of electronic mail messages.
SEC. 9. RECOMMENDATIONS CONCERNING DO-NOT-EMAIL REGISTRY.
Not later than 6 months after the Federal Trade Commission has
completed implementation of its national telemarketing Do-Not-Call
list, the Commission shall transmit to the Congress recommendations for
a workable plan and timetable for creating a nationwide marketing Do-
Not-Email list modeled on the Do-Not-Call list, or an explanation of
any practical, technical, security, or privacy-related issues that
cause the Commission to recommend against creating such a list.
SEC. 10. 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)--
(1) an analysis of the extent to which technological and
marketplace developments, including changes in the nature of
the devices through which consumers access their electronic
mail messages, may affect the practicality and effectiveness of
the provisions of this Act;
(2) analysis and recommendations concerning how to address
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. 11 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. 12. EFFECTIVE DATE.
The provisions of this Act shall take effect 120 days after the
date of the enactment of this Act.
Calendar No. 209
108th CONGRESS
1st Session
S. 877
[Report No. 108-102]
_______________________________________________________________________
A BILL
To regulate interstate commerce by imposing limitations and penalties
on the transmission of unsolicited commercial electronic mail via the
Internet.
_______________________________________________________________________
July 16, 2003
Reported with an amendment