[Congressional Record Volume 143, Number 68 (Wednesday, May 21, 1997)]
[Senate]
[Pages S4879-S4881]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. MURKOWSKI:
  S. 771. A bill to regulate the transmission of unsolicited commercial 
electronic mail, and for other purposes; to the Committee on Commerce, 
Science, and Transportation.


     The Unsolicited Commercial Electronic Mail Choice Act of 1977

  Mr. MURKOWSKI. Mr. President, I rise today to introduce legislation 
that will address one of the major complaints of Internet users--the 
proliferation of unsolicited e-mail advertisements, junk e-mail, or so-
called spam.
  Mr. President, in the span of 5 years, an entirely new method of 
commerce and communication--electronic mail on the Internet--has spread 
around the world. Along with the benefits of this revolutionary 
technology, there are some negative byproducts that can only damage the 
integrity of this new communications medium.
  Because of technological advances, Internet e-mail has also become a 
very inexpensive means of distributing endless e-mails solicitations 
that not only annoy but can also defraud recipients. Moreover, the 
growth of junk e-mail can clog e-mail distribution networks and overtax 
the ability of service providers to distribute legitimate 
communications.
  With a minimal equipment investment, any individual or business has 
the capability to transmit unsolicited advertisements to thousands of 
people nationwide each hour with the click of a mouse. As technology 
advances, thousands will turn into millions, and junk e-mail could 
overwhelm cyberspace.
  Junk e-mail is known in the trade by the derisive term of ``spam.'' 
Based upon the content of many of these e-mails, I'd be insulted if I 
were an employee of Hormel, the creator of the real Spam.
  Mr. President, not only is junk e-mail an annoyance, but for many 
Americans, especially citizens living in rural States like Alaska, 
there is a real out-of-pocket cost they must pay to receive these 
unsolicited advertisements. When an on-line subscriber in rural Alaska 
or Montana, logs on to a network server, such as America OnLine, to 
check to see if there is e-mail, the subscriber often must pay a long 
distance charge. If there is no e-mail in his on-line mailbox, the 
subscriber's long distance charge may only cover 1 minute. However, if 
there are 25 messages in his mailbox, 24 of which are unsolicited e-
mail ads, his long distance charges could triple or quadruple.
  So what the rural on-line user is forced to do is to pay for the 
privilege of receiving junk e-mail and then having to waste his time 
hitting his delete button to empty this junk out of his mail box.
  Mr. President, we ought to do something to end this practice. In 
1991, Congress passed the Automated Telephone Consumer Protection Act 
that contained a provision which banned unsolicited fax transmissions. 
In the bill I am introducing today, the Unsolicited Commercial 
Electronic Mail Choice Act of 1997, I have not chosen to take such a 
sweeping and unilateral approach because the Internet is about choices, 
not outright bans.

  What my bill does is to require the use of the word ``Advertisement'' 
in the subject line of any unsolicited commercial e-mail, along with 
the sender's real address, real e-mail address, and telephone number in 
the body of the message. This requirement will empower Internet users 
to filter out messages that they do not want to receive.
  Spam generators who refuse to abide by this requirement could face 
legal action from private citizens, state attorneys general, and/or the 
Federal Trade Commission. FTC or state action could result in civil 
penalties of up to $11,000 per incident and, more importantly, cease 
and desist orders. Private citizens bringing suit could recover $5,000 
plus reasonable attorney's fees.
  Internet users can also choose not to unilaterally block all 
unsolicited commercial e-mails. Instead, they can send removal requests 
to specific mailing lists with further transmissions required to end 
within 48 hours.
  Moreover, Internet Service Providers, such as America Online or 
Microsoft Network, would be required to filter out all e-mails with the 
word ``Advertisement'' in the subject line when a consumer so requests. 
Large service providers would have 1 year, from the date of enactment, 
to implement this requirement. Smaller Internet Service Providers would 
have 2 years to meet this requirement. Internet Service Providers would 
also be required to cut off service to those who use their services to 
send out unsolicited commercial e-mails in violation of the provisions 
of the act.
  Mr. President, I want to point out what this bill does not attempt to 
do. It does not ban unsolicited commercial e-mails as some have 
suggested. I have not chosen an outright ban because I support the 
business practices of those who flood inboxes with sales pitches for 
worthless vitamin products and multilevel marketing schemes. Quite the 
contrary, I abhor such solicitations.
  But I do not want to set a precedent in banning commercial speech on 
the Internet. Although these unsolicited advertisements are annoying, I 
do not believe that is a basis for an outright ban. A better approach 
is to simply ignore them by filtering them out. If enough Americans 
choose to filter out such e-mail messages, I seriously doubt that 
anyone will bother to send out such e-mails in the future since the 
cyberspace market will no longer be there.
  I would also note that this bill does not impact automated mailing 
lists, e-mails between friends, or e-mails between businesses and their 
customers when there is a preexisting business relationship.
  Mr. President, the Internet is about choices, not bans. The 
Unsolicited

[[Page S4880]]

Commercial Electronic Mail Message Choice Act of 1997 should restore to 
consumers and businesses the right to be free from endless e-mail 
solicitations. It will be up to the consumer to decide if he or she 
wants to receive such messages. That is the way I believe Americans 
want it. They don't want government telling them what they can receive, 
but they want right to decide for themselves.
  Mr. President, as I said earlier, this is a very new technology and 
it is not my intention to hinder it's development nor interfere with 
legitimate commerce transacted on the Internet. I look forward to 
working with my colleagues to pass legislation that resolves this 
problem.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 771

       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 ``Unsolicited Commercial 
     Electronic Mail Choice Act of 1997''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) The Internet is a worldwide network of information that 
     growing numbers of Americans use on a regular basis for 
     educational and personal activities.
       (2) Electronic mail messages transmitted on the Internet 
     constitute an increasing percentage of communications in the 
     United States.
       (3) Solicited commercial electronic mail is a useful and 
     cost-effective means for Americans to receive information 
     about a business and its products.
       (4) The number of transmissions of unsolicited commercial 
     electronic mail advertisements has grown exponentially over 
     the past several years as the technology for creating and 
     transmitting such advertisements in bulk has made the costs 
     of distribution of such advertisements minimal.
       (5) Individuals have available no effective means of 
     differentiating between unsolicited commercial electronic 
     mail advertisements and other Internet communications.
       (6) The transmitters of unsolicited commercial electronic 
     mail advertisements can easily move from State to State.
       (7) Individuals and businesses that receive unsolicited 
     commercial electronic mail advertisements often pay for the 
     costs of such receipt, including the costs of Internet access 
     and long distance telephone charges.
       (8) Unsolicited commercial electronic mail can be used to 
     advertise legitimate services and goods but is also used for 
     fraudulent and deceptive purposes in violation of Federal and 
     State law.
       (9) Individuals and companies that use unsolicited 
     commercial electronic mail for fraudulent and deceptive 
     purposes often use fraudulent identification information in 
     such electronic mail, making it impossible for a recipient to 
     request to be removed from the mailing list or for law 
     enforcement authorities to identify the sender.
       (10) The inability of recipients of unsolicited commercial 
     electronic mail to identify the senders of such electronic 
     mail or to prevent its receipt impedes the flow of commerce 
     and communication on the Internet and threatens the integrity 
     of commerce on the Internet.
       (11) Internet service providers are burdened by the cost of 
     equipment necessary to process unsolicited commercial 
     electronic mail.
       (12) To facilitate the development of commerce and 
     communication on the Internet, unsolicited commercial 
     electronic mail should be readily identifiable and filterable 
     by individuals and Internet service providers.

     SEC. 3. REQUIREMENTS RELATING TO TRANSMISSIONS OF UNSOLICITED 
                   COMMERCIAL ELECTRONIC MAIL.

       (a) Information on Advertisement.--
       (1) Requirement.--Unless otherwise authorized pursuant to a 
     provision of section 7, a person who transmits an electronic 
     mail message as part of the transmission of unsolicited 
     commercial electronic mail shall cause to appear in each 
     electronic mail message transmitted as part of such 
     transmission the information specified in paragraph (3).
       (2) Placement.--
       (A) Advertisement.--The information specified in 
     subparagraph (A) of paragraph (3) shall appear as the first 
     word of the subject line of the electronic mail message 
     without any prior text or symbol.
       (B) Other information.--The information specified in 
     subparagraph (B) of that paragraph shall appear prominently 
     in the body of the message.
       (3) Covered information.--The following information shall 
     appear in an electronic mail message under paragraph (1):
       (A) The term ``advertisement''.
       (B) The name, physical address, electronic mail address, 
     and telephone number of the person who initiates transmission 
     of the message.
       (b) Routing Information.--All Internet routing information 
     contained within or accompanying an electronic mail message 
     described in subsection (a) shall be valid according to the 
     prevailing standards for Internet protocols.
       (c) Effective Date.--The requirements in this section shall 
     take effect 30 days after the date of enactment of this Act.

     SEC. 4. FEDERAL REGULATION OF UNSOLICITED COMMERCIAL 
                   ELECTRONIC MAIL.

       (a) Transmissions.--
       (1) In general.--Upon notice from a person of the person's 
     receipt of electronic mail in violation of a provision of 
     section 3 or 7, the Commission--
       (A) may conduct an investigation to determine whether or 
     not the electronic mail was transmitted in violation of the 
     provision; and
       (B) if the Commission determines that the electronic mail 
     was transmitted in violation of the provision, may--
       (i) impose upon the person initiating the transmission a 
     civil fine in an amount not to exceed $11,000;
       (ii) commence in a district court of the United States a 
     civil action to recover a civil penalty in an amount not to 
     exceed $11,000 against the person initiating the 
     transmission; or
       (iii) both impose a fine under clause (i) and commence an 
     action under clause (ii).
       (2) Deadline.--The Commission may not take action under 
     paragraph (1)(B) with respect to a transmission of electronic 
     mail more than 2 years after the date of the transmission.
       (b) Administration.--
       (1) Notice by electronic means.--The Commission shall 
     establish an Internet web site with an electronic mail 
     address for the receipt of notices under subsection (a).
       (2) Information on enforcement.--The Commission shall make 
     available through the Internet web site established under 
     paragraph (2) information on the actions taken by the 
     Commission under subsection (a)(1)(B).
       (3) Assistance of federal communications commission.--The 
     Federal Communications Commission may assist the Commission 
     in carrying out its duties this section.

     SEC. 5. ACTIONS BY STATES.

       (a) In General.--Whenever an attorney general of any State 
     has reason to believe that the interests of the residents of 
     that State have been or are being threatened or adversely 
     affected because any person is engaging in a pattern or 
     practice of the transmission of electronic mail in violation 
     of a provision of section 3 or 7, the State, as parens 
     patriae, may bring a civil action on behalf of its residents 
     to enjoin such transmission, to enforce compliance with the 
     provision, to obtain damages or other compensation on behalf 
     of its residents, or to obtain such further and other relief 
     as the court considers appropriate.
       (b) Notice to Commission.--
       (1) Notice.--The State shall serve prior written notice of 
     any civil action under this section upon the Commission and 
     provide the Commission with a copy of its complaint, except 
     that if it is not feasible for the State to provide such 
     prior notice, the State shall serve written notice 
     immediately upon instituting such action.
       (2) Rights of commission.--Upon receiving a notice with 
     respect to a civil action under paragraph (1), the Commission 
     shall have the right--
       (A) to intervene in the action;
       (B) upon so intervening, to be heard in all matters arising 
     therein; and
       (C) to file petitions for appeal.
       (c) Actions by Commission.--Whenever a civil action has 
     been instituted by or on behalf of the Commission for 
     violation of a provision of section 3 or 7, no State may, 
     during the pendency of such action, institute a civil action 
     under this section against any defendant named in the 
     complaint in such action for violation of any provision as 
     alleged in the complaint.
       (d) Construction.--For purposes of bringing a civil action 
     under subsection (a), nothing in this section shall prevent 
     an attorney general from exercising the powers conferred on 
     the attorney general by the laws of the State concerned to 
     conduct investigations or to administer oaths or affirmations 
     or to compel the attendance of witnesses or the production of 
     documentary or other evidence.
       (e) Venue; Service of Process.--Any civil action brought 
     under subsection (a) in a district court of the United States 
     may be brought in the district in which the defendant is 
     found, is an inhabitant, or transacts business or wherever 
     venue is proper under section 1391 of title 28, United States 
     Code. Process in such an action may be served in any district 
     in which the defendant is an inhabitant or in which the 
     defendant may be found.
       (f) Actions by Other State Officials.--Nothing in this 
     section may be construed to prohibit an authorized State 
     official from proceeding in State court on the basis of an 
     alleged violation of any civil or criminal statute of the 
     State concerned.
       (g) Definition.--In this section, the term ``attorney 
     general'' means the chief legal officer of a State.

     SEC. 6. INTERNET SERVICE PROVIDERS.

       (a) Exemption for Certain Transmissions.--The provisions of 
     this Act shall not apply to a transmission of electronic mail 
     by an interactive computer service provider unless the 
     provider initiates the transmission.
       (b) Notice of Transmissions from Commission.--Not later 
     than 72 hours after receipt

[[Page S4881]]

     from the Commission of notice that its computer equipment may 
     have been used by another person to initiate a transmission 
     of electronic mail in violation of a provision of section 3 
     or 7, an interactive computer service provider shall--
       (1) provide the Commission such information as the 
     Commission requires in order to determine whether or not the 
     computer equipment of the provider was used to initiate the 
     transmission; and
       (2) if the Commission determines that the computer 
     equipment of the provider was used to initiate the 
     transmission, take appropriate actions to terminate the use 
     of its computer equipment by that person.
       (c) Notice of Transmissions from Private Individuals.--
       (1) In general.--Subject to paragraph (2), not later than 
     14 days after receipt from a private person of notice that 
     its computer equipment may have been used by another person 
     to initiate a transmission of electronic mail in violation of 
     a provision of section 3 or 7, an interactive computer 
     service provider shall--
       (A) transmit the notice to the Commission together with 
     such information as the Commission requires in order to 
     determine whether or not the computer equipment of the 
     provider was used to initiate the transmission; and
       (B) if the Commission determines that the computer 
     equipment of the provider was used to initiate the 
     transmission, take appropriate actions to terminate the use 
     of its computer equipment by that person.
       (2) Minimum notice requirement.--An interactive computer 
     service provider shall transmit a notice under paragraph (1) 
     with respect to a particular transmission of electronic mail 
     only if the provider receives notice with respect to the 
     transmission from more than 100 private persons.
       (d) Blocking Systems.--
       (1) Requirement.--Each interactive computer service 
     provider shall make available to subscribers to such service 
     a system permitting such subscribers, upon the affirmative 
     electronic request of such subscribers, to block the receipt 
     through such service of any electronic mail that contains the 
     term ``advertisement'' in its subject line.
       (2) Notice of availability.--Upon the applicability of this 
     subsection to an interactive computer service provider, the 
     provider shall--
       (A) notify each current subscriber, if any, to the service 
     of the blocking system provided for under paragraph (1); and
       (B) notify any new subscribers to the service of the 
     blocking system.
       (3) Blocking by provider.--An interactive computer service 
     provider may, upon its own initiative, block the receipt 
     through its service of any electronic mail that contains the 
     term ``advertisement'' in its subject line.
       (4) Applicability.--The requirements in paragraphs (1) and 
     (2) shall apply--
       (A) beginning 1 year after the date of enactment of this 
     Act, in the case of an interactive computer service provider 
     having more than 25,000 or more subscribers; and
       (B) beginning 2 years after that date, in the case of an 
     interactive computer service provider having less than 25,000 
     subscribers.
       (e) Records.--An interactive computer service provider 
     shall retain records of any action taken on a notice received 
     under this section for not less than 2 years after the date 
     of receipt of the notice.
       (f) Construction.--Nothing in this section may be construed 
     to require an interactive computer service provider to 
     transmit or otherwise deliver any electronic mail message 
     containing the term ``advertisement'' in its subject line.
       (g) Definition.--In this section, the term ``interactive 
     computer service provider'' has the meaning given that term 
     in section 230(e)(2) of the Communications Act of 1934 (47 
     U.S.C. 230(e)(2)).

     SEC. 7. RECEIPT OF TRANSMISSIONS BY PRIVATE PERSONS.

       (a) Termination of Transmissions.--
       (1) Request.--A person who receives a transmission of 
     unsolicited commercial electronic mail not otherwise 
     authorized under this section may request, by electronic mail 
     to the same electronic mail address from which the 
     transmission originated, the termination of transmissions of 
     such mail by the person initiating the transmission.
       (2) Deadline.--A person receiving a request for the 
     termination of transmissions of electronic mail under this 
     subsection shall cease initiating transmissions of electronic 
     mail to the person submitting the request not later than 48 
     hours after receipt of the request.
       (b) Affirmative Authorization of Transmissions Without 
     Information.--
       (1) In general.--Subject to paragraph (2), a person may 
     authorize another person to initiate transmissions to the 
     person of unsolicited commercial electronic mail without 
     inclusion in such transmissions of the information required 
     by section 3.
       (2) Termination.--
       (A) Notice.--A person initiating transmissions of 
     electronic mail under paragraph (1) shall include, with each 
     transmission of such mail to a person authorizing the 
     transmission under that paragraph, notice that the person 
     authorizing the transmission may request at any time the 
     recommencement of the inclusion in such transmissions of the 
     information required by section 3.
       (B) Deadline.--A person receiving a request under this 
     paragraph shall include the information required by section 3 
     in all transmissions of unsolicited commercial electronic 
     mail to the person making the request beginning not later 
     than 48 hours after receipt of the request.
       (c) Constructive Authorization of Transmissions Without 
     Information.--
       (1) In general.--Subject to paragraph (2), a person who 
     secures a good or service from, or otherwise responds 
     electronically to, an offer in a transmission of unsolicited 
     commercial electronic mail shall be deemed to have authorized 
     transmissions of such mail without inclusion of the 
     information required under section 3 from the person who 
     initiates the transmission providing the basis for such 
     authorization.
       (2) Termination.--
       (A) Request.--A person deemed to have authorized the 
     transmissions of electronic mail under paragraph (1) may 
     request at any time the recommencement of the inclusion in 
     such transmissions of the information required by section 3.
       (B) Deadline.--A person receiving a request under this 
     paragraph shall include the information required by section 3 
     in all transmissions of unsolicited commercial electronic 
     mail to the person making the request beginning not later 
     than 48 hours after receipt of the request.
       (d) Effective Date of Termination Requirements.--
     Subsections (a), (b)(2), and (c)(2) shall take effect 30 days 
     after the date of enactment of this Act.

     SEC. 8. ACTIONS BY PRIVATE PERSONS.

       (a) In General.--Any person adversely affected by a 
     violation of a provision of section 3 or 7, or an authorized 
     person acting on such person's behalf, may, within 1 year 
     after discovery of the violation, bring a civil action in a 
     district court of the United States against a person who has 
     violated the provision. Such an action may be brought to 
     enjoin the violation, to enforce compliance with the 
     provision, to obtain damages, or to obtain such further and 
     other relief as the court considers appropriate.
       (b) Damages.--
       (1) In general.--The amount of damages in an action under 
     this section for a violation specified in subsection (a) may 
     not exceed $5,000 per violation.
       (2) Relationship to other damages.--Damages awarded for a 
     violation under this subsection are in addition to any other 
     damages awardable for the violation under any other provision 
     of law.
       (c) Cost and Fees.--The court, in issuing any final order 
     in any action brought under subsection (a), may award costs 
     of suit and reasonable attorney fees and expert witness fees 
     for the prevailing party.
       (d) Venue; Service of Process.--Any civil action brought 
     under subsection (a) in a district court of the United States 
     may be brought in the district in which the defendant is 
     found, is an inhabitant, or transacts business or wherever 
     venue is proper under section 1391 of title 28, United States 
     Code. Process in such an action may be served in any district 
     in which the defendant is an inhabitant or in which the 
     defendant may be found.

     SEC. 9. RELATION TO STATE LAWS.

       (a) State Law Applicable Unless Inconsistent.--The 
     provisions of this Act do not annul, alter, or affect the 
     applicability to any person, or otherwise exempt from the 
     applicability to any person, of the laws of any State with 
     respect to the transmission of unsolicited commercial 
     electronic, except to the extent that those laws are 
     inconsistent with any provision of this Act, and then only to 
     the extent of the inconsistency.
       (b) Requirement Relating to Determination of 
     Inconsistency.--The Commission may not determine that a State 
     law is inconsistent with a provision of this Act if the 
     Commission determines that such law places greater 
     restrictions on the transmission of unsolicited commercial 
     electronic mail than are provided for under such provision.

     SEC. 10. DEFINITIONS.

       In this Act:
       (1) Commercial electronic mail.--The term ``commercial 
     electronic mail'' means any electronic mail that--
       (A) contains an advertisement for the sale of a product or 
     service;
       (B) contains a solicitation for the use of a toll-free 
     telephone number or a telephone number with a 900 prefix the 
     use of which connects the user to a person or service that 
     advertises the sale of or sells a product or service; or
       (C) contains a list of one or more Internet sites that 
     contain an advertisement referred to in subparagraph (A) or a 
     solicitation referred to in subparagraph (B).
       (2) Commission.--The term ``Commission'' means the Federal 
     Trade Commission.
       (3) State.--The term ``State'' means any State of the 
     United States, the District of Columbia, Puerto Rico, Guam, 
     American Samoa, the United States Virgin Islands, the 
     Commonwealth of the Northern Mariana Islands, the Republic of 
     the Marshall Islands, the Federated States of Micronesia, the 
     Republic of Palau, and any possession of the United States.
                                 ______