[Congressional Record Volume 147, Number 42 (Tuesday, March 27, 2001)]
[Senate]
[Pages S2995-S2999]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BURNS (for himself, Mr. Wyden, Mr. Lieberman, Ms. 
        Landrieu, Mr. Torricelli, Mr. Breaux, and Mr. Murkowski):
  S. 630. A bill to prohibit senders of unsolicited commercial 
electronic mail from disguising the source of their messages, to give 
consumers the choice to cease receiving a sender's unsolicited 
commercial electronic mail messages, and for other purposes; to the 
Committee on Commerce, Science, and Transportation.
  Mr. BURNS. Mr. President, 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. 630

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Controlling the Assault of 
     Non-Solicited Pornography

[[Page S2996]]

     and Marketing Act of 2001'', or the ''CAN SPAM Act of 2001''.

     SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.

       (a) Findings.--The Congress finds the following:
       (1) There is a right of free speech on the Internet.
       (2) The Internet has increasingly become a critical mode of 
     global communication and now presents unprecedented 
     opportunities for the development and growth of global 
     commerce and an integrated worldwide economy. 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.
       (3) Unsolicited commercial electronic mail can be a 
     mechanism through which businesses advertise and attract 
     customers in the online environment.
       (4) 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.
       (5) 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. The 
     sending of such mail is increasingly and negatively affecting 
     the quality of service provided to customers of Internet 
     access service, and shifting costs from the sender of the 
     advertisement to the provider of Internet access service and 
     the recipient.
       (6) While some senders of unsolicited commercial electronic 
     mail messages provide simple and reliable way 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.
       (7) 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.
       (8) 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.
       (9) Because recipients of unsolicited commercial electronic 
     mail are unable to avoid the receipt of such mail through 
     reasonable means, such mail may invade the privacy of 
     recipients.
       (10) The practice of sending unsolicited commercial 
     electronic mail is sufficiently profitable that senders of 
     such mail will not be unduly burdened by the costs associated 
     with providing an ``opt-out'' mechanism to recipients and 
     ensuring that recipients who exercise such opt-out do not 
     receive further messages from that sender.
       (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 assemble, free speech, and privacy.
       (b) Congressional Determination of Public Policy.--On the 
     basis of the findings in subsection (a), the Congress 
     determines that--
       (1) there is substantial government interest in regulation 
     of unsolicited commercial electronic mail;
       (2) senders of unsolicited commercial electronic mail 
     should not mislead recipients as to the source or content of 
     such mail; and
       (3) recipients of unsolicited commercial electronic mail 
     have a right to decline to receive additional unsolicited 
     commercial electronic mail from the same source.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Affirmative consent.--The term ``affirmative consent'', 
     when used with respect to a commercial electronic mail 
     message, means--
       (A) the message falls within the scope of an express and 
     unambiguous invitation or permission granted by the recipient 
     and not subsequently revoked;
       (B) the recipient had clear and conspicuous notice, at the 
     time such invitation or permission was granted, of--
       (i) the fact that the recipient was granting the invitation 
     or permission;
       (ii) the scope of the invitation or permission, including 
     what types of commercial electronic mail messages would be 
     covered by the invitation or permission and what senders or 
     types of senders, if any, other than the party to whom the 
     invitation or permission was communicated would be covered by 
     the invitation or permission; and
       (iii) a reasonable and effective mechanism for revoking the 
     invitation or permission; and
       (C) the recipient has not, after granting the invitation or 
     permission, submitted a request under section 5(a)(3) not to 
     receive unsolicited commercial electronic mail messages from 
     the sender of the message.
       (2) Commercial electronic mail message.--The term 
     ``commercial electronic mail message'' means any electronic 
     mail message the primary purpose of which is to advertise or 
     promote, for a commercial purpose, a commercial product or 
     service (including content on an Internet website). An 
     electronic mail message shall not be considered to be a 
     commercial electronic mail message solely because such 
     message includes a reference to a commercial entity that 
     serves to identify the sender or a reference or link to an 
     Internet website operated for a commercial purpose.
       (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.--
       (A) In general.--The term ``electronic mail address'' means 
     a destination (commonly expressed as a string of characters) 
     to which electronic mail can be sent or delivered.
       (B) Inclusion.--In the case of the Internet, the term 
     ``electronic mail address'' may include an electronic mail 
     address consisting of a 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'').
       (6) FTC act.--The term ``FTC Act'' means the Federal Trade 
     Commission Act (15 U.S.C. 41 et seq.).
       (7) Functioning return electronic mail address.--
       (A) The term ``functioning return electronic mail address'' 
     means a legitimately obtained electronic mail address, 
     clearly and conspicuously displayed in a commercial 
     electronic mail message, that--
       (i) remains capable of receiving messages for no less than 
     30 days after the transmission of such commercial electronic 
     mail message; and
       (ii) that has capacity reasonably calculated, in light of 
     the number of recipients of the commercial electronic mail 
     message, to enable it to receive the full expected quantity 
     of reply messages from such recipients.
       (B) An electronic mail address that meets the requirements 
     of subparagraph (A) shall not be excluded from this 
     definition because of a temporary inability to receive 
     electronic mail message due to technical problems, provided 
     steps are taken to correct such technical problems within a 
     reasonable time period.
       (8) Header information.--The term ``header information'' 
     means the source, destination, and routing information 
     attached to the beginning of an electronic mail message, 
     including the originating domain name and originating 
     electronic mail address.
       (9) Implied consent.--The term ``implied consent'', when 
     used with respect to a commercial electronic mail message, 
     means--
       (A) within the 5-year period ending upon receipt of such 
     message, there has been a business transaction between the 
     sender and the recipient (including a transaction involving 
     the provision, free of charge, of information, goods, or 
     services requested by the recipient); and
       (B) the recipient was, at the time of such transaction or 
     thereafter, 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.
       (10) Initiate.--The term ``initiate'', when used with 
     respect to a commercial electronic mail message, means to 
     originate such message, to procure the origination of such 
     message, or to assist in the origination of such message 
     through the provision or selection of addresses to which such 
     message will be sent, but shall not include actions that 
     constitute routine conveyance of such message. For purposes 
     of this Act, more than 1 person may be considered to have 
     initiated the same message.
       (11) Internet.--The term ``Internet'' has the meaning given 
     that term in the Internet Tax Freedom Act (Pub. L. 105-277, 
     Div. C, Title XI, Sec. 1101(e)(3)(c)).
       (12) Internet access service.--The term ``Internet access 
     service'' has the meaning given that term in section 
     231(e)(4) of the Communications Act of 1934 (47 U.S.C. 
     231(e)(4)).
       (13) Protected computer.--The term ``protected computer'' 
     has the meaning given that term in section 1030(e)(2) of 
     title 18, United States Code.
       (14) Recipient.--The term ``recipient'', when used with 
     respect to a commercial electronic mail message, means the 
     addressees of such message. If an address of a commercial 
     electronic mail message has 1 or more electronic mail 
     addresses in addition to the address to which the message was 
     addressed, the addressees shall be treated as a separate 
     recipient with respect to each such address.
       (15) Routine conveyance.--The term ``routine conveyance'' 
     means the transmission, routing, relaying, handling, or 
     storing, through an automatic technical process, of an 
     electronic mail message for which another person has 
     provided and selected the recipient addresses.
       (16) Sender.--The term ``sender'', when used with respect 
     to a commercial electronic mail message, means a person who 
     initiates such a message and whose product, service, or 
     Internet web site is advertised or promoted by the message, 
     but does not include any person, including a provider of 
     Internet access service, whose role with respect to the 
     message is limited to routine conveyance of the message.

[[Page S2997]]

       (17) Unsolicited commercial electronic mail message.--
       (A) In general.--The term ``unsolicited commercial 
     electronic mail message'' means any commercial electronic 
     mail message that is sent to a recipient--
       (i) without prior affirmative consent or implied consent 
     from the recipient; or
       (ii) to a recipient who, subsequent to the establishment of 
     affirmative or implied consent under subparagraph (i), has 
     expressed, in a reply submitted pursuant to section 5(a)(3), 
     or in response to any other opportunity the sender may have 
     provided to the recipient, a desire not to receive commercial 
     electronic mail messages from the sender.
       (B) Exclusion.--Notwithstanding subparagraph (A), the term 
     ``unsolicited commercial electronic mail message'' does not 
     include an electronic mail message sent by or on behalf of 
     one or more lawful owners of copyright, patent, publicity, or 
     trademark rights to an unauthorized user of protected 
     material notifying such user that the use is unauthorized and 
     requesting that the use be terminated or that permission for 
     such use be obtained from the rights holder or holders.

     SEC. 4. CRIMINAL PENALTY FOR UNSOLICITED COMMERCIAL 
                   ELECTRONIC MAIL CONTAINING FRAUDULENT ROUTING 
                   INFORMATION.

       (a) In General.--Chapter 63 of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 1348. UNSOLICITED COMMERCIAL ELECTRONIC MAIL 
                   CONTAINING FRAUDULENT TRANSMISSION INFORMATION

       ``(a) In General.--Any person who intentionally initiates 
     the transmission of any unsolicited commercial electronic 
     mail message to a protected computer in the United States 
     with knowledge that such message contains or is accompanied 
     by header information that is materially or intentionally 
     false or misleading shall be fined or imprisoned for not more 
     than 1 year, or both, under this title.
       ``(b) Definitions.--Any term used in subsection (a) that is 
     defined in section 3 of the Unsolicited Commercial Electronic 
     Mail Act of 2001 has the meaning giving 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:

``1348. Unsolicited commercial electronic mail containing fraudulent 
              routing information''.

     SEC. 5. OTHER PROTECTIONS AGAINST UNSOLICITED COMMERCIAL 
                   ELECTRONIC MAIL.

       (a) Requirements for Transmission of Messages.--
       (1) Prohibition of false or misleading transmission 
     information.--It shall be 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 misleading, or not legitimately obtained.
       (2) Prohibition of deceptive subject headings.--It shall be 
     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 is likely to 
     mislead the recipient about a material fact regarding the 
     contents or subject matter of the message.
       (3) Inclusion of return address in commercial electronic 
     mail.--It shall be unlawful for any person to initiate the 
     transmission of a commercial electronic mail message to a 
     protected computer unless such message contains a functioning 
     return electronic mail address to which a recipient may send 
     a reply to the sender to indicate a desire not to receive 
     further messages from that sender at the electronic mail 
     address at which the message was received.
       (4) Prohibtiion of transmission of unsolicited commercial 
     electronic mail after objection.--If a recipient makes a 
     request to a sender, through an electronic mail message sent 
     to an electronic mail address provided by the sender pursuant 
     to paragraph (3), not to receive further electronic mail 
     messages from that sender, it shall be unlawful for the 
     sender, or any person acting on behalf of the sender, to 
     initiate the transmission of an unsolicited commercial 
     electronic mail message to such a recipient within the United 
     States more than 10 days after receipt of such request.
       (5) Inclusion of identifier, opt-out, and physical address 
     in unsolicited commercial electronic mail.--It shall be 
     unlawful for any person to initiate the transmission of any 
     unsolicited commercial electronic mail message to a protected 
     computer unless the message provides, in a manner that is 
     clear and conspicuous to the recipient--
       (A) identification that the message is an advertisement or 
     solicitation;
       (B) 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) 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. 6. ENFORCEMENT.

       (a) Enforcement by Commission.--
       (1) In general.--Section 5 of this Act shall be enforced by 
     the Commission under the FTC Act. For purposes of such 
     Commission enforcement, a violation of section 5 of this Act 
     shall be treated as a violation of a rule under section 18 
     (15 U.S.C. 57a) of the FTC Act regarding unfair or deceptive 
     acts or practices.
       (2) Scope of commission enforcement authority.--
       (A) The Commission shall prevent any person from violating 
     section 5 of 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 FTC Act were 
     incorporated into and made a part of this section. Any person 
     who violates section 5 of this Act shall be subject to the 
     penalties and entitled the privileges and immunities provided 
     in the FTC 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 FTC Act were 
     incorporated into and made a part of this section.
       (B) Nothing in this Act shall be construed to give the 
     Commission authority over activities that are otherwise 
     outside the jurisdiction of the FTC Act.
       (b) Enforcement by Certain Other Agencies.--
       (1) In general.--Compliance with section 5 of this Act 
     shall be enforced under--
       (A) section 8 of the Federal Deposit Insurance Act (12 
     U.S.C. 1818), in the case of--
       (i) national banks, and Federal branches and Federal 
     agencies of foreign banks, by the Office of the Comptroller 
     of the Currency;
       (ii) 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, and 
     organizations operating under section 25 or 25A of the 
     Federal Reserve Act (12 U.S.C. 601 et seq. and 611 et seq.), 
     by the Federal Reserve Board; and
       (iii) banks insured by the Federal Deposit Insurance 
     Corporation (other than members of the Federal Reserve 
     System) and insured State branches of foreign banks, by the 
     Board of Directors of the Federal Deposit Insurance 
     Corporation;
       (B) section 8 of the Federal Deposit Insurance Act (12 
     U.S.C. 1818), by the Director of the Office of Thrift 
     Supervision, in the case of a savings association the 
     deposits of which are insured by the Federal Deposit 
     Insurance Corporation;
       (C) the Federal Credit Union Act (12 U.S.C. 1751 et seq.) 
     by the National Credit Union Administration Board with 
     respect to any Federal credit union;
       (D) 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;
       (E) 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;
       (F) 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
       (G) 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.
       (2) Exercise of certain powers.--For the purpose of the 
     exercise by any agency referred to in paragraph (1) of its 
     powers under any Act referred to in that paragraph, a 
     violation of section 5 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 paragraph (1), each of the 
     agencies referred to in that paragraph may exercise, for the 
     purpose of enforcing compliance with any requirement 
     imposed under section 5 of this Act, any other authority 
     conferred on it by law.
       (c) 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 that practice, 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.--For purposes of paragraph 
     (1)(B)(ii), the amount determined under this paragraph is the 
     smaller of--
       (A) the amount determined 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); or
       (B) $500,000.

     In determining the per-violation penalty under this 
     paragraph, the court shall take

[[Page S2998]]

     into account the degree of culpability, any history of prior 
     such conduct, ability to pay, effect on ability to continue 
     to do business, and such other matters as justice may 
     require.
       (3) Treble damages.--If the court finds that the defendant 
     committed the violation willfully and knowingly, the court 
     may increase the amount recoverable under paragraph (2) up to 
     threefold.
       (4) Attorney fees.--In the case of any successful action 
     under subparagraph (1), the State shall be awarded the costs 
     of the action and reasonable attorney fees as determined by 
     the court.
       (5) Notice.--
       (A) Pre-filing.--Before filing an action under paragraph 
     (1), an attorney general shall provide to the Commission--
       (i) written notice of that action; and
       (ii) a copy of the complaint for that action.
       (B) Contemporaneous.--If an attorney general determines 
     that it is not feasible to provide the notice required by 
     subparagraph (A) before filing the action, the notice and a 
     copy of the complaint shall be provided to the Commission 
     when the action is filed.
       (6) Intervention.--If the Commission receives notice under 
     paragraph (4), it--
       (A) may intervene in the action that is the subject of the 
     notice; and
       (B) shall have the right--
       (i) to be heard with respect to any matter that arises in 
     that action; and
       (ii) to file a petition for appeal.
       (7) 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.
       (8) 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.
       (9) 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.
       (d) 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 any 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.--For purposes of paragraph 
     (1)(B)(ii), the amount determined under this paragraph is the 
     smaller of--
       (A) the amount determined 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 treated 
     as a separate violation); or
       (B) $500,000.

     In determining the per-violation penalty under this 
     paragraph, the court shall take into account the degree of 
     culpability, any history of prior such conduct, ability to 
     pay, effect on ability to continue to do business, and such 
     other matters as justice may require.
       (3) Treble damages.--If the court finds that the defendant 
     committed the violation willfully and knowingly, the court 
     may increase the amount recoverable under paragraph (2) up to 
     threefold.
       (4) Attorney fees.--In any action brought pursuant to 
     paragraph (1), the court may, in its discretion, require an 
     undertaking for the payment of the costs of such action, and 
     assess reasonable costs, including reasonable attorneys' 
     fees, against any party.
       (5) Evidentiary presumption.--For purposes of an action 
     alleging a violation of section 5(a)(4) or 5(a)(5), a showing 
     that a recipient has submitted a complaint about a commercial 
     electronic mail message to an electronic mail address 
     maintained and publicized by the provider of Internet access 
     service for the purpose of receiving complaints about 
     unsolicited commercial electronic mail messages shall create 
     a rebuttable presumption that the message in question was 
     unsolicited within the meaning of this Act.
       (e) Affirmative Defense.--A person shall not be liable for 
     damages under subsection (c)(2) or (d)(2) if--
       (1) such person has established and implemented, with due 
     care, reasonable practices and procedures to effectively 
     prevent violations of section 5; and
       (2) any violation occurred despite good faith efforts to 
     maintain compliance with such practices and procedures.

     SEC. 7. EFFECT ON OTHER LAWS.

       (a) Federal Law.--Nothing in this Act shall be construed to 
     impair the enforcement of section 223 or 231 of the 
     Communications Act of 1934, 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.
       (b) State Law.--No State or local government may impose any 
     civil liability for commercial activities or actions in 
     interstate or foreign commerce in connection with an activity 
     or action described in section 5 of this Act that is 
     inconsistent with or more restrictive than the treatment of 
     such activities or actions under this Act, except that this 
     Act shall not preempt any civil action under--
       (1) State trespass, contract, or tort law; or
       (2) any provision of Federal, State, or local criminal law 
     or any civil remedy available under such law that relates to 
     acts of computer fraud perpetrated by means of the 
     unauthorized transmission of unsolicited commercial 
     electronic mail messages, provided that the mere sending of 
     unsolicited commercial electronic mail in a manner that 
     complies with this Act shall not constitute an act of 
     computer fraud for purposes of this subparagraph.

     SEC. 8. STUDY OF EFFECTS OF UNSOLICITED COMMERCIAL ELECTRONIC 
                   MAIL.

       Not later than 18 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.

     SEC. 9. SEPARABILITY.

       If any provision of this Act or the application thereof to 
     any person or circumstance is held invalid, the remainder of 
     this Act and the application of such provision to other 
     persons or circumstances shall not be affected.

     SEC. 10. EFFECTIVE DATE.

       The provisions of this Act shall take effect 120 days after 
     the date of the enactment of this Act.

  Mr. WYDEN. Mr. President, Internet communications are increasingly 
important to Americans' daily lives and business. However, as the 
public's reliance on online and Internet services continues to grow, so 
do the burdens and frustrations stemming from unwanted junk e-mail.
  This type of e-mail is commonly known as ``spam,'' and it isn't hard 
to see why. Getting spam e-mail in your in-box is a lot like getting 
its namesake lunchmeat in your lunchbox: You didn't order it, and you 
really can't tell where the stuff comes from.
  Until now, you also have been virtually powerless to stop it. The 
recipient has no opportunity to refuse to accept the message, and thus 
is forced to take the time and bear the costs of storing, accessing, 
reviewing, and deleting such unwanted e-mail. In short, spammers have 
all the power. A spammer can send a recipient whatever messages it 
wants, and the recipient has no choice but to deal with them.
  Technology is on the side of the spammer. E-mail technology enables 
spammers to send huge quantities of messages quickly and cheaply. With 
the stroke of a key, a spammer can let fly a torrent of tens or 
hundreds of thousands of identical e-mails at minimal cost. Such bulk 
spam can clog up the network, impairing Internet service for everyone. 
For example, back in December, an influx of millions of junk e-mails 
slowed Verizon's network to a crawl, causing delays of several hours 
for customers trying to send and receive messages.
  Spam affects Internet companies as well as end users. Internet 
service providers are the ones who have to deal directly with the 
traffic jams caused when bulk spam floods their networks. And when 
consumers become frustrated by the receipt of spam, the first place 
they turn to complain will be the Internet companies from whom they 
purchase service. Left unchecked, spam could have a significant impact 
on how consumers perceive and use Internet services and e-commerce.
  Because of this, Internet service providers have often played a major 
role in trying to shield their customers from spam. But the bottom line 
is that existing laws do not provide the tools to deal with the 
mounting problem of junk e-mail.
  That is why I am teaming up again today with my good friend Senator 
Burns to introduce the ``Controlling the Assault of Non-Solicited 
Pornography And Marketing Act,'' the CAN

[[Page S2999]]

SPAM Act, for short. This bipartisan legislation says that if you want 
to send unsolicited marketing e-mail, you've got to play by a set of 
rules, rules that allow consumers to see where the messages are coming 
from, and to tell the sender stop. The basic goal is simple: give the 
consumer more control.
  Specifically, our bill would require a sender of any marketing e-mail 
to include a working return address, so that the recipient can send a 
reply e-mail demanding not to receive any further messages. A spammer 
would be prohibited from sending further messages to a consumer that 
has told it to stop.
  The bill also would prohibit spammers from using falsified or 
deceptive headers or subject lines, so that consumers will be able to 
tell where their marketing e-mails are coming from.
  The bill includes strong enforcement provisions to ensure compliance. 
Spammers that intentionally disguise their identities would be subject 
to misdemeanor criminal penalties. The Federal Trade Commission would 
have authority to impose civil fines. State attorneys general would be 
able to bring suit on behalf of the citizens of their states. And 
Internet service providers would be able to bring suit to keep unlawful 
spam off of their networks. In all cases, particularly high penalties 
would be available for true ``bad actors''--the shady, high-volume 
spammers who have no intention of behaving in a lawful and responsible 
manner.
  Our goal here is not to discourage legitimate online communications 
with consumers. Senator Burns and I have no intention of interfering 
with a company's ability to use e-mail to inform customers of warranty 
information, provide account holders with monthly account statements, 
and so forth. Rather, we want to go after those unscrupulous 
individuals who use e-mail to annoy and mislead. I believe this bill 
strikes that important balance.
  Senator Burns and I have worked with a number of different groups in 
shaping this legislation, and we believe we have made real progress in 
addressing some concerns that were raised about the spam bill we 
proposed last year. We feel that the version of the bill we introduce 
today is a workable, common-sense approach. I am pleased that Senators 
Lieberman, Landrieu, Torricelli, Breaux, and Murkowski are cosponsoring 
this bill today, and I look forward to working with them and the rest 
of my Senate colleagues to see that the bill moves forward as quickly 
as possible.
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