[Congressional Record Volume 149, Number 58 (Thursday, April 10, 2003)]
[Senate]
[Pages S5204-S5208]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  By Mr. BURNS (for himself, Mr. Wyden, Mr. Stevens, Mr. Breaux, Mr. 
                Thomas, Ms. Landrieu, and Mr. Schumer):

  S. 877. A bill to regulate interstate commerce by imposing 
limitations and penalties on the transmission of unsolicited commercial 
electronic mail via the Internet; to the Committee on Commerce, 
Science, and Transportation.
  Mr. BURNS. Thank you, Mr. President. I rise today to introduce the 
CAN-SPAM bill along with my good friend and colleague Senator Wyden. 
The CAN-SPAM bill addresses an issue of critical importance to the 
further development of commerce on the Internet: how to control the 
explosion of unsolicited commercial e-mail. I also want to thank the 
additional original cosponsors of the bill, Senator Stevens, Senator 
Breaux, Senator Thomas, Senator Landrieu and Senator Schumer.
  While it is obvious to anyone with an e-mail account that the scourge 
of ``spam'' has continued to worsen, the numbers and the trends they 
represent paint an even more disturbing picture. According to an 
article in the Washington Post less than a month ago, spam currently 
accounts for 40 percent of all e-mail traffic. Spam has become more 
than just an inconvenience that we have learned to live with; it has 
now become a fundamental part of any e-mail inbox with serious economic 
consequences. According to one study done by a consulting group, spam 
will cost U.S. businesses more than $10 billion this year alone.
  Spam also makes working on the Internet less efficient, by clogging 
up servers on one end and inboxes on the other. I want some 
accountability brought to bear on this issue, and feel that by 
introducing this legislation today, we have taken an appropriate and 
meaningful step to tame a horse we can't seem to break just yet. This 
problem continues to escalate, and experts warn that more than half of 
e-mail traffic will be spam by this summer. This point bears repeating: 
within months, you will waste more than half of your time with 
unsolicited e-mail.
  The CAN-SPAM bill would require e-mail marketers to comply with a 
straightforward set of workable, common-sense rules designed to give 
consumers more control over spam. Specifically, the bill would require 
a sender of marketing e-mail to include a clear and conspicuous ``opt-
out'' mechanism so that they could ``unsubscribe'' from further 
unwanted e-mail. Also, the bill would prohibit e-mail marketers from 
using deceptive headers or subject lines, so that consumers will be 
able to tell who initiated the solicitation.
  The bill includes strong enforcement provisions to ensure compliance. 
The Federal Trade Commission would have authority to impose steep civil 
fines of up to $500,000 on spammers. This fine could be tripled if the 
violation is found to be intentional. In short, this bill provides 
broad consumer protection against bad actors, while still allowing 
Internet advertising a justified means of flourishing.
  Spamming is a serious economic problem and I believe it is absolutely 
critical that we address this now, so that the Internet is allowed to 
reach its full potential. Because of the vast distances in Montana, 
many of my constituents are forced to pay long-distance charges for 
their time on the Internet. Spam makes it nearly impossible for these 
people to enjoy the experience, and it makes it even harder for them to 
see how this will help rural America flourish in the 21st century. 
Also, Internet service providers are bombarded with spam that often 
corrupts or shuts down their systems. In today's information age where 
beating the competitor to the next sale is absolutely critical to 
survival, these shutdowns can cause real economic damage. We may be in 
a downturn in the American economy and especially in the high 
technology sector, but the efficiencies created through vast 
information sharing are here to stay and will help propel our economy 
to levels beyond our imagination, but in order to reach this potential 
we must eliminate the bad actors who threaten these efficiencies.
  The fact that this bill is strongly supported by pillars of the 
Internet age such as Yahoo, America Online and eBay is a testament to 
its common-sense approach. I think these companies for their critical 
expertise in perfecting this bill which would help to address this 
scourge of the digital age. I also appreciate the numerous valuable 
suggestions from the many concerned cyber-citizens who want to see this 
Pandora's box of digital dreck closed once and for all.
  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. 877

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Controlling the Assault of 
     Non-Solicited Pornography and Marketing Act of 2003'', or the 
     ``CAN-SPAM Act of 2003''.

     SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.

       (a) Findings.--The Congress finds the following:
       (1) There is a right of free speech on the Internet.
       (2) The Internet has increasingly become a critical mode of 
     global communication and now presents unprecedented 
     opportunities for the development and growth of global 
     commerce and an integrated worldwide economy.
       (3) In order for global commerce on the Internet to reach 
     its full potential, individuals and entities using the 
     Internet and other online services should be prevented from 
     engaging in activities that prevent other users and Internet 
     service providers from having a reasonably predictable, 
     efficient, and economical online experience.
       (4) Unsolicited commercial electronic mail can be a 
     mechanism through which businesses advertise and attract 
     customers in the online environment.
       (5) The receipt of unsolicited commercial electronic mail 
     may result in costs to recipients who cannot refuse to accept 
     such mail and who incur costs for the storage of such mail, 
     or for the time spent accessing, reviewing, and discarding 
     such mail, or for both.
       (6) Unsolicited commercial electronic mail may impose 
     significant monetary costs on providers of Internet access 
     services, businesses, and educational and nonprofit 
     institutions that carry and receive such mail, as there is a 
     finite volume of mail that such providers, businesses, and 
     institutions can handle without further investment in 
     infrastructure.
       (7) Some unsolicited commercial electronic mail contains 
     material that many recipients may consider vulgar or 
     pornographic in nature.
       (8) While some senders of unsolicited commercial electronic 
     mail messages provide simple and reliable ways for recipients 
     to reject (or ``opt-out'' of) receipt of unsolicited 
     commercial electronic mail from such senders in the future, 
     other senders provide no

[[Page S5205]]

     such ``opt-out'' mechanism, or refuse to honor the requests 
     of recipients not to receive electronic mail from such 
     senders in the future, or both.
       (9) An increasing number of senders of unsolicited 
     commercial electronic mail purposefully disguise the source 
     of such mail so as to prevent recipients from responding to 
     such mail quickly and easily.
       (10) An increasing number of senders of unsolicited 
     commercial electronic mail purposefully include misleading 
     information in the message's subject lines in order to induce 
     the recipients to view the messages.
       (11) In legislating against certain abuses on the Internet, 
     Congress should be very careful to avoid infringing in any 
     way upon constitutionally protected rights, including the 
     rights of assembly, free speech, and privacy.
       (b) Congressional Determination of Public Policy.--On the 
     basis of the findings in subsection (a), the Congress 
     determines that--
       (1) there is a substantial government interest in 
     regulation of unsolicited commercial electronic mail;
       (2) senders of unsolicited commercial electronic mail 
     should not mislead recipients as to the source or content of 
     such mail; and
       (3) recipients of unsolicited commercial electronic mail 
     have a right to decline to receive additional unsolicited 
     commercial electronic mail from the same source.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Affirmative consent.--The term ``affirmative consent'', 
     when used with respect to a commercial electronic mail 
     message, means that the recipient has expressly consented to 
     receive the message, either in response to a clear and 
     conspicuous request for such consent or at the recipient's 
     own initiative.
       (2) Commercial electronic mail message.--
       (A) In general.--The term ``commercial electronic mail 
     message'' means any electronic mail message the primary 
     purpose of which is the commercial advertisement or promotion 
     of a commercial product or service (including content on an 
     Internet website operated for a commercial purpose).
       (B) Reference to company or website.--The inclusion of a 
     reference to a commercial entity or a link to the website of 
     a commercial entity in an electronic mail message does not, 
     by itself, cause such message to be treated as a commercial 
     electronic mail message for purposes of this Act if the 
     contents or circumstances of the message indicate a primary 
     purpose other than commercial advertisement or promotion of a 
     commercial product or service.
       (3) Commission.--The term ``Commission'' means the Federal 
     Trade Commission.
       (4) Domain name.--The term ``domain name'' means any 
     alphanumeric designation which is registered with or assigned 
     by any domain name registrar, domain name registry, or other 
     domain name registration authority as part of an electronic 
     address on the Internet.
       (5) Electronic mail address.--The term ``electronic mail 
     address'' means a destination, commonly expressed as a string 
     of characters, consisting of a unique user name or mailbox 
     (commonly referred to as the ``local part'') and a reference 
     to an Internet domain (commonly referred to as the ``domain 
     part''), to which an electronic mail message can be sent or 
     delivered.
       (6) Electronic mail message.--The term ``electronic mail 
     message'' means a message sent to an electronic mail address.
       (7) FTC act.--The term ``FTC Act'' means the Federal Trade 
     Commission Act (15 U.S.C. 41 et seq.).
       (8) Header information.--The term ``header information'' 
     means the source, destination, and routing information 
     attached to an electronic mail message, including the 
     originating domain name and originating electronic mail 
     address.
       (9) Implied consent.--The term ``implied consent'', when 
     used with respect to a commercial electronic mail message, 
     means that--
       (A) within the 3-year period ending upon receipt of such 
     message, there has been a business transaction between the 
     sender and the recipient (including a transaction involving 
     the provision, free of charge, of information, goods, or 
     services requested by the recipient); and
       (B) the recipient was, at the time of such transaction or 
     thereafter in the first electronic mail message received from 
     the sender after the effective date of this Act, provided a 
     clear and conspicuous notice of an opportunity not to receive 
     unsolicited commercial electronic mail messages from the 
     sender and has not exercised such opportunity.

     If a sender operates through separate lines of business or 
     divisions and holds itself out to the recipient, both at the 
     time of the transaction described in subparagraph (A) and at 
     the time the notice under subparagraph (B) was provided to 
     the recipient, as that particular line of business or 
     division rather than as the entity of which such line of 
     business or division is a part, then the line of business or 
     the division shall be treated as the sender for purposes of 
     this paragraph.
       (10) Initiate.--The term ``initiate'', when used with 
     respect to a commercial electronic mail message, means to 
     originate such message or to procure the origination of such 
     message, but shall not include actions that constitute 
     routine conveyance of such message.
       (11) Internet.--The term ``Internet'' has the meaning given 
     that term in the Internet Tax Freedom Act (47 U.S.C. 151 nt).
       (12) Internet access service.--The term ``Internet access 
     service'' has the meaning given that term in section 
     231(e)(4) of the Communications Act of 1934 (47 U.S.C. 
     231(e)(4)).
       (13) Protected computer.--The term ``protected computer'' 
     has the meaning given that term in section 1030(e)(2) of 
     title 18, United States Code.
       (14) Recipient.--The term ``recipient'', when used with 
     respect to a commercial electronic mail message, means an 
     authorized user of the electronic mail address to which the 
     message was sent or delivered. If a recipient of a commercial 
     electronic mail message has 1 or more electronic mail 
     addresses in addition to the address to which the message was 
     sent or delivered, the recipient shall be treated as a 
     separate recipient with respect to each such address. If an 
     electronic mail address is reassigned to a new user, the new 
     user shall not be treated as a recipient of any commercial 
     electronic mail message sent or delivered to that address 
     before it was reassigned.
       (15) Routine conveyance.--The term ``routine conveyance'' 
     means the transmission, routing, relaying, handling, or 
     storing, through an automatic technical process, of an 
     electronic mail message for which another person has provided 
     and selected the recipient addresses.
       (16) Sender.--The term ``sender'', when used with respect 
     to a commercial electronic mail message, means a person who 
     initiates such a message and whose product, service, or 
     Internet web site is advertised or promoted by the message.
       (17) Transactional or relationship messages.--The term 
     ``transactional or relationship message'' means an electronic 
     mail message the primary purpose of which is to facilitate, 
     complete, confirm, provide, or request information 
     concerning--
       (A) a commercial transaction that the recipient has 
     previously agreed to enter into with the sender;
       (B) an existing commercial relationship, formed with or 
     without an exchange of consideration, involving the ongoing 
     purchase or use by the recipient of products or services 
     offered by the sender; or
       (C) an existing employment relationship or related benefit 
     plan.
       (18) Unsolicited commercial electronic mail message.--The 
     term ``unsolicited commercial electronic mail message'' means 
     any commercial electronic mail message that--
       (A) is not a transactional or relationship message; and
       (B) is sent to a recipient without the recipient's prior 
     affirmative or implied consent.

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

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

     ``Sec.  1351. Unsolicited commercial electronic mail 
       containing fraudulent transmission information

       ``(a) In General.--Any person who initiates the 
     transmission, to a protected computer in the United States, 
     of an unsolicited commercial electronic mail message, with 
     knowledge and intent that the message contains or is 
     accompanied by header information that is materially false or 
     materially misleading shall be fined or imprisoned for not 
     more than 1 year, or both, under this title. For purposes of 
     this subsection, header information that is technically 
     accurate but includes an originating electronic mail address 
     the access to which for purposes of initiating the message 
     was obtained by means of false or fraudulent pretenses or 
     representations shall be considered materially misleading.
       ``(b) Definitions.--Any term used in subsection (a) that is 
     defined in section 3 of the CAN-SPAM Act of 2003 has the 
     meaning given it in that section.''.
       (b) Conforming Amendment.--The chapter analysis for chapter 
     63 of title 18, United States Code, is amended by adding at 
     the end the following:

``1351. Unsolicited commercial electronic mail containing fraudulent 
              routing information''.

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

       (a) Requirements for Transmission of Messages.--
       (1) Prohibition of false or misleading transmission 
     information.--It is unlawful for any person to initiate the 
     transmission, to a protected computer, of a commercial 
     electronic mail message that contains, or is accompanied by, 
     header information that is materially or intentionally false 
     or materially or intentionally misleading. For purposes of 
     this paragraph, header information that is technically 
     accurate but includes an originating electronic mail address 
     the access to which for purposes of initiating the message 
     was obtained by means of false or fraudulent pretenses or 
     representations shall be considered materially misleading.
       (2) Prohibition of deceptive subject headings.--It is 
     unlawful for any person to initiate the transmission to a 
     protected computer of a commercial electronic mail message 
     with a subject heading that such person

[[Page S5206]]

     knows would be likely to mislead a recipient, acting 
     reasonably under the circumstances, about a material fact 
     regarding the contents or subject matter of the message.
       (3) Inclusion of return address or comparable mechanism in 
     unsolicited commercial electronic mail.--
       (A) In general.--It is unlawful for any person to initiate 
     the transmission to a protected computer of an unsolicited 
     commercial electronic mail message that does not contain a 
     functioning return electronic mail address or other Internet-
     based mechanism, clearly and conspicuously displayed, that--
       (i) a recipient may use to submit, in a manner specified by 
     the sender, a reply electronic mail message or other form of 
     Internet-based communication requesting not to receive any 
     future unsolicited commercial electronic mail messages from 
     that sender at the electronic mail address where the message 
     was received; and
       (ii) remains capable of receiving such messages or 
     communications for no less than 30 days after the 
     transmission of the original message.
       (B) More detailed options possible.--The sender of an 
     unsolicited commercial electronic mail message may comply 
     with subparagraph (A)(i) by providing the recipient a list or 
     menu from which the recipient may choose the specific types 
     of commercial electronic mail messages the recipient wants to 
     receive or does not want to receive from the sender, if the 
     list or menu includes an option under which the recipient may 
     choose not to receive any unsolicited commercial electronic 
     mail messages from the sender.
       (C) Temporary inability to receive messages or process 
     requests.--A return electronic mail address or other 
     mechanism does not fail to satisfy the requirements of 
     subparagraph (A) if it is unexpectedly and temporarily unable 
     to receive messages or process requests due to technical or 
     capacity problems, if the problem with receiving messages or 
     processing requests is corrected within a reasonable time 
     period.
       (4) Prohibition of transmission of unsolicited commercial 
     electronic mail after objection.--If a recipient makes a 
     request to a sender, using a mechanism provided pursuant to 
     paragraph (3), not to receive some or any unsolicited 
     commercial electronic mail messages from such sender, then it 
     is unlawful--
       (A) for the sender to initiate the transmission to the 
     recipient, more than 10 business days after the receipt of 
     such request, of an unsolicited commercial electronic mail 
     message that falls within the scope of the request;
       (B) for any person acting on behalf of the sender to 
     initiate the transmission to the recipient, more than 10 
     business days after the receipt of such request, of an 
     unsolicited commercial electronic mail message that such 
     person knows or consciously avoids knowing falls within the 
     scope of the request; or
       (C) for any person acting on behalf of the sender to assist 
     in initiating the transmission to the recipient, through the 
     provision or selection of addresses to which the message will 
     be sent, of an unsolicited commercial electronic mail message 
     that the person knows, or consciously avoids knowing, would 
     violate subparagraph (A) or (B).
       (5) Inclusion of identifier, opt-out, and physical address 
     in unsolicited commercial electronic mail.--It is unlawful 
     for any person to initiate the transmission of any 
     unsolicited commercial electronic mail message to a protected 
     computer unless the message provides--
       (A) clear and conspicuous identification that the message 
     is an advertisement or solicitation;
       (B) clear and conspicuous notice of the opportunity under 
     paragraph (3) to decline to receive further unsolicited 
     commercial electronic mail messages from the sender; and
       (C) a valid physical postal address of the sender.
       (b) Prohibition of Transmission of Unlawful Unsolicited 
     Commercial Electronic Mail to Certain Harvested Electronic 
     Mail Addresses.--
       (1) In general.--It is unlawful for any person to initiate 
     the transmission, to a protected computer, of an unsolicited 
     commercial electronic mail message that is unlawful under 
     subsection (a), or to assist in the origination of such a 
     message through the provision or selection of addresses to 
     which the message will be sent, if such person knows that, or 
     acts with reckless disregard as to whether--
       (A) the electronic mail address of the recipient was 
     obtained, using an automated means, from an Internet website 
     or proprietary online service operated by another person; or
       (B) the website or proprietary online service from which 
     the address was obtained included, at the time the address 
     was obtained, a notice stating that the operator of such a 
     website or proprietary online service will not give, sell, or 
     otherwise transfer addresses maintained by such site or 
     service to any other party for the purpose of initiating, or 
     enabling others to initiate, unsolicited electronic mail 
     messages.
       (2) Disclaimer.--Nothing in this subsection creates an 
     ownership or proprietary interest in such electronic mail 
     addresses.
       (c) Compliance Procedures.--An action for violation of 
     paragraph (2), (3), (4), or (5) of subsection (a) may not 
     proceed if the person against whom the action is brought 
     demonstrates that --
       (1) the person has established and implemented, with due 
     care, reasonable practices and procedures to effectively 
     prevent violations of such paragraph; and
       (2) the violation occurred despite good faith efforts to 
     maintain compliance with such practices and procedures.

     SEC. 6. ENFORCEMENT BY FEDERAL TRADE COMMISSION.

       (a) Violation Is Unfair or Deceptive Act or Practice.--
     Except as provided in subsection (b), this Act shall be 
     enforced by the Commission as if the violation of this Act 
     were an unfair or deceptive act or practice proscribed under 
     section 18(a)(1)(B) of the Federal Trade Commission Act (15 
     U.S.C. 57a(a)(1)(B)).
       (b) Enforcement by Certain Other Agencies.--Compliance with 
     this Act shall be enforced--
       (1) under section 8 of the Federal Deposit Insurance Act 
     (12 U.S.C. 1818), in the case of--
       (A) national banks, and Federal branches and Federal 
     agencies of foreign banks, and any subsidiaries of such 
     entities (except brokers, dealers, persons providing 
     insurance, investment companies, and investment advisers), by 
     the Office of the Comptroller of the Currency;
       (B) member banks of the Federal Reserve System (other than 
     national banks), branches and agencies of foreign banks 
     (other than Federal branches, Federal agencies, and insured 
     State branches of foreign banks), commercial lending 
     companies owned or controlled by foreign banks, organizations 
     operating under section 25 or 25A of the Federal Reserve Act 
     (12 U.S.C. 601 and 611), and bank holding companies and their 
     nonbank subsidiaries or affiliates (except brokers, dealers, 
     persons providing insurance, investment companies, and 
     investment advisers), by the Board;
       (C) banks insured by the Federal Deposit Insurance 
     Corporation (other than members of the Federal Reserve 
     System) insured State branches of foreign banks, and any 
     subsidiaries of such entities (except brokers, dealers, 
     persons providing insurance, investment companies, and 
     investment advisers), by the Board of Directors of the 
     Federal Deposit Insurance Corporation; and
       (D) savings associations the deposits of which are insured 
     by the Federal Deposit Insurance Corporation, and any 
     subsidiaries of such savings associations (except brokers, 
     dealers, persons providing insurance, investment companies, 
     and investment advisers), by the Director of the Office of 
     Thrift Supervision;
       (2) under the Federal Credit Union Act (12 U.S.C. 1751 et 
     seq.) by the Board of the National Credit Union 
     Administration with respect to any Federally insured credit 
     union, and any subsidiaries of such a credit union;
       (3) under the Securities Exchange Act of 1934 (15 U.S.C. 
     78a et seq.) by the Securities and Exchange Commission with 
     respect to any broker or dealer;
       (4) under the Investment Company Act of 1940 (15 U.S.C. 
     80a-1 et seq.) by the Securities and Exchange Commission with 
     respect to investment companies;
       (5) under the Investment Advisers Act of 1940 (15 U.S.C. 
     80b-1 et seq.) by the Securities and Exchange Commission with 
     respect to investment advisers registered under that Act;
       (6) under State insurance law in the case of any person 
     engaged in providing insurance, by the applicable State 
     insurance authority of the State in which the person is 
     domiciled, subject to section 104 of the Gramm-Bliley-Leach 
     Act (15 U.S.C. 6701);
       (7) under part A of subtitle VII of title 49, United States 
     Code, by the Secretary of Transportation with respect to any 
     air carrier or foreign air carrier subject to that part;
       (8) under the Packers and Stockyards Act, 1921 (7 U.S.C. 
     181 et seq.) (except as provided in section 406 of that Act 
     (7 U.S.C. 226, 227)), by the Secretary of Agriculture with 
     respect to any activities subject to that Act;
       (9) under the Farm Credit Act of 1971 (12 U.S.C. 2001 et 
     seq.) by the Farm Credit Administration with respect to any 
     Federal land bank, Federal land bank association, Federal 
     intermediate credit bank, or production credit association; 
     and
       (10) under the Communications Act of 1934 (47 U.S.C. 151 et 
     seq.) by the Federal Communications Commission with respect 
     to any person subject to the provisions of that Act.
       (c) Exercise of Certain Powers.--For the purpose of the 
     exercise by any agency referred to in subsection (b) of its 
     powers under any Act referred to in that subsection, a 
     violation of this Act is deemed to be a violation of a 
     requirement imposed under that Act. In addition to its powers 
     under any provision of law specifically referred to in 
     subsection (b), each of the agencies referred to in that 
     subsection may exercise, for the purpose of enforcing 
     compliance with any requirement imposed under this Act, any 
     other authority conferred on it by law.
       (d) Actions by the Commission.--The Commission shall 
     prevent any person from violating this Act in the same 
     manner, by the same means, and with the same jurisdiction, 
     powers, and duties as though all applicable terms and 
     provisions of the Federal Trade Commission Act (15 U.S.C. 41 
     et seq.) were incorporated into and made a part of this Act. 
     Any entity that violates any provision of that subtitle is 
     subject to the penalties

[[Page S5207]]

     and entitled to the privileges and immunities provided in the 
     Federal Trade Commission Act in the same manner, by the same 
     means, and with the same jurisdiction, power, and duties as 
     though all applicable terms and provisions of the Federal 
     Trade Commission Act were incorporated into and made a part 
     of that subtitle.
       (e) Enforcement by States.--
       (1) Civil action.--In any case in which the attorney 
     general of a State has reason to believe that an interest of 
     the residents of that State has been or is threatened or 
     adversely affected by any person engaging in a practice that 
     violates section 5 of this Act, the State, as parens patriae, 
     may bring a civil action on behalf of the residents of the 
     State in a district court of the United States of appropriate 
     jurisdiction or in any other court of competent 
     jurisdiction--
       (A) to enjoin further violation of section 5 of this Act by 
     the defendant; or
       (B) to obtain damages on behalf of residents of the State, 
     in an amount equal to the greater of--
       (i) the actual monetary loss suffered by such residents; or
       (ii) the amount determined under paragraph (2).
       (2) Statutory damages.--
       (A) In general.--For purposes of paragraph (1)(B)(ii), the 
     amount determined under this paragraph is the amount 
     calculated by multiplying the number of willful, knowing, or 
     negligent violations by an amount, in the discretion of the 
     court, of up to $10 (with each separately addressed unlawful 
     message received by such residents treated as a separate 
     violation). In determining the per-violation penalty under 
     this subparagraph, the court shall take into account the 
     degree of culpability, any history of prior such conduct, 
     ability to pay, the extent of economic gain resulting from 
     the violation, and such other matters as justice may require.
       (B) Limitation.--For any violation of section 5 (other than 
     section 5(a)(1)), the amount determined under subparagraph 
     (A) may not exceed $500,000, except that if the court finds 
     that the defendant committed the violation willfully and 
     knowingly, the court may increase the limitation established 
     by this paragraph from $500,000 to an amount not to exceed 
     $1,500,000.
       (3) Attorney fees.--In the case of any successful action 
     under paragraph (1), the State shall be awarded the costs of 
     the action and reasonable attorney fees as determined by the 
     court.
       (4) Rights of Federal regulators.--The State shall serve 
     prior written notice of any action under paragraph (1) upon 
     the Federal Trade Commission or the appropriate Federal 
     regulator determined under subsection (b) and provide the 
     Commission or appropriate Federal regulator with a copy of 
     its complaint, except in any case in which such prior notice 
     is not feasible, in which case the State shall serve such 
     notice immediately upon instituting such action. The Federal 
     Trade Commission or appropriate Federal regulator shall have 
     the right--
       (A) to intervene in the action;
       (B) upon so intervening, to be heard on all matters arising 
     therein;
       (C) to remove the action to the appropriate United States 
     district court; and
       (D) to file petitions for appeal.
       (5) Construction.--For purposes of bringing any civil 
     action under paragraph (1), nothing in this Act shall be 
     construed to prevent an attorney general of a State from 
     exercising the powers conferred on the attorney general by 
     the laws of that State to--
       (A) conduct investigations;
       (B) administer oaths or affirmations; or
       (C) compel the attendance of witnesses or the production of 
     documentary and other evidence.
       (6) Venue; service of process.--
       (A) Venue.--Any action brought under paragraph (1) may be 
     brought in the district court of the United States that meets 
     applicable requirements relating to venue under section 1391 
     of title 28, United States Code.
       (B) Service of process.--In an action brought under 
     paragraph (1), process may be served in any district in which 
     the defendant--
       (i) is an inhabitant; or
       (ii) maintains a physical place of business.
       (7) Limitation on state action while federal action is 
     pending.--If the Commission or other appropriate Federal 
     agency under subsection (b) has instituted a civil action or 
     an administrative action for violation of this Act, no State 
     attorney general may bring an action under this subsection 
     during the pendency of that action against any defendant 
     named in the complaint of the Commission or the other agency 
     for any violation of this Act alleged in the complaint.
       (f) Action by Provider of Internet Access Service.--
       (1) Action authorized.--A provider of Internet access 
     service adversely affected by a violation of section 5 may 
     bring a civil action in any district court of the United 
     States with jurisdiction over the defendant, or in any other 
     court of competent jurisdiction, to--
       (A) enjoin further violation by the defendant; or
       (B) recover damages in an amount equal to the greater of--
       (i) actual monetary loss incurred by the provider of 
     Internet access service as a result of such violation; or
       (ii) the amount determined under paragraph (2).
       (2) Statutory damages.--
       (A) In general.--For purposes of paragraph (1)(B)(ii), the 
     amount determined under this paragraph is the amount 
     calculated by multiplying the number of willful, knowing, or 
     negligent violations by an amount, in the discretion of the 
     court, of up to $10 (with each separately addressed unlawful 
     message carried over the facilities of the provider of 
     Internet access service or sent to an electronic mail address 
     obtained from the provider of Internet access service in 
     violation of section 5(b) treated as a separate violation). 
     In determining the per-violation penalty under this 
     subparagraph, the court shall take into account the degree of 
     culpability, any history of prior such conduct, ability to 
     pay, the extent of economic gain resulting from the 
     violation, and such other matters as justice may require.
       (B) Limitation.--For any violation of section 5 (other than 
     section 5(a)(1)), the amount determined under subparagraph 
     (A) may not exceed $500,000, except that if the court finds 
     that the defendant committed the violation willfully and 
     knowingly, the court may increase the limitation established 
     by this paragraph from $500,000 to an amount not to exceed 
     $1,500,000.
       (3) Attorney fees.--In any action brought pursuant to 
     paragraph (1), the court may, in its discretion, require an 
     undertaking for the payment of the costs of such action, and 
     assess reasonable costs, including reasonable attorneys' 
     fees, against any party.

     SEC. 7. EFFECT ON OTHER LAWS.

       (a) Federal Law.--
       (1) Nothing in this Act shall be construed to impair the 
     enforcement of section 223 or 231 of the Communications Act 
     of 1934 (47 U.S.C. 223 or 231, respectively), chapter 71 
     (relating to obscenity) or 110 (relating to sexual 
     exploitation of children) of title 18, United States Code, or 
     any other Federal criminal statute.
       (2) Nothing in this Act shall be construed to affect in any 
     way the Commission's authority to bring enforcement actions 
     under FTC Act for materially false or deceptive 
     representations in commercial electronic mail messages.
       (b) State Law.--
       (1) In general.--This Act supersedes any State or local 
     government statute, regulation, or rule regulating the use of 
     electronic mail to send commercial messages.
       (2) Exceptions.--Except as provided in paragraph (3), this 
     Act does not supersede or pre-empt--
       (A) State trespass, contract, or tort law or any civil 
     action thereunder; or
       (B) any provision of Federal, State, or local criminal law 
     or any civil remedy available under such law that relates to 
     acts of fraud or theft perpetrated by means of the 
     unauthorized transmission of commercial electronic mail 
     messages.
       (3) Limitation on exceptions.--Paragraph (2) does not apply 
     to a State or local government statute, regulation, or rule 
     that directly regulates unsolicited commercial electronic 
     mail and that treats the mere sending of unsolicited 
     commercial electronic mail in a manner that complies with 
     this Act as sufficient to constitute a violation of such 
     statute, regulation, or rule or to create a cause of action 
     thereunder.
       (c) No Effect on Policies of Providers of Internet Access 
     Service.--Nothing in this Act shall be construed to have any 
     effect on the lawfulness or unlawfulness, under any other 
     provision of law, of the adoption, implementation, or 
     enforcement by a provider of Internet access service of a 
     policy of declining to transmit, route, relay, handle, or 
     store certain types of electronic mail messages.

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

       (a) In general.--Not later than 24 months after the date of 
     the enactment of this Act, the Commission, in consultation 
     with the Department of Justice and other appropriate 
     agencies, shall submit a report to the Congress that provides 
     a detailed analysis of the effectiveness and enforcement of 
     the provisions of this Act and the need (if any) for the 
     Congress to modify such provisions.
       (b) Required Analysis.--The Commission shall include in the 
     report required by subsection (a) an analysis of the extent 
     to which technological and marketplace developments, 
     including changes in the nature of the devices through which 
     consumers access their electronic mail messages, may affect 
     the practicality and effectiveness of the provisions of this 
     Act.

     SEC. 9 SEPARABILITY.

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

     SEC. 10. EFFECTIVE DATE.

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

  Mr. WYDEN. Mr. President, I am pleased today to be teaming up again 
with my good friend Senator Burns to reintroduce legislation to address 
the rising tide of unsolicited commercial e-mail, commonly known as 
``spam.''
  In the last Congress, our anti-spam legislation was approved 
unanimously by the Senate Commerce Committee. Since that time--nearly a 
year ago now--the problem of spam has been increasing at an alarming 
rate. Roughly

[[Page S5208]]

40 percent of all e-mail traffic in the United States is spam, up from 
8 percent in late 2001 and nearly doubling in the past six months. By 
2004, according to some estimates, a typical company that fails to take 
defensive action could find that over 50 percent of its e-mail messages 
will be spam. This isn't just annoying, it's costly: one consulting 
group has estimated that spam will cost U.S. organizations more than 
$10 billion this year, due to expenses for anti-spam equipment and 
manpower and lost productivity.
  If nothing is done, the situation is only likely to get worse. The 
fundamental problem--and what makes spam different from other types of 
marketing--is that it is so cheap to send huge volumes of messages. 
With the stroke of a key, the spammer can let fly a massive torrent of 
e-mails. And since the sender doesn't pay any per-message postage, the 
incentive is to send as many as possible. The cost of all these extra 
messages is borne by the Internet service providers, ISPs, and the 
recipients, not by the sender. So as far as the spammer is concerned, 
the sky is the limit.
  Anyone who uses e-mail should be deeply concerned about this trend. 
In a few short years, e-mail quickly went from a novelty to a core 
medium of communication for millions of Americans. They came to rely on 
it daily, for business and personal communications alike. But just as 
quickly as e-mail rose to prominence, its usefulness could dwindle--
buried under an avalanche of endless ``Get Rich Quick,'' ``Lose Weight 
Fast,'' and offensive pornographic marketing pitches. As consumers grow 
frustrated with bloated in-boxes, and as ISP networks and e-commerce 
websites are slowed by mounting junk e-mail traffic jams, enthusiasm 
for the entire medium of e-mail and e-commerce could sour.
  Right now, e-mail users and ISPs are trying to manage the problem as 
best they can. They use filtering software, or lists of known spammers, 
or sign up for special anti-spam services. But these tactics can be 
burdensome, costly, and only partially effective. The fact is, existing 
laws do not provide sufficient tools. More help is needed.
  Many States have moved to address the issue. But e-mail is not a 
medium that respects, or even recognizes, State borders. Indeed, e-mail 
addresses tell nothing about which State the user is located in, so the 
sender and recipient of an e-mail message may have no clue where the 
other is located. Therefore, this is one area where a State-by-State 
patchwork of rules makes no sense. It is time for a nationwide 
approach.
  That is why Senator Burns and I are reintroducing the ``Controlling 
the Assault of Non-Solicited Pornography and Marketing Act''--the CAN 
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 the recipient to see where the messages are 
coming from, and to tell the sender to stop. The basic goal is simple: 
give the consumer more control.
  Specifically, the bill would prohibit the use of falsified or 
deceptive headers or subject lines, so that consumers will be able to 
identify the true source of the message. A sender of unsolicited 
marketing e-mail would also be required to provide the recipient with a 
return address or similar mechanism that can be used to tell the 
sender, ``no more.'' And once a consumer says ``no more,'' a sender 
would be required to honor that request. Senders of unsolicited 
commercial messages would also be required to include a clear 
notification that the message is an advertisement or solicitation, and 
a valid physical postal address.
  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 ISPs 
would be able to bring suit to keep unlawful spam off 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 
between businesses and their customers. 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 in an annoying and 
misleading fashion. I believe this bill strikes that important balance.
  Senator Burns and I have been at this for three years now, and have 
worked with many different groups in shaping the legislation. We 
believe we have made real progress in addressing some of the legitimate 
concerns that were raised about previous versions of the bill. 
Naturally, there are interested parties who have additional ideas for 
measures they would like to see. We will be happy to continue to work 
with them, and I would also point out that the bill calls for a study 
to evaluate this initial Federal step against spam and to determine 
whether further provisions are needed. But the bill we are introducing 
today offers a workable, common-sense approach that should be 
politically viable this year.
  I am pleased that Senators Breaux, Landrieu, Schumer, and Thomas are 
joining Senator Burns and me in cosponsoring this legislation. I urge 
the rest of my Senate colleagues to join with us on moving it forward 
as promptly as possible, so that the Senate won't still be debating the 
issue, with no action taken, several years from now.
                                 ______