[Congressional Record Volume 149, Number 149 (Wednesday, October 22, 2003)]
[Senate]
[Pages S13012-S13045]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          CAN-SPAM ACT OF 2003

  Mr. McCAIN. Madam President, I ask unanimous consent that the Senate 
now proceed to the consideration of Calendar No. 209, S. 877; provided 
further that the committee amendment be agreed to and be considered 
original text for the purpose of further amendment.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. McCAIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The assistant legislative clerk read as follows:

       A bill (S. 877) to regulate interstate commerce by imposing 
     limitations and penalties on the transmission of unsolicited 
     commercial electronic mail via the Internet.

  The PRESIDING OFFICER. Is there objection to the Senator's request? 
Without objection, it is so ordered.
  The Senate proceeded to consider the bill which had been reported 
from the Committee on Commerce, Science, and Transportation, with an 
amendment to strike all after enacting clause and insert in lieu 
thereof the following:
  [Strike the part shown in black brackets and insert the part shown in 
italic.]

                                 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 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

[[Page S13013]]

       [(B) the recipient was, at the time of such transaction or 
     thereafter in the first electronic mail message received from 
     the sender after the effective date of this Act, provided a 
     clear and conspicuous notice of an opportunity not to receive 
     unsolicited commercial electronic mail messages from the 
     sender and has not exercised such opportunity.

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

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

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

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

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

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

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

       [(a) Requirements for Transmission of Messages.--
       [(1) Prohibition of false or misleading transmission 
     information.--It is unlawful for any person to initiate the 
     transmission, to a protected computer, of a commercial 
     electronic mail message that contains, or is accompanied by, 
     header information that is materially or intentionally false 
     or materially or intentionally misleading. For purposes of 
     this paragraph, header information that is technically 
     accurate but includes an originating electronic mail address 
     the access to which for purposes of initiating the message 
     was obtained by means of false or fraudulent pretenses or 
     representations shall be considered materially misleading.
       [(2) Prohibition of deceptive subject headings.--It is 
     unlawful for any person to initiate the transmission to a 
     protected computer of a commercial electronic mail message 
     with a subject heading that such person knows would be likely 
     to mislead a recipient, acting reasonably under the 
     circumstances, about a material fact regarding the contents 
     or subject matter of the message.
       [(3) Inclusion of return address or comparable mechanism in 
     unsolicited commercial electronic mail.--
       [(A) In general.--It is unlawful for any person to initiate 
     the transmission to a protected computer of an unsolicited 
     commercial electronic mail message that does not contain a 
     functioning return electronic mail address or other Internet-
     based mechanism, clearly and conspicuously displayed, that--
       [(i) a recipient may use to submit, in a manner specified 
     by the sender, a reply electronic mail message or other form 
     of Internet-based communication requesting not to receive any 
     future unsolicited commercial electronic mail messages from 
     that sender at the electronic mail address where the message 
     was received; and
       [(ii) remains capable of receiving such messages or 
     communications for no less than 30 days after the 
     transmission of the original message.
       [(B) More detailed options possible.--The sender of an 
     unsolicited commercial electronic mail message may comply 
     with subparagraph (A)(i) by providing the recipient a list or 
     menu from which the recipient may choose the specific types 
     of commercial electronic mail messages the recipient wants to 
     receive or does not want to receive from the sender, if the 
     list or menu includes an option under which the recipient may 
     choose not to receive any unsolicited commercial electronic 
     mail messages from the sender.
       [(C) Temporary inability to receive messages or process 
     requests.--A return electronic mail address or other 
     mechanism does not fail to satisfy the requirements of 
     subparagraph (A) if it is unexpectedly and temporarily unable 
     to receive messages or process requests due to technical or 
     capacity problems, if the problem with receiving messages or 
     processing requests is corrected within a reasonable time 
     period.
       [(4) Prohibition of transmission of unsolicited commercial 
     electronic mail after objection.--If a recipient makes a 
     request to a sender, using a mechanism provided pursuant to 
     paragraph (3), not to receive some or any unsolicited 
     commercial electronic mail messages from such sender, then it 
     is unlawful--
       [(A) for the sender to initiate the transmission to the 
     recipient, more than 10 business days after the receipt of 
     such request, of an unsolicited commercial electronic mail 
     message that falls within the scope of the request;
       [(B) for any person acting on behalf of the sender to 
     initiate the transmission to the recipient, more than 10 
     business days after the receipt of such request, of an 
     unsolicited commercial electronic mail message that such 
     person knows or consciously avoids knowing falls within the 
     scope of the request; or
       [(C) for any person acting on behalf of the sender to 
     assist in initiating the transmission to the recipient, 
     through the provision or selection of addresses to which the 
     message will be sent, of an unsolicited commercial electronic 
     mail message that the person knows, or consciously avoids 
     knowing, would violate subparagraph (A) or (B).
       [(5) Inclusion of identifier, opt-out, and physical address 
     in unsolicited commercial electronic mail.--It is unlawful 
     for any person to initiate the transmission of any 
     unsolicited commercial electronic mail message to a protected 
     computer unless the message provides--
       [(A) clear and conspicuous identification that the message 
     is an advertisement or solicitation;
       [(B) clear and conspicuous notice of the opportunity under 
     paragraph (3) to decline to receive further unsolicited 
     commercial electronic mail messages from the sender; and
       [(C) a valid physical postal address of the sender.
       [(b) Prohibition of Transmission of Unlawful Unsolicited 
     Commercial Electronic Mail to Certain Harvested Electronic 
     Mail Addresses.--
       [(1) In general.--It is unlawful for any person to initiate 
     the transmission, to a protected computer, of an unsolicited 
     commercial electronic mail message that is unlawful under 
     subsection (a), or to assist in the origination of such a 
     message through the provision or selection of addresses to 
     which the message will be sent, if such person knows

[[Page S13014]]

     that, or acts with reckless disregard as to whether--
       [(A) the electronic mail address of the recipient was 
     obtained, using an automated means, from an Internet website 
     or proprietary online service operated by another person; or
       [(B) the website or proprietary online service from which 
     the address was obtained included, at the time the address 
     was obtained, a notice stating that the operator of such a 
     website or proprietary online service will not give, sell, or 
     otherwise transfer addresses maintained by such site or 
     service to any other party for the purpose of initiating, or 
     enabling others to initiate, unsolicited electronic mail 
     messages.
       [(2) Disclaimer.--Nothing in this subsection creates an 
     ownership or proprietary interest in such electronic mail 
     addresses.
       [(c) Compliance Procedures.--An action for violation of 
     paragraph (2), (3), (4), or (5) of subsection (a) may not 
     proceed if the person against whom the action is brought 
     demonstrates that--
       [(1) the person has established and implemented, with due 
     care, reasonable practices and procedures to effectively 
     prevent violations of such paragraph; and
       [(2) the violation occurred despite good faith efforts to 
     maintain compliance with such practices and procedures.

     [SEC. 6. ENFORCEMENT BY FEDERAL TRADE COMMISSION.

       [(a) Violation Is Unfair or Deceptive Act or Practice.--
     Except as provided in subsection (b), this Act shall be 
     enforced by the Commission as if the violation of this Act 
     were an unfair or deceptive act or practice proscribed under 
     section 18(a)(1)(B) of the Federal Trade Commission Act (15 
     U.S.C. 57a(a)(1)(B)).
       [(b) Enforcement by Certain Other Agencies.--Compliance 
     with this Act shall be enforced--
       [(1) under section 8 of the Federal Deposit Insurance Act 
     (12 U.S.C. 1818), in the case of--
       [(A) national banks, and Federal branches and Federal 
     agencies of foreign banks, and any subsidiaries of such 
     entities (except brokers, dealers, persons providing 
     insurance, investment companies, and investment advisers), by 
     the Office of the Comptroller of the Currency;
       [(B) member banks of the Federal Reserve System (other than 
     national banks), branches and agencies of foreign banks 
     (other than Federal branches, Federal agencies, and insured 
     State branches of foreign banks), commercial lending 
     companies owned or controlled by foreign banks, organizations 
     operating under section 25 or 25A of the Federal Reserve Act 
     (12 U.S.C. 601 and 611), and bank holding companies and their 
     nonbank subsidiaries or affiliates (except brokers, dealers, 
     persons providing insurance, investment companies, and 
     investment advisers), by the Board;
       [(C) banks insured by the Federal Deposit Insurance 
     Corporation (other than members of the Federal Reserve 
     System) insured State branches of foreign banks, and any 
     subsidiaries of such entities (except brokers, dealers, 
     persons providing insurance, investment companies, and 
     investment advisers), by the Board of Directors of the 
     Federal Deposit Insurance Corporation; and
       [(D) savings associations the deposits of which are insured 
     by the Federal Deposit Insurance Corporation, and any 
     subsidiaries of such savings associations (except brokers, 
     dealers, persons providing insurance, investment companies, 
     and investment advisers), by the Director of the Office of 
     Thrift Supervision;
       [(2) under the Federal Credit Union Act (12 U.S.C. 1751 et 
     seq.) by the Board of the National Credit Union 
     Administration with respect to any Federally insured credit 
     union, and any subsidiaries of such a credit union;
       [(3) under the Securities Exchange Act of 1934 (15 U.S.C. 
     78a et seq.) by the Securities and Exchange Commission with 
     respect to any broker or dealer;
       [(4) under the Investment Company Act of 1940 (15 U.S.C. 
     80a-1 et seq.) by the Securities and Exchange Commission with 
     respect to investment companies;
       [(5) under the Investment Advisers Act of 1940 (15 U.S.C. 
     80b-1 et seq.) by the Securities and Exchange Commission with 
     respect to investment advisers registered under that Act;
       [(6) under State insurance law in the case of any person 
     engaged in providing insurance, by the applicable State 
     insurance authority of the State in which the person is 
     domiciled, subject to section 104 of the Gramm-Bliley-Leach 
     Act (15 U.S.C. 6701);
       [(7) under part A of subtitle VII of title 49, United 
     States Code, by the Secretary of Transportation with respect 
     to any air carrier or foreign air carrier subject to that 
     part;
       [(8) under the Packers and Stockyards Act, 1921 (7 U.S.C. 
     181 et seq.) (except as provided in section 406 of that Act 
     (7 U.S.C. 226, 227)), by the Secretary of Agriculture with 
     respect to any activities subject to that Act;
       [(9) under the Farm Credit Act of 1971 (12 U.S.C. 2001 et 
     seq.) by the Farm Credit Administration with respect to any 
     Federal land bank, Federal land bank association, Federal 
     intermediate credit bank, or production credit association; 
     and
       [(10) under the Communications Act of 1934 (47 U.S.C. 151 
     et seq.) by the Federal Communications Commission with 
     respect to any person subject to the provisions of that Act.
       [(c) Exercise of Certain Powers.--For the purpose of the 
     exercise by any agency referred to in subsection (b) of its 
     powers under any Act referred to in that subsection, a 
     violation of this Act is deemed to be a violation of a 
     requirement imposed under that Act. In addition to its powers 
     under any provision of law specifically referred to in 
     subsection (b), each of the agencies referred to in that 
     subsection may exercise, for the purpose of enforcing 
     compliance with any requirement imposed under this Act, any 
     other authority conferred on it by law.
       [(d) Actions by the Commission.--The Commission shall 
     prevent any person from violating this Act in the same 
     manner, by the same means, and with the same jurisdiction, 
     powers, and duties as though all applicable terms and 
     provisions of the Federal Trade Commission Act (15 U.S.C. 41 
     et seq.) were incorporated into and made a part of this Act. 
     Any entity that violates any provision of that subtitle is 
     subject to the penalties and entitled to the privileges and 
     immunities provided in the Federal Trade Commission Act in 
     the same manner, by the same means, and with the same 
     jurisdiction, power, and duties as though all applicable 
     terms and provisions of the Federal Trade Commission Act were 
     incorporated into and made a part of that subtitle.
       [(e) Enforcement by States.--
       [(1) Civil action.--In any case in which the attorney 
     general of a State has reason to believe that an interest of 
     the residents of that State has been or is threatened or 
     adversely affected by any person engaging in a practice that 
     violates section 5 of this Act, the State, as parens patriae, 
     may bring a civil action on behalf of the residents of the 
     State in a district court of the United States of appropriate 
     jurisdiction or in any other court of competent 
     jurisdiction--
       [(A) to enjoin further violation of section 5 of this Act 
     by the defendant; or
       [(B) to obtain damages on behalf of residents of the State, 
     in an amount equal to the greater of--
       [(i) the actual monetary loss suffered by such residents; 
     or
       [(ii) the amount determined under paragraph (2).
       [(2) Statutory damages.--
       [(A) In general.--For purposes of paragraph (1)(B)(ii), the 
     amount determined under this paragraph is the amount 
     calculated by multiplying the number of willful, knowing, or 
     negligent violations by an amount, in the discretion of the 
     court, of up to $10 (with each separately addressed unlawful 
     message received by such residents treated as a separate 
     violation). In determining the per-violation penalty under 
     this subparagraph, the court shall take into account the 
     degree of culpability, any history of prior such conduct, 
     ability to pay, the extent of economic gain resulting from 
     the violation, and such other matters as justice may require.
       [(B) Limitation.--For any violation of section 5 (other 
     than section 5(a)(1)), the amount determined under 
     subparagraph (A) may not exceed $500,000, except that if the 
     court finds that the defendant committed the violation 
     willfully and knowingly, the court may increase the 
     limitation established by this paragraph from $500,000 to an 
     amount not to exceed $1,500,000.
       [(3) Attorney fees.--In the case of any successful action 
     under paragraph (1), the State shall be awarded the costs of 
     the action and reasonable attorney fees as determined by the 
     court.
       [(4) Rights of federal regulators.--The State shall serve 
     prior written notice of any action under paragraph (1) upon 
     the Federal Trade Commission or the appropriate Federal 
     regulator determined under subsection (b) and provide the 
     Commission or appropriate Federal regulator with a copy of 
     its complaint, except in any case in which such prior notice 
     is not feasible, in which case the State shall serve such 
     notice immediately upon instituting such action. The Federal 
     Trade Commission or appropriate Federal regulator shall have 
     the right--
       [(A) to intervene in the action;
       [(B) upon so intervening, to be heard on all matters 
     arising therein;
       [(C) to remove the action to the appropriate United States 
     district court; and
       [(D) to file petitions for appeal.
       [(5) Construction.--For purposes of bringing any civil 
     action under paragraph (1), nothing in this Act shall be 
     construed to prevent an attorney general of a State from 
     exercising the powers conferred on the attorney general by 
     the laws of that State to--
       [(A) conduct investigations;
       [(B) administer oaths or affirmations; or
       [(C) compel the attendance of witnesses or the production 
     of documentary and other evidence.
       [(6) Venue; service of process.--
       [(A) Venue.--Any action brought under paragraph (1) may be 
     brought in the district court of the United States that meets 
     applicable requirements relating to venue under section 1391 
     of title 28, United States Code.
       [(B) Service of process.--In an action brought under 
     paragraph (1), process may be served in any district in which 
     the defendant--
       [(i) is an inhabitant; or
       [(ii) maintains a physical place of business.
       [(7) Limitation on state action while federal action is 
     pending.--If the Commission or other appropriate Federal 
     agency under subsection (b) has instituted a civil action or 
     an administrative action for violation of this Act, no State 
     attorney general may bring an action under this subsection 
     during the pendency of that action against

[[Page S13015]]

     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.]

     SECTION 1. SHORT TITLE.

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

     SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.

       (a) Findings.--The Congress finds the following:
       (1) Electronic mail has become an extremely important and 
     popular means of communication, relied on by millions of 
     Americans on a daily basis for personal and commercial 
     purposes. Its low cost and global reach make it extremely 
     convenient and efficient, and offer unique opportunities for 
     the development and growth of frictionless commerce.
       (2) The convenience and efficiency of electronic mail are 
     threatened by the extremely rapid growth in the volume of 
     unsolicited commercial electronic mail. Unsolicited 
     commercial electronic mail is currently estimated to account 
     for over 45 percent of all electronic mail traffic, up from 
     an estimated 7 percent in 2001, and the volume continues to 
     rise. Most of these unsolicited commercial electronic mail 
     messages are fraudulent or deceptive in one or more respects.
       (3) The receipt of unsolicited commercial electronic mail 
     may result in costs to recipients who cannot refuse to accept 
     such mail and who incur costs for the storage of such mail, 
     or for the time spent accessing, reviewing, and discarding 
     such mail, or for both.
       (4) The receipt of a large number of unsolicited messages 
     also decreases the convenience of electronic mail and creates 
     a risk that wanted electronic mail messages, both commercial 
     and noncommercial, will be lost, overlooked, or discarded 
     amidst the larger volume of unwanted messages, thus reducing 
     the reliability and usefulness of electronic mail to the 
     recipient.
       (5) Some unsolicited commercial electronic mail contains 
     material that many recipients may consider vulgar or 
     pornographic in nature.
       (6) The growth in unsolicited commercial electronic mail 
     imposes significant monetary costs on providers of Internet 
     access services, businesses, and educational and nonprofit 
     institutions that carry and receive such mail, as there is a 
     finite volume of mail that such providers, businesses, and 
     institutions can handle without further investment in 
     infrastructure.
       (7) Many senders of unsolicited commercial electronic mail 
     purposefully disguise the source of such mail.
       (8) Many senders of unsolicited commercial electronic mail 
     purposefully include misleading information in the message's 
     subject lines in order to induce the recipients to view the 
     messages.
       (9) While some senders of unsolicited commercial electronic 
     mail messages provide simple and reliable ways for recipients 
     to reject (or ``opt-out'' of) receipt of unsolicited 
     commercial electronic mail from such senders in the future, 
     other senders provide no such ``opt-out'' mechanism, or 
     refuse to honor the requests of recipients not to receive 
     electronic mail from such senders in the future, or both.
       (10) Many senders of bulk unsolicited commercial electronic 
     mail use computer programs to gather large numbers of 
     electronic mail addresses on an automated basis from Internet 
     websites or online services where users must post their 
     addresses in order to make full use of the website or 
     service.
       (11) Many States have enacted legislation intended to 
     regulate or reduce unsolicited commercial electronic mail, 
     but these statutes impose different standards and 
     requirements. As a result, they do not appear to have been 
     successful in addressing the problems associated with 
     unsolicited commercial electronic mail, in part because, 
     since an electronic mail address does not specify a 
     geographic location, it can be extremely difficult for law-
     abiding businesses to know with which of these disparate 
     statutes they are required to comply.
       (12) The problems associated with the rapid growth and 
     abuse of unsolicited commercial electronic mail cannot be 
     solved by Federal legislation alone. The development and 
     adoption of technological approaches and the pursuit of 
     cooperative efforts with other countries will be necessary as 
     well.
       (b) Congressional Determination of Public Policy.--On the 
     basis of the findings in subsection (a), the Congress 
     determines that--
       (1) there is a substantial government interest in 
     regulation of unsolicited commercial electronic mail on a 
     nationwide basis;
       (2) senders of unsolicited commercial electronic mail 
     should not mislead recipients as to the source or content of 
     such mail; and
       (3) recipients of unsolicited commercial electronic mail 
     have a right to decline to receive additional unsolicited 
     commercial electronic mail from the same source.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Affirmative consent.--The term ``affirmative consent'', 
     when used with respect to a commercial electronic mail 
     message, means that--
       (A) the recipient expressly consented to receive the 
     message, either in response to a clear and conspicuous 
     request for such consent or at the recipient's own 
     initiative; and
       (B) if the message is from a party other than the party to 
     which the recipient communicated such consent, the recipient 
     was given clear and conspicuous notice at the time the 
     consent was

[[Page S13016]]

     communicated that the recipient's electronic mail address 
     could be transferred to such other party for the purpose 
     of initiating commercial electronic mail messages.
       (2) Commercial electronic mail message.--
       (A) In general.--The term ``commercial electronic mail 
     message'' means any electronic mail message the primary 
     purpose of which is the commercial advertisement or promotion 
     of a commercial product or service (including content on an 
     Internet website operated for a commercial purpose).
       (B) Reference to company or website.--The inclusion of a 
     reference to a commercial entity or a link to the website of 
     a commercial entity in an electronic mail message does not, 
     by itself, cause such message to be treated as a commercial 
     electronic mail message for purposes of this Act if the 
     contents or circumstances of the message indicate a primary 
     purpose other than commercial advertisement or promotion of a 
     commercial product or service.
       (3) Commission.--The term ``Commission'' means the Federal 
     Trade Commission.
       (4) Domain name.--The term ``domain name'' means any 
     alphanumeric designation which is registered with or assigned 
     by any domain name registrar, domain name registry, or other 
     domain name registration authority as part of an electronic 
     address on the Internet.
       (5) Electronic mail address.--The term ``electronic mail 
     address'' means a destination, commonly expressed as a string 
     of characters, consisting of a unique user name or mailbox 
     (commonly referred to as the ``local part'') and a reference 
     to an Internet domain (commonly referred to as the ``domain 
     part''), to which an electronic mail message can be sent or 
     delivered.
       (6) Electronic mail message.--The term ``electronic mail 
     message'' means a message sent to a unique electronic mail 
     address.
       (7) FTC act.--The term ``FTC Act'' means the Federal Trade 
     Commission Act (15 U.S.C. 41 et seq.).
       (8) Header information.--The term ``header information'' 
     means the source, destination, and routing information 
     attached to an electronic mail message, including the 
     originating domain name and originating electronic mail 
     address, and any other information that appears in the line 
     identifying, or purporting to identify, a person initiating 
     the message.
       (9) Implied consent.--
       (A) In general.--The term ``implied consent'', when used 
     with respect to a commercial electronic mail message, means 
     that--
       (i) within the 3-year period ending upon receipt of such 
     message, there has been a business transaction between the 
     sender and the recipient (including a transaction involving 
     the provision, free of charge, of information, goods, or 
     services requested by the recipient); and
       (ii) the recipient was, at the time of such transaction or 
     thereafter in the first electronic mail message received from 
     the sender after the effective date of this Act, provided a 
     clear and conspicuous notice of an opportunity not to receive 
     unsolicited commercial electronic mail messages from the 
     sender and has not exercised such opportunity.
       (B) Mere visitation.--A visit by a recipient to a publicly 
     available website shall not be treated as a transaction for 
     purposes of subparagraph (A)(i) if the recipient did not 
     knowingly submit the recipient's electronic mail address to 
     the operator of the website.
       (C) Separate lines of business or divisions.--If a sender 
     operates through separate lines of business or divisions and 
     holds itself out to the recipient, both at the time of the 
     transaction described in subparagraph (A)(i) and at the time 
     the notice under subparagraph (A)(ii) was provided to the 
     recipient, as that particular line of business or division 
     rather than as the entity of which such line of business or 
     division is a part, then the line of business or the division 
     shall be treated as the sender for purposes of this 
     paragraph.
       (10) Initiate.--The term ``initiate'', when used with 
     respect to a commercial electronic mail message, means to 
     originate or transmit such message or to procure the 
     origination or transmission of such message, but shall not 
     include actions that constitute routine conveyance of such 
     message. For purposes of this paragraph, more than 1 person 
     may be considered to have initiated a message.
       (11) Internet.--The term ``Internet'' has the meaning given 
     that term in the Internet Tax Freedom Act (47 U.S.C. 151 nt).
       (12) Internet access service.--The term ``Internet access 
     service'' has the meaning given that term in section 
     231(e)(4) of the Communications Act of 1934 (47 U.S.C. 
     231(e)(4)).
       (13) Procure.--The term ``procure'', when used with respect 
     to the initiation of a commercial electronic mail message, 
     means intentionally to pay or provide other consideration to, 
     or induce, another person to initiate such a message on one's 
     behalf, knowing, or consciously avoiding knowing, the extent 
     to which that person intends to comply with the requirements 
     of this Act.
       (14) Protected computer.--The term ``protected computer'' 
     has the meaning given that term in section 1030(e)(2)(B) of 
     title 18, United States Code.
       (15) Recipient.--The term ``recipient'', when used with 
     respect to a commercial electronic mail message, means an 
     authorized user of the electronic mail address to which the 
     message was sent or delivered. If a recipient of a commercial 
     electronic mail message has 1 or more electronic mail 
     addresses in addition to the address to which the message was 
     sent or delivered, the recipient shall be treated as a 
     separate recipient with respect to each such address. If 
     an electronic mail address is reassigned to a new user, 
     the new user shall not be treated as a recipient of any 
     commercial electronic mail message sent or delivered to 
     that address before it was reassigned.
       (16) Routine conveyance.--The term ``routine conveyance'' 
     means the transmission, routing, relaying, handling, or 
     storing, through an automatic technical process, of an 
     electronic mail message for which another person has 
     identified the recipients or provided the recipient 
     addresses.
       (17) Sender.--The term ``sender'', when used with respect 
     to a commercial electronic mail message, means a person who 
     initiates such a message and whose product, service, or 
     Internet web site is advertised or promoted by the message.
       (18) Transactional or relationship message.--The term 
     ``transactional or relationship message'' means an electronic 
     mail message the primary purpose of which is--
       (A) to facilitate, complete, or confirm a commercial 
     transaction that the recipient has previously agreed to enter 
     into with the sender;
       (B) to provide warranty information, product recall 
     information, or safety or security information with respect 
     to a commercial product or service used or purchased by the 
     recipient;
       (C) to provide--
       (i) notification concerning a change in the terms or 
     features of;
       (ii) notification of a change in the recipient's standing 
     or status with respect to; or
       (iii) at regular periodic intervals, account balance 
     information or other type of account statement with respect 
     to,
     a subscription, membership, account, loan, or comparable 
     ongoing commercial relationship involving the ongoing 
     purchase or use by the recipient of products or services 
     offered by the sender;
       (D) to provide information directly related to an 
     employment relationship or related benefit plan in which the 
     recipient is currently involved, participating, or enrolled; 
     or
       (E) to deliver goods or services, including product updates 
     or upgrades, that the recipient is entitled to receive under 
     the terms of a transaction that the recipient has previously 
     agreed to enter into with the sender.
       (19) Unsolicited commercial electronic mail message.--The 
     term ``unsolicited commercial electronic mail message'' means 
     any commercial electronic mail message that--
       (A) is not a transactional or relationship message; and
       (B) is sent to a recipient without the recipient's prior 
     affirmative or implied consent.

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

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

     ``Sec.  1351. Commercial electronic mail containing 
       fraudulent transmission information.

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

``1351. Commercial electronic mail containing fraudulent routing 
              information.''.

     SEC. 5. OTHER PROTECTIONS FOR USERS OF COMMERCIAL ELECTRONIC 
                   MAIL.

       (a) Requirements for Transmission of Messages.--
       (1) Prohibition of false or misleading transmission 
     information.--It is unlawful for any person to initiate the 
     transmission, to a protected computer, of a commercial 
     electronic mail message that contains, or is accompanied by, 
     header information that is false or misleading. For purposes 
     of this paragraph--
       (A) header information that is technically accurate but 
     includes an originating electronic mail address the access to 
     which for purposes of initiating the message was obtained by 
     means of false or fraudulent pretenses or representations 
     shall be considered misleading; and
       (B) a ``from'' line that accurately identifies any person 
     who initiated the message shall not be considered false or 
     misleading.
       (2) Prohibition of deceptive subject headings.--It is 
     unlawful for any person to initiate the transmission to a 
     protected computer of a commercial electronic mail message 
     with a subject heading that such person knows would be likely 
     to mislead a recipient, acting reasonably under the 
     circumstances, about a material fact regarding the contents 
     or subject matter of the message.
       (3) Inclusion of return address or comparable mechanism in 
     commercial electronic mail.--
       (A) In general.--It is unlawful for any person to initiate 
     the transmission to a protected computer of a commercial 
     electronic mail message that does not contain a functioning 
     return electronic mail address or other Internet-based 
     mechanism, clearly and conspicuously displayed, that--
       (i) a recipient may use to submit, in a manner specified in 
     the message, a reply electronic mail

[[Page S13017]]

     message or other form of Internet-based communication 
     requesting not to receive future commercial electronic 
     mail messages from that sender at the electronic mail 
     address where the message was received; and
       (ii) remains capable of receiving such messages or 
     communications for no less than 30 days after the 
     transmission of the original message.
       (B) More detailed options possible.--The person initiating 
     a commercial electronic mail message may comply with 
     subparagraph (A)(i) by providing the recipient a list or menu 
     from which the recipient may choose the specific types of 
     commercial electronic mail messages the recipient wants to 
     receive or does not want to receive from the sender, if the 
     list or menu includes an option under which the recipient may 
     choose not to receive any unsolicited commercial electronic 
     mail messages from the sender.
       (C) Temporary inability to receive messages or process 
     requests.--A return electronic mail address or other 
     mechanism does not fail to satisfy the requirements of 
     subparagraph (A) if it is unexpectedly and temporarily unable 
     to receive messages or process requests due to technical or 
     capacity problems, if the technical or capacity problems were 
     not reasonably foreseeable in light of the potential volume 
     of response messages or requests, and if the problem with 
     receiving messages or processing requests is corrected within 
     a reasonable time period.
       (D) Exception.--The requirements of this paragraph shall 
     not apply to a message that is a transactional or 
     relationship message.
       (4) Prohibition of transmission of unsolicited commercial 
     electronic mail after objection.--If a recipient makes a 
     request using a mechanism provided pursuant to paragraph (3) 
     not to receive some or any unsolicited commercial electronic 
     mail messages from such sender, then it is unlawful--
       (A) for the sender to initiate the transmission to the 
     recipient, more than 10 business days after the receipt of 
     such request, of an unsolicited commercial electronic mail 
     message that falls within the scope of the request;
       (B) for any person acting on behalf of the sender to 
     initiate the transmission to the recipient, more than 10 
     business days after the receipt of such request, of an 
     unsolicited commercial electronic mail message that such 
     person knows or consciously avoids knowing falls within the 
     scope of the request;
       (C) for any person acting on behalf of the sender to assist 
     in initiating the transmission to the recipient, through the 
     provision or selection of addresses to which the message will 
     be sent, of an unsolicited commercial electronic mail message 
     that the person knows, or consciously avoids knowing, would 
     violate subparagraph (A) or (B); or
       (D) for the sender, or any other person who knows that the 
     recipient has made such a request, to sell, lease, exchange, 
     or otherwise transfer or release the electronic mail address 
     of the recipient (including through any transaction or other 
     transfer involving mailing lists bearing the electronic mail 
     address of the recipient) for any purpose other than 
     compliance with this Act or other provision of law.
       (5) Inclusion of identifier, opt-out, and physical address 
     in unsolicited commercial electronic mail.--It is unlawful 
     for any person to initiate the transmission of any 
     unsolicited commercial electronic mail message to a protected 
     computer unless the message provides--
       (A) clear and conspicuous identification that the message 
     is an advertisement or solicitation;
       (B) clear and conspicuous notice of the opportunity under 
     paragraph (3) to decline to receive further unsolicited 
     commercial electronic mail messages from the sender; and
       (C) a valid physical postal address of the sender.
       (b) Aggravated Violations Relating to Unsolicited 
     Commercial Electronic Mail.--
       (1) Address harvesting and dictionary attacks.--
       (A) In general.--It is unlawful for any person to initiate 
     the transmission, to a protected computer, of an unsolicited 
     commercial electronic mail message that is unlawful under 
     subsection (a), or to assist in the origination of such 
     message through the provision or selection of addresses to 
     which the message will be transmitted, if such person knows, 
     should have known, or consciously avoids knowing that--
       (i) the electronic mail address of the recipient was 
     obtained using an automated means from an Internet website or 
     proprietary online service operated by another person, and 
     such website or online service included, at the time the 
     address was obtained, a notice stating that the operator of 
     such website or online service will not give, sell, or 
     otherwise transfer addresses maintained by such website or 
     online service to any other party for the purposes of 
     initiating, or enabling others to initiate, unsolicited 
     electronic mail messages; or
       (ii) the electronic mail address of the recipient was 
     obtained using an automated means that generates possible 
     electronic mail addresses by combining names, letters, or 
     numbers into numerous permutations.
       (B) Disclaimer.--Nothing in this paragraph creates an 
     ownership or proprietary interest in such electronic mail 
     addresses.
       (2) Automated creation of multiple electronic mail 
     accounts.--It is unlawful for any person to use scripts or 
     other automated means to establish multiple electronic mail 
     accounts or online user accounts from which to transmit to a 
     protected computer, or enable another person to transmit 
     to a protected computer, an unsolicited commercial 
     electronic mail message that is unlawful under subsection 
     (a).
       (3) Relay or retransmission through unauthorized access.--
     It is unlawful for any person knowingly to relay or 
     retransmit an unsolicited commercial electronic mail message 
     that is unlawful under subsection (a) from a protected 
     computer or computer network that such person has accessed 
     without authorization.
       (c) Compliance Procedures.--An action for violation of 
     paragraph (2), (3), (4), or (5) of subsection (a) may not 
     proceed if the person against whom the action is brought 
     demonstrates that --
       (1) the person has established and implemented, with due 
     care, reasonable practices and procedures to effectively 
     prevent violations of such paragraph; and
       (2) the violation occurred despite good faith efforts to 
     maintain compliance with such practices and procedures.

     SEC. 6. BUSINESSES KNOWINGLY PROMOTED BY ELECTRONIC MAIL WITH 
                   FALSE OR MISLEADING TRANSMISSION INFORMATION.

       (a) In General.--It is unlawful for a person to promote, or 
     allow the promotion of, that person's trade or business, or 
     goods, products, property, or services sold, offered for 
     sale, leased or offered for lease, or otherwise made 
     available through that trade or business, in a commercial 
     electronic mail message the transmission of which is in 
     violation of section 5(a)(1) if that person--
       (1) knows, or should have known in ordinary course of that 
     person's trade or business, that the goods, products, 
     property, or services sold, offered for sale, leased or 
     offered for lease, or otherwise made available through that 
     trade or business were being promoted in such a message;
       (2) received or expected to receive an economic benefit 
     from such promotion; and
       (3) took no reasonable action--
       (A) to prevent the transmission; or
       (B) to detect the transmission and report it to the 
     Commission.
       (b) Limited Enforcement Against Third Parties.--
       (1) In general.--Except as provided in paragraph (2), a 
     person (hereinafter referred to as the ``third party'') that 
     provides goods, products, property, or services to another 
     person that violates subsection (a) shall not be held liable 
     for such violation.
       (2) Exception.--Liability for a violation of subsection (a) 
     shall be imputed to a third party that provides goods, 
     products, property, or services to another person that 
     violates subsection (a) if that third party--
       (A) owns, or has a greater than 50 percent ownership or 
     economic interest in, the trade or business of the person 
     that violated subsection (a); or
       (B)(i) has actual knowledge that goods, products, property, 
     or services are promoted in a commercial electronic mail 
     message the transmission of which is in violation of section 
     5(a)(1); and
       (ii) receives, or expects to receive, an economic benefit 
     from such promotion.
       (c) Exclusive Enforcement by FTC.--Subsections (e) and (f) 
     of section 7 do not apply to violations of this section.

     SEC. 7. ENFORCEMENT BY FEDERAL TRADE COMMISSION.

       (a) Violation Is Unfair or Deceptive Act or Practice.--
     Except as provided in subsection (b), this Act shall be 
     enforced by the Commission as if the violation of this Act 
     were an unfair or deceptive act or practice proscribed under 
     section 18(a)(1)(B) of the Federal Trade Commission Act (15 
     U.S.C. 57a(a)(1)(B)).
       (b) Enforcement by Certain Other Agencies.--Compliance with 
     this Act shall be enforced--
       (1) under section 8 of the Federal Deposit Insurance Act 
     (12 U.S.C. 1818), in the case of--
       (A) national banks, and Federal branches and Federal 
     agencies of foreign banks, and any subsidiaries of such 
     entities (except brokers, dealers, persons providing 
     insurance, investment companies, and investment advisers), by 
     the Office of the Comptroller of the Currency;
       (B) member banks of the Federal Reserve System (other than 
     national banks), branches and agencies of foreign banks 
     (other than Federal branches, Federal agencies, and insured 
     State branches of foreign banks), commercial lending 
     companies owned or controlled by foreign banks, organizations 
     operating under section 25 or 25A of the Federal Reserve Act 
     (12 U.S.C. 601 and 611), and bank holding companies and their 
     nonbank subsidiaries or affiliates (except brokers, dealers, 
     persons providing insurance, investment companies, and 
     investment advisers), by the Board;
       (C) banks insured by the Federal Deposit Insurance 
     Corporation (other than members of the Federal Reserve 
     System) insured State branches of foreign banks, and any 
     subsidiaries of such entities (except brokers, dealers, 
     persons providing insurance, investment companies, and 
     investment advisers), by the Board of Directors of the 
     Federal Deposit Insurance Corporation; and
       (D) savings associations the deposits of which are insured 
     by the Federal Deposit Insurance Corporation, and any 
     subsidiaries of such savings associations (except brokers, 
     dealers, persons providing insurance, investment companies, 
     and investment advisers), by the Director of the Office of 
     Thrift Supervision;
       (2) under the Federal Credit Union Act (12 U.S.C. 1751 et 
     seq.) by the Board of the National Credit Union 
     Administration with respect to any Federally insured credit 
     union, and any subsidiaries of such a credit union;
       (3) under the Securities Exchange Act of 1934 (15 U.S.C. 
     78a et seq.) by the Securities and Exchange Commission with 
     respect to any broker or dealer;
       (4) under the Investment Company Act of 1940 (15 U.S.C. 
     80a-1 et seq.) by the Securities and Exchange Commission with 
     respect to investment companies;
       (5) under the Investment Advisers Act of 1940 (15 U.S.C. 
     80b-1 et seq.) by the Securities and Exchange Commission with 
     respect to investment advisers registered under that Act;
       (6) under State insurance law in the case of any person 
     engaged in providing insurance, by

[[Page S13018]]

     the applicable State insurance authority of the State in 
     which the person is domiciled, subject to section 104 of the 
     Gramm-Bliley-Leach Act (15 U.S.C. 6701);
       (7) under part A of subtitle VII of title 49, United States 
     Code, by the Secretary of Transportation with respect to any 
     air carrier or foreign air carrier subject to that part;
       (8) under the Packers and Stockyards Act, 1921 (7 U.S.C. 
     181 et seq.) (except as provided in section 406 of that Act 
     (7 U.S.C. 226, 227)), by the Secretary of Agriculture with 
     respect to any activities subject to that Act;
       (9) under the Farm Credit Act of 1971 (12 U.S.C. 2001 et 
     seq.) by the Farm Credit Administration with respect to any 
     Federal land bank, Federal land bank association, Federal 
     intermediate credit bank, or production credit association; 
     and
       (10) under the Communications Act of 1934 (47 U.S.C. 151 et 
     seq.) by the Federal Communications Commission with respect 
     to any person subject to the provisions of that Act.
       (c) Exercise of Certain Powers.--For the purpose of the 
     exercise by any agency referred to in subsection (b) of its 
     powers under any Act referred to in that subsection, a 
     violation of this Act is deemed to be a violation of a 
     Federal Trade Commission trade regulation rule. In addition 
     to its powers under any provision of law specifically 
     referred to in subsection (b), each of the agencies referred 
     to in that subsection may exercise, for the purpose of 
     enforcing compliance with any requirement imposed under this 
     Act, any other authority conferred on it by law.
       (d) Actions by the Commission.--The Commission shall 
     prevent any person from violating this Act in the same 
     manner, by the same means, and with the same jurisdiction, 
     powers, and duties as though all applicable terms and 
     provisions of the Federal Trade Commission Act (15 U.S.C. 41 
     et seq.) were incorporated into and made a part of this Act. 
     Any entity that violates any provision of that subtitle is 
     subject to the penalties and entitled to the privileges and 
     immunities provided in the Federal Trade Commission Act in 
     the same manner, by the same means, and with the same 
     jurisdiction, power, and duties as though all applicable 
     terms and provisions of the Federal Trade Commission Act were 
     incorporated into and made a part of that subtitle.
       (e) Enforcement by States.--
       (1) Civil action.--In any case in which the attorney 
     general of a State has reason to believe that an interest of 
     the residents of that State has been or is threatened or 
     adversely affected by any person engaging in a practice that 
     violates section 5 of this Act, the State, as parens patriae, 
     may bring a civil action on behalf of the residents of the 
     State in a district court of the United States of appropriate 
     jurisdiction or in any other court of competent 
     jurisdiction--
       (A) to enjoin further violation of section 5 of this Act by 
     the defendant; or
       (B) to obtain damages on behalf of residents of the State, 
     in an amount equal to the greater of--
       (i) the actual monetary loss suffered by such residents; or
       (ii) the amount determined under paragraph (2).
       (2) Statutory damages.--
       (A) In general.--For purposes of paragraph (1)(B)(ii), the 
     amount determined under this paragraph is the amount 
     calculated by multiplying the number of violations (with each 
     separately addressed unlawful message received by or 
     addressed to such residents treated as a separate violation) 
     by--
       (i) up to $100, in the case of a violation of section 
     5(a)(1); or
       (ii) $25, in the case of any other violation of section 5.
       (B) Limitation.--For any violation of section 5 (other than 
     section 5(a)(1)), the amount determined under subparagraph 
     (A) may not exceed $1,000,000.
       (C) Aggravated damages.--The court may increase a damage 
     award to an amount equal to not more than three times the 
     amount otherwise available under this paragraph if--
       (i) the court determines that the defendant committed the 
     violation willfully and knowingly; or
       (ii) the defendant's unlawful activity included one or more 
     of the aggravating violations set forth in section 5(b).
       (3) Attorney fees.--In the case of any successful action 
     under paragraph (1), the State shall be awarded the costs of 
     the action and reasonable attorney fees as determined by the 
     court.
       (4) Rights of federal regulators.--The State shall serve 
     prior written notice of any action under paragraph (1) upon 
     the Federal Trade Commission or the appropriate Federal 
     regulator determined under subsection (b) and provide the 
     Commission or appropriate Federal regulator with a copy of 
     its complaint, except in any case in which such prior notice 
     is not feasible, in which case the State shall serve such 
     notice immediately upon instituting such action. The Federal 
     Trade Commission or appropriate Federal regulator shall have 
     the right--
       (A) to intervene in the action;
       (B) upon so intervening, to be heard on all matters arising 
     therein;
       (C) to remove the action to the appropriate United States 
     district court; and
       (D) to file petitions for appeal.
       (5) Construction.--For purposes of bringing any civil 
     action under paragraph (1), nothing in this Act shall be 
     construed to prevent an attorney general of a State from 
     exercising the powers conferred on the attorney general by 
     the laws of that State to--
       (A) conduct investigations;
       (B) administer oaths or affirmations; or
       (C) compel the attendance of witnesses or the production of 
     documentary and other evidence.
       (6) Venue; service of process.--
       (A) Venue.--Any action brought under paragraph (1) may be 
     brought in the district court of the United States that meets 
     applicable requirements relating to venue under section 1391 
     of title 28, United States Code.
       (B) Service of process.--In an action brought under 
     paragraph (1), process may be served in any district in which 
     the defendant--
       (i) is an inhabitant; or
       (ii) maintains a physical place of business.
       (7) Limitation on state action while federal action is 
     pending.--If the Commission or other appropriate Federal 
     agency under subsection (b) has instituted a civil action or 
     an administrative action for violation of this Act, no 
     State attorney general may bring an action under this 
     subsection during the pendency of that action against any 
     defendant named in the complaint of the Commission or the 
     other agency for any violation of this Act alleged in the 
     complaint.
       (f) Action by Provider of Internet Access Service.--
       (1) Action authorized.--A provider of Internet access 
     service adversely affected by a violation of section 5 may 
     bring a civil action in any district court of the United 
     States with jurisdiction over the defendant, or in any other 
     court of competent jurisdiction, to--
       (A) enjoin further violation by the defendant; or
       (B) recover damages in an amount equal to the greater of--
       (i) actual monetary loss incurred by the provider of 
     Internet access service as a result of such violation; or
       (ii) the amount determined under paragraph (2).
       (2) Statutory damages.--
       (A) In general.--For purposes of paragraph (1)(B)(ii), the 
     amount determined under this paragraph is the amount 
     calculated by multiplying the number of violations (with each 
     separately addressed unlawful message that is transmitted or 
     attempted to be transmitted over the facilities of the 
     provider of Internet access service, or that is transmitted 
     or attempted to be transmitted to an electronic mail address 
     obtained from the provider of Internet access service in 
     violation of section 5(b)(1)(A)(i), treated as a separate 
     violation) by--
       (i) up to $100, in the case of a violation of section 
     5(a)(1); or
       (ii) $25, in the case of any other violation of section 5.
       (B) Limitation.--For any violation of section 5 (other than 
     section 5(a)(1)), the amount determined under subparagraph 
     (A) may not exceed $1,000,000.
       (C) Aggravated damages.--The court may increase a damage 
     award to an amount equal to not more than three times the 
     amount otherwise available under this paragraph if--
       (i) the court determines that the defendant committed the 
     violation willfully and knowingly; or
       (ii) the defendant's unlawful activity included one or more 
     of the aggravated violations set forth in section 5(b).
       (3) Attorney fees.--In any action brought pursuant to 
     paragraph (1), the court may, in its discretion, require an 
     undertaking for the payment of the costs of such action, and 
     assess reasonable costs, including reasonable attorneys' 
     fees, against any party.

     SEC. 8. EFFECT ON OTHER LAWS.

       (a) Federal Law.--
       (1) Nothing in this Act shall be construed to impair the 
     enforcement of section 223 or 231 of the Communications Act 
     of 1934 (47 U.S.C. 223 or 231, respectively), chapter 71 
     (relating to obscenity) or 110 (relating to sexual 
     exploitation of children) of title 18, United States Code, or 
     any other Federal criminal statute.
       (2) Nothing in this Act shall be construed to affect in any 
     way the Commission's authority to bring enforcement actions 
     under FTC Act for materially false or deceptive 
     representations or unfair practices in commercial electronic 
     mail messages.
       (b) State Law.--
       (1) In general.--This Act supersedes any statute, 
     regulation, or rule of a State or political subdivision of a 
     State that expressly regulates the use of electronic mail to 
     send commercial messages, except for any such statute, 
     regulation, or rule that prohibits falsity or deception in 
     any portion of a commercial electronic mail message or 
     information attached thereto.
       (2) State law not specific to electronic mail.--This Act 
     shall not be construed to preempt the applicability of State 
     laws that are not specific to electronic mail, including 
     State trespass, contract, or tort law, and State laws 
     relating to acts of fraud or computer crime.
       (c) No Effect on Policies of Providers of Internet Access 
     Service.--Nothing in this Act shall be construed to have any 
     effect on the lawfulness or unlawfulness, under any other 
     provision of law, of the adoption, implementation, or 
     enforcement by a provider of Internet access service of a 
     policy of declining to transmit, route, relay, handle, or 
     store certain types of electronic mail messages.

     SEC. 9. RECOMMENDATIONS CONCERNING DO-NOT-EMAIL REGISTRY.

       Not later than 6 months after the Federal Trade Commission 
     has completed implementation of its national telemarketing 
     Do-Not-Call list, the Commission shall transmit to the 
     Congress recommendations for a workable plan and timetable 
     for creating a nationwide marketing Do-Not-Email list modeled 
     on the Do-Not-Call list, or an explanation of any practical, 
     technical, security, or privacy-related issues that cause the 
     Commission to recommend against creating such a list.

     SEC. 10. STUDY OF EFFECTS OF UNSOLICITED COMMERCIAL 
                   ELECTRONIC MAIL.

       (a) In General.--Not later than 24 months after the date of 
     the enactment of this Act, the

[[Page S13019]]

     Commission, in consultation with the Department of Justice 
     and other appropriate agencies, shall submit a report to the 
     Congress that provides a detailed analysis of the 
     effectiveness and enforcement of the provisions of this Act 
     and the need (if any) for the Congress to modify such 
     provisions.
       (b) Required Analysis.--The Commission shall include in the 
     report required by subsection (a)--
       (1) an analysis of the extent to which technological and 
     marketplace developments, including changes in the nature of 
     the devices through which consumers access their electronic 
     mail messages, may affect the practicality and effectiveness 
     of the provisions of this Act;
       (2) analysis and recommendations concerning how to address 
     unsolicited commercial electronic mail that originates in or 
     is transmitted through or to facilities or computers in other 
     nations, including initiatives or policy positions that the 
     Federal government could pursue through international 
     negotiations, fora, organizations, or institutions; and
       (3) analysis and recommendations concerning options for 
     protecting consumers, including children, from the receipt 
     and viewing of unsolicited commercial electronic mail that is 
     obscene or pornographic.

     SEC. 11 SEPARABILITY.

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

     SEC. 12. EFFECTIVE DATE.

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

  The committee amendment in the nature of a substitute was agreed to.
  Mr. McCAIN. Madam President, this bill was introduced in April by 
Senators Burns and Wyden, and the substitute version was approved by 
the Senate Commerce Committee on June 19.
  Also, we have had intensive negotiations with the Senator from New 
York, Mr. Schumer, who is now on the floor, concerning a ``do not 
spam'' aspect of this legislation.
  First of all, I wish to thank, of course, Senator Hollings, the 
ranking member of the committee, for all of his effort, but I 
particularly acknowledge my two colleagues who are on the floor, 
Senators Burns and Wyden. Around here, we have a tendency to take 
credit for a lot of things that may not necessarily be true, although I 
am not sure that is true in my case, but the fact is, Senator Burns and 
Senator Wyden have worked for, I believe, 3 years on this issue. It is 
complex. It is difficult. It has a lot to do with technology. The 
issues are very technical in nature in some respects. They have 
responded to what I think is a major concern of every young American 
and every American who uses a computer, and that is this issue of 
unwanted spam.
  I again tell my colleagues that without the efforts Senator Burns and 
Senator Wyden have made on this bill, we would not be here today, and I 
am very grateful for their participation.
  I believe the ranking member, Senator Hollings, wishes to make an 
opening comment, and then I would like to be recognized after Senator 
Hollings.
  I yield the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from South Carolina.
  Mr. HOLLINGS. Madam President, I thank our distinguished chairman, 
Senator McCain, for getting this bill to the floor. Actually, we 
started 4 years ago under the leadership of Senator Wyden. In the last 
Congress, we had a bill reported from the committee but we could not 
get it up. We have learned lessons now from the Do Not Call effort, 
where we had to forgo committee and floor procedures to finally get it 
up. In this sense, I thank Senator McCain for getting this bill to the 
floor for its consideration, as well as Senator Wyden and Senator Burns 
for their leadership, and particularly my colleague from New York, 
Senator Schumer. He has a very important amendment. He has been driving 
forward for the expedition of this particular procedure, where the 
Federal Trade Commission is given some 6 months, although I think it 
can be done in a much shorter period.
  We will be riding herd on the Federal Trade Commission to see if we 
can congeal that time, get that list ready, and report it to the 
committee so we can act. Other than that, if there is a need for a Do 
Not Call list, there certainly is a need for a Do Not Spam list.
  I again thank Senator Burns, Senator Dayton, and Senator Schumer for 
their particular amendment and efforts on this case, and particularly 
my colleague, Senator Wyden, for his leadership over the past 4 years. 
It is under his drive that we have gotten it here.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Madam President, I will mention Senator Schumer's 
amendment which we have agreed to, which as soon as opening statements 
are completed we will propose, and I believe it will be without 
objection. It does do several things. I will mention it now because 
Senator Schumer has worked so hard on this amendment.
  This amendment says that not later than 6 months after the date of 
enactment of the act, the Commission will transmit to the Senate 
Committee on Commerce, Science, and Transportation, and to the House of 
Representatives Committee on Energy and Commerce a report that sets 
forth a plan and timetable for establishing a nationwide market Do Not 
E-mail Registry. It includes an explanation of any practical, 
technical, security, privacy, enforceability, or other concerns the 
Commission has regarding such a registry and includes an explanation of 
how the registry would be applied with respect to children with e-mail 
accounts.
  Finally, it says the Commission may establish and implement the plan, 
but not earlier than 9 months after the date of enactment of this act.
  I say to my friend, Senator Schumer, that I will do everything in my 
power to make sure that this is enacted and this plan, not earlier than 
9 months, should be implemented. I hope that is satisfactory.
  Again, I thank Senator Schumer. If we can implement a Do Not Spam 
provision which is clearly modeled after the Do Not Call list, I think 
it will have enormous benefit to all Americans.
  I will make a few comments about the bill and then yield to my 
colleagues and to Senator Schumer for their remarks.
  If passed into law by Congress and signed by the President, the CAN-
SPAM Act would be the first Federal law to regulate senders of 
commercial e-mail.
  The bill would prohibit senders of commercial e-mail from falsifying 
or disguising the following: their identity; the return address or 
routing information of an e-mail; and the subject matters of their 
messages. Violations of these provisions would result in both criminal 
and civil penalties.
  The bill would also require senders of commercial e-mail to give 
their recipients an opportunity to opt out of receiving future messages 
and to honor those requests. Except for e-mail that is transactional in 
nature, such as purchase receipts or airlines ticket confirmations, 
every commercial e-mail sent over the Internet to American consumers 
would be required to provide this valid, working opt-out or unsubscribe 
mechanism. These rules represent current industry best practices 
regarding commercial e-mail messages.
  For unsolicited commercial e-mail, however, the bill would require 
more disclosures from the sender of the message, such as providing 
recipients with instructions on how to operate the opt-out mechanism, a 
valid physical address of the sender, and a clear notice in the body of 
the message that it is an advertisement or solicitation.
  In an amendment I offered in committee, this bill would also prohibit 
businesses from knowingly promoting or permitting the promotion of 
their business through e-mail transmitted with false or misleading 
identity or routing information. Those that benefit the most from 
sending fraudulent spam, the companies advertised in those messages, 
should be held accountable, and they will.
  As my colleagues, Senators Burns and Wyden, will explain in more 
detail, the bill would also target many of the insidious mechanisms 
used by today's spammers, including e-mail harvesting, dictionary 
attacks, and the hijacking of consumer e-mail accounts in order to send 
spam.
  In addition to setting strict rules of the road for senders of 
commercial e-mail, the CAN-SPAM Act would provide tough criminal and 
civil penalties for offenders, and a multilayered approach to 
enforcement. This bill provides for enforcement actions by the FTC, 
State attorneys general, Internet service providers, and if Senator

[[Page S13020]]

Hatch's proposed criminal amendment is passed which I assume it will, 
the Department of Justice.
  I strongly support this bill and I urge my colleagues to join me, 
Senators Burns, Wyden, Hollings, Hatch, and others, in passing this 
bill as a first step toward giving consumers back some control of their 
e-mail in-boxes.
  I would like to make a few general observations about this issue that 
I have come to learn over the years that the Commerce Committee has 
examined it.
  According to the Pew Internet & American Life Project, approximately 
140 million Americans, nearly half of all U.S. citizens and 63 percent 
of full-time or part-time workers regularly use e-mail. E-mail 
messaging has fundamentally changed the way we communicate with family, 
friends, coworkers and business partners; the way consumers communicate 
with businesses that provide goods and services; and the way that 
businesses may legitimately market products to consumers. The growing 
affliction of spam, however, may threaten all of this.
  We must keep in mind the tremendous promise that the Internet and 
more specifically e-mail, holds for consumers and businesses alike. We 
must recognize that the word ``spam'' means different things to 
different people.
  The Federal Trade Commission defines spam generally as ``unsolicited 
commercial e-mail.'' and some Americans do not want any of it. Other 
consumers like to receive unsolicited offers by e-mail; to these 
consumers, spam means only the unwanted fraudulent or pornographic e-
mail that also floods their inbox.

  Many American businesses view e-mail over the Internet as a new 
medium through which to market or communicate more efficiently with 
consumers. To them, this type of communication is not spam, but 
commercial speech protected by the first amendment. The Direct 
Marketing Association reports that 37 percent of consumers it surveyed 
have bought something as a result of receiving unsolicited e-mail from 
marketers.
  Internet service provider are the businesses caught in the middle, 
forced every day to draw distinctions between what they perceive as 
legitimate e-mail and what is spam. In this environment, the risk of 
ISPs blocking legitimate mail that consumers depend on, such as 
purchase receipts or healthcare communications, is as much a concern as 
the prospect of failing to block as much spam as possible in the face 
of consumer demand. Often, the filters used by ISPs fail to meet their 
subscribers' expectations on both accounts, failing to block the spam 
and sometimes blocking legitimate e-mail from coming through, leaving 
consumers, legitimate businesses and the ISPs themselves frustrated.
  I think Senator Burns and Senator Wyden remember, as well as I do, a 
professional spammer who came and testified before our committee. I 
mentioned in passing that it took him approximately 4 hours to break 
through a filter that had recently been in place, and he immediately 
began his work again of spamming millions of people every day. He was a 
man who was proud of his work, by the way. He was a very interesting 
witness and, I might say in an otherwise dull hearing, a very 
entertaining one.
  We must be mindful that in our quest to stop spam, we may impose e-
mail restrictions that go too far and actually prohibit or effectively 
prevent e-mail that customers want to receive and that legitimate 
businesses depend on to service their customers.
  I believe this bill strikes the proper balance, thanks to the efforts 
of Senator Wyden, Senator Burns, Senator Schumer, and others, by 
carefully targeting the spam that consumers reject while preserving the 
fundamental benefits of e-mail to all Americans.
  Regardless of whether we call all solicited commercial e-mail spam, 
one fact is clear: Spam is rapidly on the rise. Its sheer volume is 
significantly affecting how consumers and businesses use e-mail. Less 
than 2 years ago, spam made up only 8 percent of all e-mail. In a 
hearing before the Commerce Committee in May, my colleagues and I 
learned that spam accounted for more than 45 percent of all global e-
mail traffic and, worse, it would probably exceed the 50 percent mark 
by year's end.
  In the committee's hearing, America Online--our Nation's largest 
Internet service provider with roughly 30 million subscribers--
testified that it blocks 80 percent of all its inbound e-mail--nearly 
2.4 billion out of 3 billion messages it receives each day. Not 
surprisingly, this number of blocked messages was nearly 2.5 times 
larger than the 1 billion messages AOL blocked per day only 2 months 
prior to that hearing, and nearly 5 times larger than the 500 million 
messages it blocked per day in December 2002.

  It's not just AOL. Our Nation's second and third largest e-mail 
providers, Microsoft and Earthlink, have also reported a tremendous 
surge in spam. Microsoft, the provider of MSN mail and the free Hotmail 
service, reported in May that both services combined block up to 2.4 
billion spam messages each day. Earthlink, the third largest ISP in the 
United States, also reported a 500 percent increase in its inbound spam 
over the past 18 months.
  I realize that these numbers may not mean as much to those who do not 
follow e-commerce closely, so let me put it in perspective to what 
nearly all Americans are familiar with--junk mail. The USA Today 
recently reported that more than 2 trillion spam messages are expected 
to be sent over the Internet this year, or 100 times the amount of 
direct mail advertising pieces delivered by U.S. mail last year.
  Managing this influx adds real monetary costs to consumers and 
businesses.
  A 2001 European Union study found that spam cost Internet subscribers 
wouldwide $9.4 billion each year, and USA Today reported in April that 
research organizations estimate fighting spam adds an average of $2 per 
month to an individual's Internet bill.
  Costs to businesses are also on the rise. Ferris Research currently 
estimates that costs to U.S. businesses from spam in lost productivity, 
network system upgrades, unrecoverable data, and increased personnel 
costs, combined will top $10 billion in 2003. Of that total, Ferris 
estimates that employee productivity losses from sifting through and 
deleting spam account for nearly 40 percent of that--or $4 billion 
alone.
  There are other costs to our society besides monetary costs. All of 
us are deeply concerned about the risks to our children who use e-mail 
and may be victimized by the nearly 20 percent of spam that contains 
pornographic material, including graphic sexual images.
  Parents encourage their children to use the Internet to play and do 
schoolwork, and to use e-mail to reach distant relatives. Yet, parents 
today spend more and more of their time worrying that their children 
may open up an e-mail, disguised to look like it's from a friend or 
loved one, only to find pornography.
  This greatly concerns me as a parent, as a legislator and as an 
American citizen. First and foremost, parents should not have to think 
twice before encouraging their children to use the computer at home.
  In addition to pornography, the FTC also tells us that two-thirds of 
all spam contains deceptive information, much of it peddling get-rich-
quick schemes, dubious financial or healthcare offers, and questionable 
products and services.
  Spam is a serious and rapidly growing problem that the Senate must 
act on, but we must also be mindful of the complexity of the problem we 
face. While I agree with my colleagues in the Senate who believe that 
passing legislation is a necessary step, I also believe that 
legislation alone will not solve the problem of spam.
  Spammers today disregard our laws and are winning the technological 
arms race with Internet service providers who try to block the spam 
they send. The New York Times recently reported just one example of how 
unscrupulous spammers were using technology to stay one step ahead of 
the law--in this instance, by highjacking a local Virginia school's 
computers to send out untraceable spam.
  I repeat: A local Virginia schools computers. The same day, in the 
Commerce Committee's hearing, Mr. Ronald Scelson--who is popularly 
known by his moniker ``The Cajun Spammer''--testified that it took him 
only 12 hours to ``crack'' the latest technology filter supplied by the 
company of another witness at the table. Not only did he hack into 
their filter and figure out how to defeat it, the

[[Page S13021]]

Cajun Spammer had distributed the keys to unlocking the filter to all 
of his fellow spammers so that they too could send spam past the 
filters to the ISP's subscribers.
  Keeping up with resourceful spammers' latest technology is not the 
only challenge. Jurisdictional barriers also complicate enforcement, 
and as we heard in our hearing, nearly 90 percent of all spam is 
untraceable and may be passing through mail servers outside of the 
United States.
  I mention these things only to emphasize the complexity of this 
problem and to remind my colleagues that the odds of us defeating spam 
by legislation alone are extremely low. The fact that there may be no 
silver bullet to the problem of spam, however, does not mean that we 
should stand idly by and do nothing at all about it.
  The CAN-SPAM Act is a good first step, and one we should take today.
  It is clear this Congress must act, but we should make no mistake--
unless we can effectively enforce the laws we write, those laws will 
have little meaning or deterrent effect on any would-be purveyor of 
spam.
  At the Commerce Committee's executive session where we considered 
this bill, I introduced an amendment that would empower the FTC to take 
action against businesses that financially benefit from the sending of 
spam with deliberately falisifed sender information. This amendment 
passed unanimously and I would like to take a moment here to briefly 
comment on it because it goes to the heart of this enforcement matter.
  In two hearings before the Commerce Committee this past spring, the 
chairman and Commissioners of the FTC testified to the Commission's 
tremendous difficulty in tracking and finding spammers who send out 
spam with fraudulent and often untraceable transmission information.
  The chairman advised us, however, that their investigations are 
usually most effective when ``following the money'' to track down 
spammers. By this, they mean following the Web link or phone number in 
the spam message that consumers follow with their money to purchase the 
product or service promoted in the spam. From there, the FTC attempts 
to prove a connection between the business and a spammer who sent it 
out on their behalf. In essence, they spend significant time and effort 
attempting to follow the money trail all the way back to the spammer--
if they can find them.
  As an alternative to the inefficient and often slow moving process, 
the amendment I proposed which is now section 6 of the bill was 
designed to help the FTC enforce the law against those businesses at 
the front end of the money trail that are promoted in the spam 
consumers receive. They need to go further, and here is why.
  Many unremarkable businesses employ sophisticated spammers to send e-
mail to consumers in large volumes with deliberately falsified identity 
and routing information in order to get past the ISP's spam filters. 
These businesses often escape liability because enforcement efforts are 
too often focused on catching the spammer rather than the unscrupulous 
businesses that hire them in the first place.
  Section 6, however, would make it easier for the FTC to enforce the 
law against businesses knowingly complicit in the use of spam to 
promote their businesses with deliberately falsified routing 
information. I urge my colleagues to support this principle of holding 
businesses that benefit from spam messages accountable for the acts of 
those they knowingly hire to fraudulently send spam to consumers on 
their behalf.
  I ask unanimous consent to have printed in the Record a number of 
letters I have received in support of this provision.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                              Consumers Union,

                                                    June 18, 2003.
     Subject: McCain FTC Enforcement Amendment to Burns-Wyden Spam 
         bill.

     U.S. Senate,
     Washington, DC.
       Dear Senator:
       Consumers Union urges you to support the McCain Amendment 
     to the Burns-Wyden CAN-SPAM bill. This amendment is an 
     important improvement on the underlying bill. The amendment 
     would provide additional FTC enforcement authority to help 
     consumers curb spam. With this amendment, the bill would hold 
     businesses that use spam to advertise their products and 
     services accountable for actions by spammers who falsify 
     information regarding the origins of the e-mail in order to 
     evade spam filters.
       However, we still have significant reservations about the 
     Burns-Wyden bill, because we believe that consumers will not 
     see a significant reduction in spam without a guarantee that 
     spam is disallowed unless the consumer opts to receive such 
     materials (an ``opt-in''), as well as an appropriate legal 
     remedy for consumers who have been harmed by spammers that 
     circumvent the anti-spam safeguards established in this 
     legislation (a private right of action).
       Consumers Union hopes the Committee will address these 
     substantial consumer concerns before bringing this 
     legislation to the Senate floor.
           Sincerely,
                                                     Chris Murray,
     Legislative Counsel.
                                  ____



                                   Business Software Alliance,

                                    Washington, DC, June 18, 2003.
     Hon. John McCain,
     Chairman, Senate Commerce Committee,
     U.S. Senate, Washington, DC.
       Dear Chairman McCain: On behalf of the member companies of 
     the Business Software Alliance, I write in support of your 
     efforts to amend and report favorably S. 877 to address the 
     ability of the FTC to pursue those who use third parties to 
     send unsolicited commercial email, spam, on their behalf. As 
     the Committee is aware, spam continues to grow at an 
     exponential rate, clogging inboxes, diverting network 
     resources, damaging reputations and brands of responsible 
     companies, and discouraging the use of email as a 
     communications tool.
        Those who deliberately engage third parties to send spam 
     with false or misleading transmission information should be 
     held as accountable as those who click on the send button. By 
     taking away the financial incentive to send spam, the 
     potential interest of a responsible company to utilize such a 
     deceptive form of marketing to reach customers now or in the 
     future would evaporate.
        As you finalize the language of your amendment and proceed 
     to consideration on the Senate floor prior to markup, we look 
     forward to working with you and your staff on ways to further 
     pursue spammers. BSA believes that a combination of 
     legislation, technology, and enforcement is the right 
     approach. A copy of our principles regarding spam is attached 
     for your review.
       Please contact me or Joe Keeley in BSA's office at (202) 
     872-5500 should you have any questions about the BSA position 
     on spam.
           Sincerely,
                                                 Robert Holleyman,
     President and CEO.
                                  ____

       Dear Senator McCain: We would like to thank you for 
     scheduling this markup of S. 877, the Burns-Wyden CANSPAM 
     Act. Senators Burns and Wyden have been true leaders in the 
     effort to address the spam problem working with industry and 
     public interest groups to refine their legislation over the 
     last two sessions.
       CDT is conducting a consultative study on the most 
     effective ways to prevent spam while still protecting privacy 
     and free expression. At this time, we have not endorsed any 
     specific bill. We look forward to continue working with you 
     and Senators Burns and Wyden on this important issue as the 
     legislative process unfolds.
       In this context, we have reviewed your amendment to extend 
     FTC enforcement authority to businesses knowingly promoted 
     through electronic mail with false or misleading 
     transmission. We believe that this amendment will help the 
     FTC take action against wrongdoers. CDT supports its 
     inclusion in this bill and into the larger discussion on 
     preventing unsolicited commercial email. We hope that this 
     provision--in concert with effective baseline federal 
     legislation, new anti-spam technologies and industry 
     efforts--will help to begin to turn the rising tide of 
     unwanted email.
           Sincerely,

                                                 Ari Schwartz,

                                               Associate Director,
     Center for Democracy and Technology.
                                  ____

                                                    June 18, 2003.
     Hon. John McCain,
     Chairman, Commerce, Science and Transportation Committee, 
         U.S. Senate, Washington, DC.
       Dear Mr. Chairman: I am writing on behalf of the U.S. 
     Chamber of Commerce, the world's largest business federation, 
     representing more than three million businesses of every 
     size, sector and region, regarding S. 877, the CAN SPAM Act.
       Spam has become more than a nuisance--it has become so 
     overwhelming that all aspects of the business community, from 
     ISPs who have to invest millions of dollars in bandwidth, to 
     retailers who have seen their opt-in emails deleted along 
     with the spam and pornography, and everyone in between, would 
     like to see this problem eradicated. We believe that stopping 
     spam is going to take a multi-pronged effort, including 
     technology, increased FTC enforcement, and enhanced ability 
     of ISPs to go after the bad actors.
       Therefore, I would like to commend Senators Burns and Wyden 
     for their relentless pursuit of legislation to fill in a key 
     piece of the puzzle regarding this issue. The CAN

[[Page S13022]]

     SPAM Act has been improved significantly, although it still 
     requires some modifications, mostly related to liability 
     issues that could potentially subject even legitimate 
     companies who communicate with their customers through opt-in 
     communications to potential frivolous, but expensive, 
     liability.
       I would also like to specifically commend Chairman McCain, 
     and to offer our strong support for his amendment. There are 
     two principal issues that the Committee's educational hearing 
     on spam helped to clarify: the extent to which businesses, 
     whose products are promoted by the deluge of spam, are in 
     realty responsible for the amount of spam that permeates the 
     Internet; and the difficulty of finding actual ``spammers.'' 
     The Chairman's amendment addresses both of these concerns, 
     and does so in a way that specifically targets those 
     underlying problems. In particular, the amendment empowers 
     the FTC, who has the expertise to find and stop the promoted 
     businesses, to go after those who actually benefit from 
     increased volume of spam--the ``companies'' that hire 
     spammers to sell their products and attract consumers to 
     their web sites.
       Therefore, the Chamber urges the Committee to approve this 
     important component of the fight against spam, including the 
     McCain amendment, and we look forward to working with the 
     Committee to further improve the legislation as it moves to 
     the floor.
           Sincerely,
     R. Bruce Josten.
                                  ____



                                                       Yahoo!,

                                                    June 18, 2003.
     Hon. John McCain,
     Chairman, Senate Commerce, Science and Transportation 
         Committee, Senate Russell Building, Washington, DC.
       Dear Chairman McCain: Yahoo! supports your amendment to S. 
     877, the CAN Spam Act of 2003, to hold the owners of websites 
     who knowingly employ spammers using fraudulent means to 
     deliver their advertisements.
       The hearing on spam held by your committee revealed 
     significant changes in the marketplace. The volume of spam 
     has grown in exponential terms, and it is extremely difficult 
     to track down spammers who use fraud to conceal themselves. 
     Your amendment takes a new approach to finding these 
     spammers--getting at their revenue source. When a website 
     owner know the person advertising its website is using fraud 
     to get its message out, it must be held responsible. The FTC 
     will be empowered to pursue those who allow such techniques 
     to be used. This has the potential to put fraudulent spammers 
     out of business, as their customers refuse to work with them. 
     This, in turn, has potential to dramatically affect the 
     volume of spam crossing the networks of email service 
     providers. We are encouraged by this creative approach to get 
     at spammers from a new direction.
       We also commend you for being absolutely true to your word 
     to bring before your committee legislation to address the 
     problem of spam early in this session. We look forward to 
     working with you and other members of the committee to bring 
     anti-spam legislation to the floor of the Senate before the 
     August recess.
           Sincerely,
                                                    John Scheibel,
                                    Vice President, Public Policy.

  Mr. McCAIN. Madam President, the House will adopt a similar provision 
in any House spam bill. I have received support for the provision from 
every sector involved in the spam debate--consumers' groups, e-mail 
providers, marketers, advertisers, online and offline retailers, 
technology companies and the U.S. Chamber of Commerce.
  I urge my colleagues to join me in responding to the demands of 
millions of American consumers in doing all that we can to try to stop 
spam. I urge them to support passage of the CAN-SPAM Act.
  My comments were a little lengthy, and I apologize. This is a very 
serious and important and complex issue, as I stated at the beginning 
of my remarks. That is why my two colleagues have spent 4 years working 
on this issue. I think they would be the first to agree that this may 
not stop spam.
  There are some very smart people out there who will do everything 
they can for avoidance, including this issue I mention of organizations 
outside the United States. For us to do nothing would be a great 
disservice to millions of Americans, including the young ones, the 
majority of whom in America are regular users of computers.
  I thank my colleagues, Senator Wyden and Senator Burns. For the 
benefit of my colleagues, we have three or four amendments. Maybe one 
or two might require a vote. I hope we can dispose of this legislation 
in a fairly short period of time.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BURNS. Madam President, I thank Senator McCain, the chairman of 
the full Committee on Commerce, for his diligence and insight on this, 
and the ranking member, Senator Hollings. He laid out the facts. I will 
not rehash everything he said because his numbers are right.
  Also I thank my good friend from Oregon, Senator Wyden. We have 
worked on this bill for 4 years. It is not an easy piece of legislation 
to put together.
  The simplest piece of legislation we ever put together, I say to 
Senator Wyden, was the E 9-1-1 which is probably the best public safety 
piece of legislation we have ever passed. It sounded like a no-brainer, 
and it only took 2 years, so this must have been really complicated. I 
thank you for your efforts. It was a pleasure working with you.
  Also, two Senators not on the floor who have not been mentioned are 
Senator Hatch and Senator Leahy. We appreciate their cooperation 
incorporating a significantly expanded criminal package in this law.
  The extent of bipartisan cooperation on this issue is no surprise, of 
course, given the deluge of spam to the consumers and what they face in 
their inbox each day. The cost of business, the cost to individuals, is 
escalating and wide ranging.
  The chairman asked a valid question: Does this piece of legislation 
protect us from spam? It can have an effect on people thinking twice 
before they send it. That is the answer. I have contended all along, as 
my colleagues on the Commerce Committee have contended, that industry 
is going to have to come along and get together, talk about the 
technologies it takes to keep out unwanted mail or some organization or 
technology that ferrets out the bad people but allows some in the 
industry to be able to send some messages of what would be considered 
spam today.

  This especially affects people in rural areas. In Montana we have 
people using the Internet who have to incur long-distance charges to 
their ISPs. Servers all over the country have difficulty in blocking 
spam. They are saying the systems are jammed up. The CAN-SPAM bill 
empowers consumers and grants additional enforcement authority to the 
Federal Trade Commission to take action against spammers and allows 
State attorneys general to take action if they see fit.
  The bill also provides additional tools to end this online 
harassment, allowing users to remove themselves from mass email lists 
and imposing steep fines up to $3 million on spammers. In cases where 
outright deception is involved, penalties will be unlimited. That is a 
big point.
  The chairman also brings up another point: unwanted and pornographic 
mail. In my State of Montana, something else is emerging regarding 
protection of our children: sexual predators. This has to do with how 
they work in our homes with our children. There are a couple of 
amendments we will deal with as they come up.
  I have a constituent in Montana. If you do not think it does not cost 
companies money, Jeff Smith, who built a cutting-edge fiber hotel in 
Missoula, MT, says unwanted spam costs his business about $300,000 a 
year. His company is worth $2.5 million, so his costs are real.
  Not only do we pass legislation, but I will participate in an I-SAFE 
conference in Billings on Friday at Castle Rock School on how to deal 
with this unwanted and pornographic mail that comes into our homes on 
the Internet.
  I thank my chairman, Senator McCain, for his patience. I have worn 
him out a couple of times. He yells back, though, pretty well.
  I thank my friend from Oregon, too, who has worked very hard on this 
issue.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Madam President, kingpin spammers who send out emails by 
the millions are threatening to drown the Internet in a sea of trash. 
The American people want it stopped. Every single day the Senate 
delays, these big-time spammers, the ones who are trying to take 
advantage of the open and low-cost nature of the Internet, gives them 
another opportunity to crank up their operations to even more dizzying 
levels of volumes.
  Every Member of the Senate is hearing from citizens. This is a 
consumer abuse that is visited on millions of people every day. It is 
now time to put in

[[Page S13023]]

place strong enforcement tools to protect the public.
  Many are asking, what is the role of Federal legislation? My 
colleagues have talked a bit about there not being a silver bullet. The 
key is to pass this bill and come down on the violators with hobnail 
boots. It is fair to say a lot of the big-time abusers are not exactly 
quaking today about the prospect of Senate action. They are not 
technological simpletons. They are very savvy and they figure any law 
that is passed by the Senate they can get out in front of.
  What is going to be important is for those who are charged with 
enforcement--the Federal Trade Commission, the criminal authorities, we 
give a role to the State attorneys general, the Internet service 
providers--when this bill is signed into law, to bring a handful of 
actions very quickly to establish that for the first time there is a 
real deterrent, there will be real consequences when those big-time 
spammers try to exploit our citizens. When the bill takes effect, for 
the first time those violators are going to risk criminal prosecution, 
Federal Trade Commission enforcement, and million-dollar lawsuits by 
the State attorneys general and Internet service providers.
  The reason that is the case is because big-time spammers have to 
violate this bill in order for their sleazy business to work. If they 
do not hide their identities, their messages end up getting filtered 
out by the Internet service providers. If they do not use misleading 
subject lines, people are going to click the messages straight into the 
trash, unread. It is costly to deal with thousands of demands for 
consumers to be removed from the lists. The day this bipartisan 
legislation becomes law, for the first time big-time spamming will 
become an outlaw business.
  It is worth noting when Senator Burns and I started this effort 
nearly 4 years ago, we had the strong support of Senator McCain. 
Senator Hollings has been tremendous to me. I got involved in this 
shortly after joining the Commerce Committee. A lot of people asked, 
why in the world would Conrad Burns and I be spending our time on 
something like this. They essentially intimated this was not the kind 
of issue important enough for the Senate. They said, Senators deal with 
key matters. They deal with war and peace and entitlement programs. Why 
in the world would the Senate get involved with something like spam. It 
was only 6 to 8 percent when we started in 2000. Why is the Senate 
spending its time on that kind of concern? Suffice it to say, nobody is 
saying any longer spam is just a minor annoyance. Nobody is saying the 
delete key is now going to be a sufficient solution to the problem.

  This is now something that threatens this medium. Spam, in the view 
of experts, and in my view, stunts the growth of e-commerce. And if it 
continues at the rate of growth we have seen in the last few years, I 
think it will engulf the entire medium.
  So something the American people use every day, something that is 
considered a vibrant, exciting tool, that has empowered millions of 
people to learn, to be part of cultural activities, to start small 
businesses--if nothing is done, if somehow this legislation goes by the 
board or the Senate and House cannot agree, I think what we are seeing 
in the days ahead is a genuine threat to the entire medium.
  So with respect to the specifics of the bill, I think there are a 
number of key provisions. One I have stressed is the question of 
misleading identities because I think that goes right to the heart of 
how you set in place a strong enforcement regime.
  But I also emphasize the role of the States here this afternoon. At 
this point, over half the States have enacted State-level spam 
legislation. It is pretty easy to see why the States have acted. They 
are frustrated that the Congress has not moved.
  But I believe a State-by-State approach cannot work in this area. The 
numerous State laws to date certainly have not put in place a 
coordinated effort against spam. Neither the Internet nor the big-time 
spammers is sitting around saying: Let's tip our hat to State 
jurisdictions. And certainly an e-mail address, unlike a phone number, 
does not reveal the State in which the holder of the address is 
located. So compliance with a patchwork of inconsistent State laws is 
virtually impossible, and spammers do not even go through the motions 
of trying.
  What is needed is a uniform, nationwide spam standard to put the 
spammers on notice and to empower the consumers to have an enforcement 
regime consistent with their reasonable expectations.
  Having emphasized the importance of a nationwide, uniform standard in 
this area, the legislation does preserve an important role for the 
States.
  First, the State laws that address deception in spam--deception in 
spam--would be preserved. Second, general consumer protection fraud and 
computer abuse laws would remain enforceable as well. And third, the 
bill authorizes States' attorneys general to use the Federal statute to 
prosecute spammers.
  The bottom line is, our States, which have done so much important and 
innovative work in the area of consumer protection, are going to remain 
active and important partners in the battle against spam.
  Shortly, we will be talking about the Do Not E-mail Registry. I 
commend Senators Schumer and Dayton. Both of them have introduced 
legislation in this area. They deserve a great deal of credit with 
respect to their patience on this legislation. And we know it is a 
challenge. The telephone Do Not Call list is certainly facing a lot of 
battles.
  But I think this is an important idea. I think it is an idea that 
makes a genuine contribution. It certainly is one that the American 
consumer wants. We are going to work with the sponsors, Senator Schumer 
and Senator Dayton, and others who have been so interested in this to 
address the various questions that have been brought up with respect to 
feasibility.

  I also commend Senator Nelson of Florida. These big-time spammers--
there are only a few hundred of them. I think Senator McCain and I were 
struck, as we listened to the debate, at the fact that we are talking 
about a few hundred big-time violators. They seem to have gravitated to 
a couple States, particularly Florida and Texas.
  Senator Nelson has been very interested in ensuring that there are 
tough enforcement provisions in this legislation. I share his view that 
we ought to use all of the enforcement tools, including measures such 
as the RICO statute, against these particularly reprehensible 
violators. I commend Senator Nelson for this effort as well.
  Finally, as we put together a coordinated game plan against the 
spammers, I would also like to emphasize that we expect our trading 
partners, and the many countries that look to do business with the 
United States, to play a more activist role in this area. As sure as 
night follows day, some of these kingpin spammers are going to just 
move offshore and set up shop.
  So as we look to the future, I have stressed enforcement. I think we 
need to see aggressive enforcement action the day this bill is signed 
into law. Then we have to push our trading partners around the world to 
work with us to ensure that, as part of a coordinated strategy, we are 
preventing the big-time violators from simply closing down in the 
United States and moving offshore.
  I have tried to specialize in technology issues in my time in the 
Senate. My State cares greatly about this issue. I have been fortunate 
to have a chairman in Senator McCain who has always encouraged these 
efforts, to deal with Internet taxes, digital signatures, Y2K 
liability--and the list goes on and on. And Senator Hollings, who is 
not in the Chamber, has been extraordinarily supportive of my 
involvement in these issues.
  But I think it is fair to say that this spam question--of all the 
technology issues we have tackled in the last few years in the Commerce 
Committee, I cannot think of another one that has inflamed consumers 
more, has been emphasized more to me at townhall meetings.
  I can tell the Senate, at the time when we were all concerned about 
the well-being of our troops and the conflict in Iraq, folks would also 
say, in addition to standing up for our troops: Make sure you do 
something about spam as well. I think it is indicative of how much 
concern there is in the country with respect to these kingpin spammers 
who really do put at risk--I do not say this lightly--an entire medium 
that has made such a difference and been so important for millions of 
Americans.

[[Page S13024]]

  We are going to deal expeditiously with the amendments. A number of 
colleagues have already asked of the managers what we thought the 
timetable of this bill would be. My guess is, we can deal with this 
legislation certainly within the next couple of hours, at most.
  We urge Senators who have an interest in this matter to come to the 
floor. This is an opportunity for the Senate to stand up for the 
consumer.
  We are not going to overpromise. We are not going to say that the day 
this bill is signed, spam will magically vanish into the vapor. But 
this legislation, coupled with an enforcement strategy that has the 
Federal Trade Commission, criminal authorities, pushing spam as it 
relates to these big-time violators up the priority list of the tasks 
that they face--that kind of strategy can make a difference.
  Madam President, with that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Madam President, I believe the Senator from Oregon has a 
technical amendment and maybe would like to propose that at this time. 
It is my understanding that the Senator from New York, Mr. Schumer, is 
on his way over to propose his Do Not Spam amendment.
  It is also my understanding that Senator Hatch, Senator Santorum, and 
Senator Corzine are the ones who have amendments. I would urge them to 
come forward when it is convenient so we can dispense with those 
amendments in a timely fashion.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.


                           Amendment No. 1891

  Mr. WYDEN. Madam President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from Oregon [Mr. Wyden], for himself and Mr. 
     Burns, proposes an amendment numbered 1891.

  The amendment is as follows:

  (Purpose: To clarify the provision prohibiting false or misleading 
           transmission information, and for other purposes)

       On page 37, lines 12, after the comma, insert ``whether or 
     not not displayed,''.
       On page 44, line 20, strike ``false or misleading.'' and 
     insert ``materially false or materially misleading.''.
       On page 45, line 2, strike ``misleading; and'' and insert 
     ``materially misleading;''.
       On page 45, line 5, strike ``false or misleading.'' and 
     insert ``materially false or materially misleading; and''.
       On page 45, between 5 and 6, insert the following:
       ``(C) if header information attached to a message fails to 
     identify a protected computer used to initiate the message 
     because the person initiating the message knowingly uses 
     another protected computer to relay or retransmit the message 
     for purposes of disguising its origin, then such header 
     information shall be considered materially misleading.''.
       On page 49, between lines 11 and 12, insert the following:
       (6) Materiality defined.--For purposes of paragraph (1), an 
     inaccuracy or omission in header information is material if 
     it would materially impede the ability of a party seeking to 
     allege a violation of this Act to locate the person who 
     initiated the message or to investigate the alleged 
     violation.
       On page 50, beginning in line 24, strike ``establish'' and 
     insert ``register for''.
       On page 51, after line 22, insert the following:
       ``(d) Supplementary Rulemaking Authority.--The Commission 
     may be rule--
       ``(1) modify the 10-business-day period under subsection 
     (a)(4)(A) or subsection (a)(4)(B), or both, if the Commission 
     determines that a different period would be more reasonable 
     after taking into account--
       ``(A) the purposes of subsection (a);
       ``(B) the interests of recipients of commercial electronic 
     mail; and
       ``(C) the burdens imposed on senders of lawful commercial 
     electronic mail; and
       ``(2) specify additional activities or practices to which 
     subsection (b) applies if the Commission determines that 
     those activities or practices are contributing substantially 
     to the proliferation of commercial electronic mail messages 
     that are unlawful under subsection (a).''.
       On page 58, beginning in line 16, strike ``jurisdiction or 
     in any other court of competent''.
       On page 62, beginning in line 14, strike ``defendant, or in 
     any other court of competent jurisdiction, to--'' and insert 
     ``defendant--''.
       On page 65, beginning in line 7, strike ``for any such 
     statute, regulation, or rule that'' and insert ``to the 
     extent that any such statute, regulation, or rule''.
       On page 65, line 16, strike ``State laws'' and insert 
     ``other State laws to the extent that those laws relate''.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Madam President, I offer this amendment on behalf of 
myself and Senator Burns. It is technical in nature. I know of no 
opposition.
  It clarifies that header information that is technically false, but 
in such a minor way as to be nonmaterial, will not be actionable under 
the legislation.
  It clarifies that spammers who knowingly route messages through what 
are called open relays in order to erase the message's originating 
information--which is a technique used by these big-time spammers--will 
be treated as having used false or misleading header information.
  It permits the Federal Trade Commission to modify the bill's deadline 
for how quickly ``opt-out requests'' must be processed. Currently, the 
bill says that 10 business days after receiving a consumer's opt-out 
request, any further e-mails from the sender become punishable.
  The amendment permits the Federal Trade Commission to modify that 
time period if it finds that a different period would be appropriate. 
It permits the Federal Trade Commission, if it identifies new and 
particularly nefarious techniques used by spammers, to add those 
techniques to the list of what are called aggravated violations so that 
spammers who use those techniques would be subject to higher penalties.
  Finally, this amendment, which has the support of Chairman McCain and 
Senator Hollings, would clarify that any lawsuits for violations of 
Federal spam rules should be brought in Federal court. It is 
noncontroversial in nature. I urge its passage.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Madam President, we support the amendment. It is helpful 
to the legislation. I urge its adoption.
  The PRESIDING OFFICER. Is there further debate?
  If not, the question is on agreeing to amendment No. 1891.
  The amendment was agreed to.
  Mr. McCAIN. Madam President, I move to reconsider the vote.
  Mr. WYDEN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 1892

  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Madam President, I have an amendment at the desk.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from New York [Mr. Schumer], for himself, Mr. 
     McCain, Mr. Hollings, and Mr. Graham of South Carolina, 
     proposes an amendment numbered 1892.

  Mr. SCHUMER. I ask unanimous consent that reading of the amendment be 
dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

 (Purpose: To authorize the Commission to implement a nationwide ``Do 
                         Not E-mail'' registry)

       On page 66, strike lines 1 through 11 and insert the 
     following:

     SEC. 9. DO-NOT-E-MAIL REGISTRY.

       (a) In General.--Not later than 6 months after the date of 
     enactment of this Act, the Commission shall transmit to the 
     Senate Committee on Commerce, Science, and Transportation and 
     the House of Representatives Committee on Energy and Commerce 
     a report that--
       (1) sets forth a plan and timetable for establishing a 
     nationwide marketing Do-Not-E-mail registry;
       (2) includes an explanation of any practical, technical, 
     security, privacy, enforceability, or other concerns that the 
     Commission has regarding such a registry; and
       (3) includes an explanation of how the registry would be 
     applied with respect to children with e-mail accounts.
       (b) Authorization To Implement.--The Commission may 
     establish and implement the plan, but not earlier than 9 
     months after the date of enactment of this Act.
  Mr. SCHUMER. Madam President, I offer this amendment on behalf of 
myself, Senator Graham of South Carolina, Senator McCain, and Senator 
Hollings. I thank my good friend, Senator Lindsey Graham, who worked 
long and hard on this issue with me. Senator Graham and I have been 
working on quite a few pieces of legislation together. He is a good 
legislator and a fighter for the things in which he believes. We do not 
agree on everything, to say the least, but it is a pleasure to work 
with him.

[[Page S13025]]

  I thank my colleagues, Senator Burns and Senator Wyden, both of whom 
have worked long and hard on this legislation for many years. They both 
were willing to work with me and accommodate some changes which I hope 
make the legislation better. I believe they do. But the foundation of 
this bill is their hard work. This is a good day for both of them 
because they have spent a long time and they deserve a great deal of 
accolades for their hard work on this important legislation which, 
hopefully, will pass today.
  I thank my colleague, Senator Hollings, ranking member of the 
Commerce Committee, who offers this amendment along with myself, 
Senator Graham, and Senator McCain. We are all going to miss Fritz 
Hollings. He is one of the true gems of the Senate. He is a forthright 
man and a direct man. He is a smart man. He is a principled man. I, for 
one, know that my amendment might not have happened, certainly wouldn't 
be in the form it is now, without his intervention. I thank him for 
that.
  Finally, Senator McCain and I have worked on a whole number of things 
together. It is a pleasure to work with him. Again, he is a man of his 
word. He is able to bring different people together to produce good 
legislation. He cares about the average person. He never lets any of 
the special interests get in his way. We wouldn't be here today without 
the Senator's leadership. I thank him very much.
  Let me begin by saying how important this whole bill is to the 
continued vitality of e-mail and the Internet itself. Unsolicited e-
mail has grown at astronomical rates over the past months. It is safe 
to say we are now under siege. Armies of online marketers have overrun 
e-mail inboxes across the country with advertisements for herbal 
remedies, get-rich-quick schemes, and, unfortunately, pornography. What 
was a simple annoyance last year has become a major concern this year 
and could cripple one of the greatest inventions of the 20th century 
next year if nothing is done.
  Way back in 1999, the average e-mail user received just 40 pieces of 
unsolicited commercial e-mail, spam, each year. This year the number is 
expected to pass 2,500. I know that I am lucky if I don't get 40 pieces 
of spam every day. As a result, a revolution against spam is brewing as 
the epidemic against junk e-mail exacts an ever-increasing toll on 
families, businesses, and the economy.
  Let me illustrate this point with a story. My wife and I have two 
wonderful daughters, one of whom is about to complete her first year at 
college; the other, a 14-year-old, is an absolute whiz on the Internet. 
She loves sending and receiving e-mails. As parents, we do our best to 
make sure she has good values and that the Internet is a positive 
experience for her, a device to help her with her school work or learn 
about events taking place around the world, and maybe even a way to 
order the latest In Sync CD, although I think she likes other groups 
better.
  You can imagine my anger and dismay when I saw my daughter on e-mail. 
I would say: Great, she is not watching television. And then you can 
imagine my dismay when I discovered that not only was she a victim of 
spam like myself, but like all e-mail users, much of the junk mail she 
was receiving advertised pornographic Web sites. Some of the things 
that crossed her e-mail were things I would not want to see, let alone 
my 14-year-old daughter. I was and remain virtually powerless to 
prevent such garbage from reaching my daughter's inbox.
  Recent surveys unambiguously show that the public shares my concern 
about spam infested with pornography and how it impacts their children. 
The bottom line is, if parents can control what their kids watch on TV, 
they should be able to control what their children are exposed to on 
the Internet. We have parental advisory notices on music, as well as 
ratings for TV shows and movies to ensure that parents are able to keep 
their children from being exposed to what they consider inappropriate. 
So it makes you scratch your head about why there is no safeguard in 
place to enable parents to protect their kids from vulgar e-mail. The 
e-mailing public has been at the mercy of spammers for long enough. 
They want to take back the Internet.
  A recent survey conducted by UnSpam, one of the ardent foes of spam 
and backer of my legislation, and InSightExpress, a research group, 
backs that view. Here is a quick rundown of some of the highlights of 
the survey:
  Almost 9 in 10 parents say they are seriously concerned about their 
children receiving inappropriate e-mail versus 5 percent who don't 
care. Ninety-six percent of parents want the ability to block 
pornography from their children's inboxes. A paltry 2 percent don't 
want that right. Ninety-five percent think children should be given 
extra protection under any anti-spam law, 3 percent undecided. And 93 
percent think spammers should face enhanced penalties for sending 
inappropriate messages to children.

  Our amendment is a solution that will give parents--the only 
solution--the ability to protect their children from offensive and 
obscene e-mail spam by registering their children's e-mail address. 
Parents across the country are increasingly worried about this problem, 
and we should do the right thing by giving them a registry. Parents and 
children are not the only ones who will benefit from a no e-mail 
registry. Business owners and ISPs across the Nation can identify with 
the frustration many of us feel in the battle against spam. With 
surveys showing that nearly 50 percent of e-mail traffic qualifies as 
spam, businesses spend millions of dollars each year on research-
filtering software and new servers to deal with the ever expanding 
volume of junk e-mail being sent through the pipes.
  According to Ferris Research, spam costs businesses in the United 
States $10 billion each year in lost productivity, consumption of 
information technology resources, and help desk time.
  That is $10 billion that should be spent on growing American 
businesses and jobs instead of fighting spam.
  The Do Not E-mail Registry created by the FTC would allow businesses 
to cut costs and improve productivity in the workplace by giving them 
the ability to register their entire domain names. Very important to 
businesses.
  Some have expressed concern about creating a list of e-mail addresses 
that spammers could exploit. The FTC has already said it is 
technologically possible to create and secure the list. This is no 
longer a worry and one of the breakthroughs we made in the last few 
months that are allowing this legislation to come to the Senate floor.
  In fact, we know that the database of addresses can be protected by 
military-caliber encryption so that its valuable contents will not fall 
into the wrong hands.
  I want to take a few minutes to talk about the underlying bill and 
other amendments, and then I will get into mine.
  First, I commend Senators Burns and Wyden for their long efforts on 
this bill. The bill will, for the first time, set minimum standards for 
all commercial e-mail. It will require all commercial mail to include 
valid return e-mail addresses and physical addresses of the sender. It 
must provide accurate header and router information. And most messages 
will be required to have an opt-out system.
  It does not stop there. In addition to these provisions, it will take 
aim at the mass collection of e-mail addresses and the rampant fraud 
which, according to a report released by the FTC, is present in 66 
percent of junk e-mail.
  I am hopeful that we can add important criminal provisions to these 
civil measures. I know both my colleagues, including Senators McCain 
and Hollings, want to do that. I worked in the Judiciary Committee with 
Senators Hatch and Leahy on a bill that makes it clear that fraud and 
deception in e-mail will not be tolerated. And those who do not heed 
the warnings in this bill will face stiff punishment. These criminal 
provisions will outlaw some of the spammers' favorite tricks.
  About our legislation as well, let me just say it is really important 
that we put in the registry, which, in my judgment, is the best way to 
get at spam. No system is foolproof and, as Mr. Morris of the FTC has 
said, no bill will solve all of the problems. But the registry is the 
most complete, comprehensive way to do it, combined with the criminal 
penalties that we are adding in the Hatch-Leahy-Schumer amendment.
  The minute somebody spams someone on the Do Not Call list, there will 
be an immediate cause of action and criminal prosecution.

[[Page S13026]]

  The good news is that since we know that a large amount of spam comes 
from a small amount of people, we can get after these few people. This 
legislation, as you know, gives the FTC 6 months to come back with a 
comprehensive proposal. We then get 3 months here to examine it to see 
if we want to change it, and then the FTC may implement it. I have 
received--and they have both verbalized this on the Senate floor--
assurances from Senators McCain and Hollings that if the FTC should 
decide they don't want to implement it, or come up with something that 
is unworkable, they will use their clout with the FTC to straighten 
things out and get this done. Otherwise, we in the Congress can 
respond.
  I believe this amendment will allow, without any further action by 
Congress, as long as the House passes it and it stays in the bill--and 
I thank Senator McCain for assuring me that he will not even sign a 
conference report that doesn't have this amendment in it, and I know 
all of my colleagues are for this legislation. But once it passes the 
House and is signed into law, we set the road for a no-call registry. 
It is all downhill after that.

  Within a year, it is my belief we will have that registry and, just 
as the no-call registry was a great success, I believe the no-spam 
registry will be a great success. It will take a little longer, it will 
be a little more difficult, but the same basic popularity and support 
that the American people have given the no-call registry, they will 
give, for sure, to the no-spam registry, and the combination of a good 
proposal that the FTC will have to send to us in 6 months and vigilant 
enforcement, plus the no-spam registry, plus the underlying base of the 
bill, will put a crimp, a real dent in spam.
  Are we ever going to eliminate all spam? For sure not. But is this 
legislation, along with the amendment I am adding, going to be the 
toughest, best approach, and greatly curtail spam? Indeed. It is my 
belief that when we enter these portals a year from now, spam will have 
greatly decreased.
  One of the great inventions of the 20th century, which is now sick 
and ailing, will be healthy and going full steam ahead. The bottom line 
is that this is a very fine day for those who use computers and e-mail 
and for American technology in general. It shows that we can all work 
together and get something done--get something done that the American 
people want.
  I ask my colleagues to support this amendment and the underlying 
legislation. Let's finally do something about one of the greatest 
technological problems that we face right now in this country, the 
proliferation of spam.
  With that, I yield the floor.
  Mr. WYDEN. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SCHUMER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. Madam President, I ask unanimous consent that we adopt 
the amendment and add it to the legislation.
  The PRESIDING OFFICER. Is there further debate?
  The question is on agreeing to the amendment.
  The amendment (No. 1892) was agreed to.


                    Amendment No. 1891, As Modified

  Mr. WYDEN. Madam President, at this time, I ask unanimous consent 
that the previously agreed-to Burns-Wyden technical amendment, No. 
1891, be modified with the change I now send to the desk.
  The PRESIDING OFFICER. Is there objection?
  Without objection, the amendment is so modified.
  The amendment (No. 1891), as modified is as follows:
       On page 67, line 20, strike ``act'' and insert ``act, other 
     than section 9,''.
  Mr. WYDEN. Madam President, this is also a very modest technical 
amendment. This amendment simply ensures that the Do Not E-mail 
Registry proposed would be considered on the timetable that all of the 
parties who have worked on this had intended. It is very 
noncontroversial.
  The PRESIDING OFFICER. The Senator from Florida is recognized.
  Mr. NELSON of Florida. Madam President, I rise to commend the 
Senators who have brought this legislation forward and say how gracious 
they have been to me in working to address the seriousness of this 
issue of spam. Later on, when Senator Leahy comes to the floor, I will 
have a colloquy with him about some of the provisions that are going to 
be submitted in the Hatch-Leahy-Nelson amendment.
  In the meantime, I wanted to commend the Senator from Oregon for his 
leadership. I commend Senator Conrad Burns from Montana for his 
leadership. I commend the Senators for how they saw the problem. They 
saw it years ago, and they have been so persistent. Senator Wyden and 
Senator Burns kept after it. It is an idea whose time has come simply 
by virtue of the fact that people can hardly even use their e-mail now 
it is so cluttered up with unwanted messages.

  Mr. WYDEN. Will the Senator yield?
  Mr. NELSON of Florida. I will be happy to yield.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Madam President, I will be very short.
  Without turning this into a bouquet-tossing contest, let me thank my 
friend from Florida. Of course, many of the worst violators are people 
I call kingpin spammers who are located in his home State. The Senator 
from Florida brought it to the attention of Senator Burns and I that to 
have an effective enforcement strategy, we had to have in place tools 
that would deal with the kind of shady operators who are present in his 
home State.
  The Senator from Florida has hammered on that message. I think by the 
time we are done this afternoon and have Senator Leahy on the floor as 
well, Senator Nelson's contribution will be especially helpful, not 
just in Florida but in terms of dealing with these kingpin spammers, 
the people who send out millions of e-mail now without consequences.
  I thank my colleague for yielding, and I thank him for keeping this 
issue on the radar.
  Mr. NELSON of Florida. Madam President, I thank Senator Hatch and 
Senator Leahy for working with me in their capacity as leaders of the 
Judiciary Committee in attaching some strong penalties on the most 
egregious kinds of spam.
  Spam is clearly a nuisance, and it impedes the course of commerce. 
When you can't even use your computer because it is so cluttered up, 
that is one thing, but when spam is used for illicit purposes, such as 
child pornography, then that is another thing. That needs to be dealt 
with swiftly and severely.
  By Senator Wyden and Senator Burns working with Senator Hatch and 
Senator Leahy, we have, as part of their amendment--and I think it is 
worth reading. This is a part of the amendment they will offer:

       It is the sense of Congress that spam has become the method 
     of choice for those who distribute pornography and perpetrate 
     fraudulent schemes and also offers fertile ground for 
     deceptive trade practices;
       And it is the sense of Congress that the Department of 
     Justice should use all existing law enforcement tools to 
     investigate and prosecute those who send bulk commercial e-
     mail to facilitate the commission of Federal crimes, 
     including the tools contained in--

  And it lists several chapters of the United States Code, one relating 
to fraud and false statements; another relating to obscenity; another 
relating to the sexual exploitation of children; and another relating 
to racketeering.
  By the adoption of this amendment, we will strengthen the penalties 
and also give a directive to the United States Sentencing Commission, 
which is the normal course of action, that they shall consider 
sentencing enhancements for those convicted of other offenses, 
including offenses involving fraud, identity theft, obscenity, child 
pornography, and sexual exploitation of children, if those offenses 
involve the sending of large quantities of unsolicited e-mail.

  Why is this so egregious? We know what a nuisance it is. One day, I 
went in my Tampa office to check the e-mail. We had a list of single-
spaced e-mail over the last evening filling up--single space, one sheet 
of paper, all unsolicited. That was bad enough. But to a Senate office, 
two of them were pornographic. If that is happening to my Tampa Senate 
office, we can imagine

[[Page S13027]]

what is happening to the e-mail receipt of every consumer in America on 
their computer. It has to stop. This is an attempt to stop it.
  Under the old laws, when we tried to protect against activities such 
as child pornography or taking advantage of senior citizens by some 
extortion or deceptive scheme to bilk them out of money, before we had 
e-mail, the criminal would send out 100, 150 letters to the 
unsuspecting victims on whom they were preying on child pornography or 
on fleecing senior citizens of their assets. That was 100, 150 letters. 
Now with the punch of a button, they can send out 150 million. So we 
see the insidious ability of a criminal mind to prey upon millions of 
people by the use of this very new and fantastic tool that we ought to 
be using for good, not for ill, and that is e-mail.
  This Senator is very happy that this legislation is being considered, 
and we are now going to attach some tough penalties to it for these 
egregious types of activities.
  I also commend the Senator from Arizona, the chairman of our 
committee, and the Senator from South Carolina, the ranking member of 
our committee, for being so vigilant in bringing this legislation to 
the floor.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Madam President, we would like to, obviously, finish the 
bill as expeditiously as possible and yet offer all Members the 
opportunity to propose amendments. As I understand it right now, we 
have pending amendments by Senators Corzine, Santorum, and Hatch.
  As Members know, there is a briefing at 4 p.m. by the Secretary of 
Defense for all Members in room 407. Shortly before 4, I would like to 
propose a unanimous consent agreement to lock in all amendments with no 
time agreements agreed to. I ask my colleagues who may have additional 
amendments to let us know between now and shortly before the hour of 4, 
which is over a half an hour.
  I will also say we are asking Senators Hatch, Santorum, and Corzine 
to come over to offer their amendments so we can dispose of those 
amendments.


                           Amendment No. 1892

  Mr. McCain. Madam President, I wish to make a few comments about 
Senator Schumer's amendment regarding the Do Not Spam list. As Senator 
Schumer pointed out, it authorizes the Federal Trade Commission to 
develop a Do Not Spam list similar to the Do Not Call list which has 
been widely supported by Americans across the country.
  The Senator from New York and I remember when apparently perhaps, in 
the view of some, a misguided member of the judiciary stayed the Do Not 
Call list and the reaction that followed was certainly extraordinary. 
If we are able technologically to develop a Do Not Spam list, I think 
it would be of great assistance to many Americans. So I think the 
Senator from New York has a remarkable idea here.
  As a first step, the FTC, which has testified they have some 
technological reservations about creating such a list, although I am 
sure the FTC would not object to it in principle, but they have some 
reservations, Senator Schumer has modified his amendment so that the 
FTC would be required to submit a report to the Congress within 6 
months. It contains a plan for implementing the Do Not Spam list. The 
FTC would be authorized to implement the list 3 months later, and I 
would certainly urge them to do so.

  As everyone is aware by now, there has been a tremendous amount of 
discussion about this issue. I believe it is a good one and one that 
provides the FTC with the authority to establish such a registry if 
they believe it is the proper mechanism to stop the onslaught of spam 
to consumers.
  I think we have given them the flexibility to come back and show us 
if there are serious problems. If there are serious problems, we would 
be glad to look at them and help resolve those problems through any 
kind of legislative or other assistance we can provide.
  The Schumer amendment also absolutely emphasizes this is an idea that 
has worked in the Do Not Call area and is a concept that should be 
pursued to the fullest extent of our capabilities. So I thank the 
Senator. I also thank Senator Nelson, a valued member of the committee, 
for his involvement in this issue.
  Again, I hope Senators who have amendments will come to the floor and 
let us know about them.
  Mr. SCHUMER. Will my colleague yield?
  Mr. McCAIN. I am glad to yield.
  Mr. SCHUMER. I once again thank my colleague from Arizona for helping 
us with this list and his commitment in terms of keeping this in the 
conference and then making sure the FTC moves forward with this in 
every technological way possible. I very much appreciate it. As I 
mentioned before, the Senator is a true gentleman, a man of his word. 
We would not be here today without his good work.
  Mr. WYDEN. Will the Senator yield?
  Mr. SCHUMER. I think the Senator from Arizona has the floor.
  Mr. McCAIN. I am glad to yield, but first, to add to my remarks, I 
believe Senator Enzi may have an amendment as well.
  I thank my friend from New York for his comments and I yield to the 
Senator from Oregon.
  Mr. WYDEN. I say to the Senator from New York, I appreciate his 
patience on this. I think he knows from the outset my concern was not 
with the nature of this, because clearly empowering consumers to make 
these kinds of choices is essential. What is important is to try to 
figure out how to do this right.
  The Senator from New York knows people change their e-mail addresses 
constantly. In that sense, this is different than a telephone. We all 
understand that if a bad spammer, for example, one of these kingpin 
operators, was to hack into this, what a gold mine for an evil person 
who wanted to exploit our citizens. The Senator from New York has been 
acutely aware of it and that is why he has worked with me, Senator 
Burns, and all of those on the Commerce Committee. I commend him for 
his patience.
  This is an important contribution. We have a lot of work to do, 
because we have seen with the Do Not Call list what the challenge is. I 
personally believe in the telecommunications area we ought to 
establish, as kind of a bedrock principle, that there is a First 
Amendment right to communicate, but there also is a right of the 
consumer to say, I have had it. In effect, that is what the Senator 
from New York is allowing us to do in the spam area, and to do it in a 
responsible way.
  I thank my colleague from Arizona for giving me this time. With a 
little luck, we will be able to dispose of the additional spam 
amendments and send this bill on its way.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Madam President, I again urge my colleagues, particularly 
Senators Santorum, Hatch, Corzine, and Enzi, to come to the floor to 
give us their amendments so we can move expeditiously.
  I also intend to propose a unanimous consent agreement in about 15 
minutes that there be no further amendments in order at that time.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HATCH. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1893

  Mr. HATCH. Madam President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Utah (Mr. Hatch), for himself, Mr. Leahy, 
     Mr. Nelson of Florida, and Mr. Schumer proposes an amendment 
     numbered 1893.

  Mr. HATCH. Madam President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

  (Purpose: To revise the criminal penalty provisions of the bill as 
                   reported, and for other purposes)

       On page 43, beginning with line 11, strike through the 
     matter appearing between lines 10 and 11 on page 44 and 
     insert the following:

     SEC. 4. PROHIBITION AGAINST PREDATORY AND ABUSIVE COMMERCIAL 
                   E-MAIL.

       (a) Offense.--

[[Page S13028]]

       (1) In general.--Chapter 47 of title 18, Untied States 
     Code, is amended by adding at the end the following new 
     section:

     ``Sec. 1037. Fraud and related activity in connection with 
       electronic mail

       ``(a) In General.--Whoever, in or affecting interstate or 
     foreign commerce, knowingly--
       ``(1) accesses a protected computer without authorization, 
     and intentionally initiates the transmission of multiple 
     commercial electronic mail messages from or through such 
     computer,
       ``(2) uses a protected computer to relay or retransmit 
     multiple commercial electronic mail messages, with the intent 
     to deceive or mislead recipients, or any Internet access 
     service, as to the origin of such messages,
       ``(3) falsifies header information in multiple commercial 
     electronic mail messages and intentionally initiates the 
     transmission of such messages,
       ``(4) registers, using information that falsifies the 
     identity of the actual registrant, for 5 or more electronic 
     mail accounts or online user accounts or 2 or more domain 
     names, and intentionally initiates the transmission of 
     multiple commercial electronic mail messages from any 
     combination of such accounts or domain names, or
       ``(5) falsely represents the right to use 5 or more 
     Internet protocol addresses, and intentionally initiates the 
     transmission of multiple commercial electronic mail messages 
     from such addresses,

     or conspires to do so, shall be punished as provided in 
     subsection (b).
       ``(b) Penalties.--The punishment for an offense under 
     subsection (a) is--
       ``(1) a fine under this title, imprisonment for not more 
     than 5 years, or both, if--
       ``(A) the offense is committed in furtherance of any felony 
     under the laws of the Untied States or
       ``(B) the defendant has previously been convicted under 
     this section or section 1030, or under the law of any State 
     for conduct involving the transmission of multiple commercial 
     electronic mail messages or unauthorized access to a computer 
     system;
       ``(2) a fine under this title, imprisonment for not more 
     than 3 years, or both, if--
       ``(A) the offense is an offense under sub-section (a)(1);
       ``(B) the offense is an offense under subsection (a)(4) and 
     involved 20 or more falsified electronic mail or online user 
     account registrations, or 10 or more falsified domain name 
     registrations;
       ``(C) the volume of electronic mail messages transmitted in 
     furtherance of the offense exceeded 2,500 during any 24-hour 
     period, 25,000 during any 30-day period, or 250,000 during 
     any 1-year period;
       ``(D) the offense caused loss to 1 or more persons 
     aggregating $5,000 or more in value during any 1-year period;
       ``(E) as a result of the offense any individual committing 
     the offense obtained anything of value aggregating $5,000 or 
     more during any 1-year period; or
       ``(F) the offense was undertaken by the defendant in 
     concert with 3 or more other persons with respect to whom the 
     defendant occupied a position of organizer or leader; and
       ``(3) a fine under this title or imprisonment for not more 
     than 1 year, or both, in any other case.
       ``(c) Forfeiture.--
       ``(1) In general.--The court, in imposing sentence on a 
     person who is convicted of an offense under this section, 
     shall order that the defendant forfeit to the United States--
       ``(A) any property, real or personal, constituting or 
     traceable to gross proceeds obtained from such offense; and
       ``(B) any equipment, software, or other technology used or 
     intended to be used to commit or to facilitate the commission 
     of such offense.
       ``(2) Procedures.--The procedures set forth in section 413 
     of the Controlled Substances Act (21 U.S.C. 853), other than 
     subsection (d) of that section, and in Rule 32.2 of the 
     Federal Rules of Criminal Procedure, shall apply to all 
     stages of a criminal forfeiture proceeding under this 
     section.
       ``(d) Definitions.--In this section:
       ``(1) Loss.--The term `loss' has the meaning given that 
     term in section 1030(e) of this title.
       ``(2) Multiple.--The term `multiple' means more than 100 
     electronic mail messages during a 24-hour period, more than 
     1,000 electronic mail messages during a 30-day period, or 
     more than 10,000 electronic mail messages during a 1-year 
     period.
       ``(3) Other terms.--Any other term has the meaning given 
     that term by section 3 of the CAN-SPAM Act of 2003.''.
       (2) Conforming amendment.--The chapter analysis for chapter 
     47 of title 18, United States Code, is amended by adding at 
     the end the following:

``Sec.
``0137. Fraud and related activity in connection with electronic 
              mail.''.

       (b) United States Sentencing commission.--
       (1) Directive.--Pursuant to its authority under section 
     994(p) of title 28, United States Code, and in accordance 
     with this section, the United States Sentencing Commission 
     shall review and, as appropriate, amend the sentencing 
     guidelines and policy statements to provide appropriate 
     penalties for violations of section 1037 of title 18, United 
     States Code, as added by this section, and other offenses 
     that may be facilitated by the sending of large quantities of 
     unsolicited electronic mail.
       Requirements.--In carrying out this subsection, the 
     Sentencing Commission shall consider providing sentencing 
     enhancements for--
       (A) those convicted under section 1037 of title 18, United 
     States Code, who--
       (i) obtained electronic mail addresses through improper 
     means, including--
       (I) harvesting electronic mail addresses of the users of a 
     Web site, proprietary service, or other online public forum 
     operated by another person, without the authorization of such 
     person; and
       (II) randomly generating electronic mail addresses by 
     computer; or
       (ii) knew that the commercial electronic mail messages 
     involved in the offense contained or advertised an Internet 
     domain for which the registrant of the domain had provided 
     false registration information; and
       (B) those convicted of other offenses, including offenses 
     involving fraud, identity theft, obscenity, child 
     pornography, and the sexual exploitation of children, if such 
     offenses involved the sending of large quantities of 
     unsolicited electronic mail.
       (c) Sense of Congress.--It is the sense of Congress that--
       (1) Spam has become the method of choice for those who 
     distribute pornography, perpetrate fraudulent schemes, and 
     introduce viruses, worms, and Trojan horses into personal and 
     business computer systems; and
       (2) the Department of Justice should use all existing law 
     enforcement tools to investigate and prosecute those who send 
     bulk commercial e-mail to facilitate the commission of 
     Federal crimes, including the tools contained in chapters 47 
     and 63 of title 18, United States Code (relating to fraud and 
     false statements); chapter 71 of title 18, United States code 
     (relating to obscenity); chapter 110 of title 18, United 
     States Code (relating to the sexual exploitation of 
     children); and chapter 95 of title 18, United States Code 
     (relating to racketeering), as appropriate.
  Mr. HATCH. Madam President, I rise today with Senator Leahy, Senator 
Nelson of Florida, and Senator Schumer to offer an amendment to the CAN 
SPAM Act of 2003. This amendment strengthens the act's criminal 
provisions by incorporating key provisions of the Criminal Spam Act of 
2003, which I worked closely with Senators Leahy, Grassley, Schumer, 
Nelson of Florida and others to draft earlier this year and which was 
favorably reported out of the Judiciary Committee. To send an effective 
and adequate message of deterrence to the most egregious spammers, 
stiff criminal penalties must be an element of any comprehensive anti-
spam legislative package.
  Over the course of the past several Congresses we have become more 
and more aware of the problems associated with unsolicited commercial 
e-mail, or spam. Rarely a minute passes that American consumers and 
their children are not bombarded with e-mail messages that promote 
pornographic web sites, illegally pirated software, bogus charities, 
pyramid schemes and other ``get rich quick'' or ``make money fast'' 
scams.
  The rapid increase in the volume of spam has imposed enormous costs 
on our economy--potentially $10 billion in 2003 alone--as well as 
unprecedented risks on our children and other vulnerable components of 
our society. Spam has become the tool of choice for those who 
distribute pornography and indulge in fraud schemes. We all know of 
children who have opened unsolicited e-mail messages with benign 
subject lines only to be exposed to sexually explicit images. We have 
heard of seniors using their hard earned savings to buy fraudulent 
health care products advertised on-line or of being duped into sharing 
sensitive personal information to later find themselves victims of 
identity and credit card theft.
  We cannot afford to stand idle and continue to allow sophisticated 
spammers to use abusive tactics to send millions of e-mail messages 
quickly, at an extremely low cost, with no repercussions. The sheer 
volume of spam, which is growing at an exponential rate, is 
overwhelming entire network systems, as well as consumers' in-boxes. By 
year end, it is estimated that 50 percent of all e-mail traffic will be 
spam. It is no exaggeration to say that spam is threatening the future 
viability of all e-commerce. The time has come to curb the growth of 
spam on all fronts--through aggressive civil and criminal enforcement 
actions, as well as innovative technological solutions.
  The criminal provisions that make up this amendment are intended to 
target those who use fraudulent and deceptive means to send unwanted e-
mail messages. A recent study conducted by the Federal Trade Commission 
demonstrates that this is no small number. According to the FTC, 66 
percent of

[[Page S13029]]

spam contains some kind of false, fraudulent, or misleading 
information, and one-third of all spam contains a fraudulent return e-
mail address that is included in the routing information, or header, of 
the e-mail message. By concealing their identities, spammers succeed in 
evading Internet filters, luring consumers into opening messages, and 
preventing consumers, ISPs and investigators from tracking them down to 
stop their unwelcomed messages.

  This amendment significantly strengthens the criminal penalties 
contained in the CAN SPAM Act by striking its misdemeanor false header 
offense and replacing it with five new felony offenses. The amendment 
makes it a crime to hack into a computer, or to use a computer system 
that the owner has made available for other purposes, as a conduit for 
bulk commercial e-mail. It prohibits sending bulk commercial e-mail 
that conceals the true source, destination, routing or authentication 
information of the e-mail, or is generated from multiple e-mail 
accounts or domain names that falsify the identity of the actual 
registrant. It also prohibits sending bulk commercial e-mail that is 
generated from multiple e-mail accounts or domain names that falsify 
the identity of the actual registrant, or from Internet Protocol, IP, 
addresses that have been hijacked from their true assignees.
  The amendment includes stiff penalties intended to deter the most 
abusive spammers. Recidivists and those who send spam to commit another 
felony face a sentence of up to 5 years' imprisonment. Those who hack 
into another's computer system to send spam, those who send large 
numbers of spam, and spam kingpins who direct others in their spam 
operations, face up to 3 years' imprisonment. Other illegal spammers 
face up to a year in prison. The amendment provides additional 
deterrence with criminal forfeiture provisions and the potential for 
sentencing enhancements for those who generate e-mail addresses through 
harvesting and dictionary attacks.
  I commend Senators Burns, Wyden, McCain, and Hollings for their hard 
work over the course of the past several Congresses on the CAN SPAM 
Act. They have worked diligently to enhance the privacy of consumers 
without unnecessarily burdening legitimate electronic commerce. The 
balance is a difficult one to strike. I compliment these fine Senators 
for being able to strike that balance and get it done.
  I believe enactment of the CAN SPAM Act is an important first step 
toward curbing predatory and abusive commercial e-mail, but it is 
certainly not the end. We all recognize that there is no single 
solution to the spam problem. While we must critically and continually 
monitor the effectiveness of any legislative solution we enact, we must 
pursue other avenues as well. Technological fixes, education and 
international enforcement are integral components to any effective 
solution. To this end, we will need the assistance of private industry 
and our international partners.
  I look forward to working with my colleagues in both Houses as we 
attempt to confront the spam problem on all fronts. I urge my 
colleagues to support this amendment which will strengthen the 
comprehensive legislative package that is before us today.
  Mr. WYDEN. Madam President, will the Senator from Utah yield?
  Mr. HATCH. I am happy to do that.
  Mr. WYDEN. I commend the Senator from Utah for his efforts in this 
area. The contribution the Senator from Utah makes is not just useful 
but it is absolutely critical. We can write bills to fight spam until 
we run out of paper, but unless we have the kind of enforcement the 
Senator from Utah envisions, we are not going to get the job right.
  I am particularly interested in working with the distinguished 
chairman of the Judiciary Committee in making sure we have some 
vigorous oversight after this bill is enacted into law. If after this 
bill is passed we have the prosecutors, the Federal Trade Commission, 
and others bring some tough enforcement actions, that will be a 
tremendously valuable deterrent.
  I would like to work with the distinguished chairman of the committee 
to have some vigorous oversight hearings after this bill has gone into 
effect. That is what it is going to take to make sure we have the teeth 
in this legislation to make a difference. I thank my colleague.

  Mr. HATCH. I thank my colleague for those kind remarks and thank him 
and Senator McCain for their leadership in the Senate.
  I ask unanimous consent to add Senator Grassley as a cosponsor of 
this amendment, No. 1893. Senator Grassley has worked with me and 
Senator Leahy every step of the way and deserves a lot of credit.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Arizona.
  Mr. McCAIN. I thank Senator Hatch and Senator Leahy for their work to 
improve the criminal provisions and strengthen the Burns-Wyden CAN-SPAM 
Act. The active participation of Senator Hatch and his committee on 
this issue has been extremely valuable.
  I join my friend from Oregon in urging Senator Hatch to have 
oversight on how this law is enforced and that it is properly done. We 
face challenges in enforcement of this act, particularly in light of 
the changes in technology that will inevitably occur which will make 
this legislation even harder to enforce than it is today. I thank 
Senator Hatch, and I urge adoption of the amendment.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. NELSON of Florida. I encourage the adoption of this amendment. I 
am one of the cosponsors along with Senator Hatch and Senator Leahy. 
Let me state for the Record the essence of part of a colloquy between 
myself and Senator Leahy.
  We have all been stunned by how pervasive spam has become in e-mail 
traffic. We have experienced the way the clogged inboxes, the unwanted 
solicitations, and the unwelcome pornographic material make a session 
on the computer less productive and less enjoyable.
  I detailed earlier in my remarks the innumerable pornographic 
messages that come into my Senate office computer in my offices back in 
Florida. It is one of the top complaints I receive from my 
constituents. I am very pleased to be working with the Senators from 
Utah and Vermont to impose tough penalties on those who impose this 
garbage on others.
  I am always concerned with the type of spam that goes beyond the mere 
nuisance variety. It is becoming clear with each passing month that 
many criminal enterprises have adopted spam as their method of choice 
for perpetrating criminal schemes. Spammers are now frequently 
perpetrating fraud to cheat people out of their savings, stealing 
people's identities, or trafficking in child pornography. What spam 
allows them to do is to conduct these criminal activities on a much 
broader scale at dramatically reduced costs. They can literally reach 
millions of people at the push of a button.
  I have given the example in the old days that someone would use the 
mail to send out 100 or 150 letters. They would have nefarious schemes 
such as bilking senior citizens out of money or perpetrating child 
pornography. Now they do not send out 150 letters to do it. They punch 
a button and they are sending out 150 million e-mail messages 
perpetrating their schemes of fleecing senior citizens or perpetrating 
child pornography.

  The colloquy I propose with Senator Leahy at his convenience would be 
to reinforce a ban--which is why I had originally introduced S. 1052--
in the Deceptive Unsolicited Bulk Electronic Mail Act. I introduced 
that with Senator Pryor. That is why I have sought, with the help of 
the Senator from Vermont and the Senator from Utah, to include 
provisions in this legislation that make it clear our intent to treat 
the use of spam to commit large-scale criminal activity as the 
organized crime that it is.
  We do it in two ways. First, by working with the United States 
Sentencing Commission in the amendment being offered by the Senators 
toward enhanced sentences for those who use spam or other unsolicited 
bulk e-mail to commit fraud, identity theft, obscenity, child 
pornography, or the sexual exploitation of children.
  Second, we make the seriousness of our intentions clear in this 
amendment by urging prosecutors to use all the tools at their disposal, 
including RICO, to bring down the criminal enterprises that are 
facilitated by the use of spam.
  Specifically, we are talking about the RICO statute which not only 
comes

[[Page S13030]]

with some of the stiffest penalties in the Criminal Code but it allows 
for the seizure of assets of criminal organizations, it allows the 
prosecutors to go after the criminal enterprise, and it allows for 
civil suits brought by injured parties. It is tough enforcement like 
this that will help bring the worst of the spammers to their knees.
  Mr. McCAIN. Madam President, I ask consent that the following 
amendments be the only first-degree amendments in order to the bill and 
that they be subject to second-degrees which would be relevant to the 
first degree to which they are offered: Corzine amendment, Santorum 
amendment, Enzi amendment, Landrieu amendment, and Boxer amendment.
  Mr. LEAHY. Reserving the right to object.
  Mr. WYDEN. I ask unanimous consent to add Senator Harkin's name to 
that list and then I support the unanimous consent.
  The PRESIDING OFFICER. Does the Senator so modify his request?
  Mr. LEAHY. Reserving the right to object.
  The PRESIDING OFFICER. Does the Senator from Arizona so modify his 
request?
  Mr. McCAIN. I do modify my request.
  Mr. LEAHY. Where is the Hatch-Leahy amendment?
  Mr. McCAIN. Pending and about to be adopted.
  Mr. LEAHY. It is not precluded by the unanimous consent request.
  The PRESIDING OFFICER (Mr. Chambliss). It would not be precluded.
  Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, I thank Senator Leahy for his work on this 
amendment, along with Senator Hatch, who lends and contributes a great 
deal of teeth to this bill. I know they have worked very hard.
  As I mentioned to Senator Hatch, as did the Senator from Oregon, we 
know that the Senator and his committee will be involved in the 
oversight of the enforcement of this legislation. We thank you for his 
valuable contribution.
  I urge the sponsors of those amendments, Senators Corzine, Santorum, 
Enzi, Landrieu, Boxer, and Harkin, to please come to the floor in 
courtesy to their colleagues so we can take up and dispose of these 
amendments. Please show some courtesy to your colleagues. If you have 
amendments pending, please come. We are ready for them.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, when the Senator from Arizona asked to make 
his unanimous consent request, I was in the process of answering the 
question of the Senator from Florida, who has spoken to me many times 
about his interest in these areas.
  I appreciate what he has done to strengthen this legislation.
  We keep the authority to set sentences where it belongs, with the 
Sentencing Commission, while remaining deferential, to the discretion 
of prosecutors.
  The provisions from the Senator from Florida make it unmistakably 
clear that Congress expects this legislation to be used not just to 
punish spammers but also to dismantle criminal operations that are 
carried out with spam and other unsolicited bulk e-mail.
  I also would note that the Senator from Florida has spoken about spam 
evolving from being just a nuisance. He is absolutely right. Serious 
crimes are being committed using this medium, which reaches a large 
number of people. Senior citizens are more and more often targeted to 
being bilked out of millions of dollars, and with very little effort on 
the part of the spammers.
  Mr. President, I will engage in a colloquy with Senator Nelson 
because I think it is important for the purposes of the Record. With 
all the work the Senator from Florida has done, I want the Record to be 
very clear.
  Mr. NELSON of Florida. Mr. President, would the Senator from Vermont 
be willing to engage me in a colloquy?
  Mr. LEAHY. I would be pleased to engage in a colloquy with the 
Senator from Florida.
  Mr. NELSON of Florida. Mr. President, I have been stunned, as have so 
many of my colleagues, by how pervasive spam has become in email 
traffic. We have all experienced the way clogged in-boxes, unwanted 
solicitations, and unwelcome pornographic material make a session on 
the computer less productive and less enjoyable. It is one of the top 
complaints that I receive from my constituents, and I am very pleased 
to be working with the Senators from Vermont and Utah to impose tough 
penalties on those who impose this garbage on others.
  But I am also concerned with a type of spam that goes beyond the mere 
nuisance variety. It is becoming clearer with each passing month that 
many criminal enterprises have adopted spam as their method of choice 
for perpetrating their criminal schemes. Spammers are now frequently 
perpetrating fraud to cheat people out of their savings, stealing 
people's identities, or trafficking in child pornography. What spam 
allows them to do is to conduct these criminal activities on a much 
broader scale at dramatically reduced costs--they can literally reach 
millions of people at the push of a button.
  Mr. LEAHY. The Senator from Florida is correct. Nowadays, we see that 
spam has moved far beyond being just a nuisance to people trying to use 
email on their personal computers. Serious crimes are being committed 
using this medium, which can reach large numbers of people in a matter 
of seconds. For example, if a person or organization seeks to commit 
fraud to bilk senior citizens out of their money, with spam they can 
reach millions of potential victims at very low, even negligible costs. 
With such low costs, and such wide reach, even a small rate of success 
can make for a very profitable criminal enterprise.
  Mr. NELSON of Florida. The Senator from Vermont has provided an 
excellent example of the problem that we are trying to address. And 
that is why I have sought, with the help of the Senator from Vermont 
and the Senator from Utah, to include provisions in this legislation 
that make clear our intent to treat the use of spam to commit large-
scale criminal activity as the organized crime that it is.
  We do this in two ways: First, by working with the U.S. Sentencing 
Commission toward enhanced sentences for those who use spam or other 
unsolicited bulk email to commit fraud, identity theft, obscenity, 
child pornography, or the sexual exploitation of children.
  Second, we make the seriousness of our intentions clear by urging 
prosecutors to use all tools at their disposal to bring down the 
criminal enterprises that are facilitated by the use of spam. Among 
other things, we are talking about the RICO statute, which not only 
comes with some of the stiffest penalties in the criminal code, but 
also allows for the seizure of the assets of criminal organizations, 
and for civil suits brought by injured parties. It is tough enforcement 
like this that will help bring the worst of the spammers to their 
knees.
  Mr. LEAHY. The Senator from Florida has made me aware of his interest 
in these provisions on several occasions, and I appreciate his 
contributions to this effort. They strengthen the legislation in 
important ways. While keeping the authority to set sentences where it 
belongs--with the Sentencing Commission--and while remaining 
deferential to the discretion of prosecutors, these provisions makes 
unmistakably clear that Congress expects this legislation to be used 
not just to punish spammers, but also to dismantle the criminal 
enterprises that are carried out with spam and other unsolicited bulk 
e-mail.
  Mr. NELSON of Florida. I thank the Senator from Vermont for his 
outstanding leadership on this issue, and for his cooperation in 
including my amendments in the legislation.
  Mr. LEAHY. Mr. President, it is increasingly obvious that unwanted 
commercial e-mail is more than just a nuisance. Businesses and 
individuals sometimes have to wade through hours of spam. It makes it 
impossible for them to do their work. It slows down whole enterprises.
  In my home State of Vermont, one legislator logged on to his server 
and found that two-thirds of the e-mails in his inbox were spam. Our 
legislator is a citizen or legislature. He does not have staff or 
anything else. This was after the legislator had installed spam-
blocking software. His computer stopped about 80 percent of it. But 
even

[[Page S13031]]

after he blocked 80 percent, two-thirds of the e-mail he had was spam.
  The e-mail users are having the online equivalent of the experience 
of the woman in the classic Monty Python skit. She wanted to order a 
Spam-free breakfast at a restaurant. Try as she might, she cannot get 
the waitress to bring her the meal she wants. Every dish in the 
restaurant comes with Spam; it is just a matter of how much. There is 
eggs, bacon, and Spam; eggs, bacon, sausage, and Spam; Spam, bacon, 
sausage, and Spam; Spam, egg, Spam, Spam, bacon, and Spam; Spam, 
sausage, Spam, Spam, Spam, bacon, Spam, tomato, and Spam, and so on. 
Finally, the customer said: I don't like Spam. I don't want Spam. I 
hate Spam.
  Now, I repeat that with apologies to John Cleese and everybody else 
in the Monty Python skit.
  Mr. President, anybody who goes on e-mail, including every member of 
my family down to my 5-year-old grandchild, knows how annoying spam can 
be.
  A Harris poll taken last year found that 80 percent of the 
respondents viewed spam as ``very annoying'' and 74 percent wanted to 
make it illegal.
  Some 30 States now have anti-spam laws but it is difficult to enforce 
them.
  There are actually billions of unwanted e-mails that are blocked by 
ISPs every day. Hundreds of millions of spam e-mails get through just 
the same.
  Now, we have to be very careful when we regulate in cyberspace. We 
must not forget that spam, like more traditional forms of commercial 
speech, is protected by the first amendment. We cannot allow spam to 
result in the ``virtual death'' of the Internet, as one Vermont 
newspaper put it.
  So what Senator Hatch and I have offered and is being accepted--the 
Hatch-Leahy-Nelson-Schumer amendment--would, first, prohibit hacking 
into another person's computer system and sending bulk spam from or 
through that system.
  Second, it would prohibit using a computer system that the owner 
makes available for other purposes as a conduit for bulk spam, with the 
intent to deceive the recipient as to where the spam came from.
  The third prohibition targets another way that outlaw spammers evade 
ISP filters: falsifying the ``header information'' that accompanies 
every e-mail and sending bulk spam containing that fake header 
information. The amendment prohibits forging information regarding the 
origin of the e-mail message.
  Fourth, the Hatch-Leahy-Nelson-Schumer amendment prohibits 
registering for multiple e-mail accounts or Internet domain names and 
sending bulk mail from those accounts or domains.
  Fifth, and finally, our amendment addresses a major hacker spammer 
technique for hiding identity that is a common and pernicious 
alternative to domain name registration--that is, hijacking unused 
expanses of Internet address space and using them to launch junk mail.
  Now, penalties under the amendment are tough, but they are measured. 
Recidivists and those who send spam in furtherance of another felon may 
be imprisoned for up to 5 years. The sound of a jail cell closing for 5 
years should focus their attention.
  Large-volume spammers, those who hack into another person's computer 
system to send bulk spam, and spam ``kingpins'' who use others to 
operate their spamming operations may be imprisoned for up to 3 years, 
and so on.
  Then, of course, we direct the Sentencing Commission to look at other 
areas.
  So, Mr. President, I see my colleagues on the floor, Senator Burns 
and Senator Wyden, who have done yeoman work on this legislation. I 
compliment all those who worked together. I certainly compliment the 
two of them, as well as Senator Hatch, Senator Nelson, and Senator 
Schumer. I think we are putting together something that is worth 
passing.
  Mr. WYDEN. Will the Senator yield?
  Mr. LEAHY. Sure.
  Mr. WYDEN. Mr. President, just before he leaves the floor, I thank 
the distinguished Senator from Vermont for all his help. I have already 
told Senator Hatch how incredibly important the enforcement provision 
is. You can write bills forever, but without the enforcement to which 
the Senator from Vermont and the Senator from Utah are committed, those 
bills are not going to get the job done.
  Suffice it to say, when there were a lot of people in public life who 
thought their computers were somehow a TV screen, the Senator from 
Vermont was already leading the Senate and those who work in the public 
policy arena to understand the implications of the medium.
  There is nobody in public life whose counsel I value more on 
telecommunications and Internet policy than the distinguished Senator 
from Vermont. I appreciate his giving me this opportunity to work with 
him on the enforcement provisions. It will be the lifeblood of making 
this bill work.
  Mr. LEAHY. Mr. President, I thank my dear friend from Oregon for his 
far too generous words. I have enjoyed working with him. He has carried 
over from his service in the other body. He has a strong interest in 
this. Just as important as his strong interest is the fact he has 
extraordinary expertise in this area. That is very helpful.
  If you would allow me one quick personal story. This sort of humbles 
you. I like to think I am very knowledgeable on this. My 5-year-old 
grandson climbed in my lap and asked me to log on to a particular 
interactive site for children. It is something he could do himself, but 
we don't let him log on himself because of the problems with some sites 
that appear to be for children, and are anything but.
  So I log on for him, and he climbs up on my lap, takes the mouse out 
of my hand and says: I better take over now because it gets very 
complicated.
  In some ways we are protecting those 5-year-olds because they are the 
next generation using this technology. I thank my friend from Oregon 
and good friend from Montana for the enormous amount of work they have 
done here.
  I yield the floor.
  Mr. BURNS. Mr. President, I might add, Senator Leahy and I serve as 
cochairs on the Internet caucus. We understand the ramifications of 
this new medium that has come upon us, its importance, and all it has 
to offer. Of course, getting rid of spam is one of those things that if 
we don't do it, then I am afraid it will be the one that chokes this 
very new way of communicating and brings us not only information but 
new services.
  I appreciate the work of the Senator from Vermont and thank him for 
it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Mr. President, I have been watching. Everybody is pretty 
much congratulating everybody else. Let me add my congratulations. This 
is an important issue. There are some serious people who have done 
serious work on this matter.
  I don't know where the word spam came from. I suspect someone has 
described that today. It is a luncheon meat in northern Minnesota in 
our region of the country. But spam is a term used to describe those 
unsolicited messages that are sent into your computer. It has become 
much more than just a nuisance. It was not too long ago, perhaps even a 
year or two, these unsolicited notices you receive through e-mail and 
other devices were a nuisance. Now it is a very serious problem. Log on 
to your computer and see what happens. You have intruders in that 
computer, and they are flagging for you gambling sites and dating sites 
and pornography, virtually everything. Go to your e-mail and find out 
how many unsolicited e-mails you have had. You have more friends than 
you thought you had. Dozens and dozens of people and groups are writing 
to you. Most of them, of course, are pornographic, and they are 
unsolicited kinds of messages you wouldn't want to explore, nor would 
you want your family to explore.
  If this afternoon someone drove up in front of your house with a 
truck and knocked on the front door and said: I have some actors in the 
back of this truck of mine, and we want to come into your home because 
we know you have a 10-year-old and a 12-year-old child, we would like 
to put on a show for you, it is going to be a pornographic sex show, 
you would go to the phone and call the police. The police would come 
and arrest them, and they would be prosecuted. Yet there are people who 
come into our homes and put on these pornographic sex shows through the 
computer--yes, to

[[Page S13032]]

unsuspecting children. Yes, it happens all the time. We know it. That 
is why we are trying to determine what can we do to stop it.
  There is a right of free speech, but no stranger has a right to 
entertain 10-year-old kids in your home or our home with pornography. 
No stranger has that right. That does not exist as a right of free 
speech.
  The question is, what kind of legislation can we craft that addresses 
this in a serious way. There is so much spam on the Internet. I am 
describing pornography, but there are so many commercial and other 
devices with unsolicited messages that it almost completely overwhelms 
the use of e-mail. It clogs the arteries of commerce for which the 
Internet and e-mail have been very valuable.
  In the last couple of years, we have a circumstance where 46 percent 
of all e-mail traffic in the month of April this year was spam. It was 
only 18 percent in April of 2002, more than double in just a year. It 
does clog the arteries of commerce. It exposes children to things that 
are harmful and inappropriate. The question is, what can we do about 
it.
  This legislation is an attempt to try to address it. We will best 
congratulate ourselves if and after the legislation is passed, in 
force, and we determine it works. If and when that is the case, then we 
all should say congratulations for having done something useful. We 
have, of course, tried this before. The Supreme Court struck down 
legislation that came from the Commerce Committee dealing with this 
issue. I think this is a better way to approach it. It is more 
serious, more thoughtful, and more likely to be able to meet the test 
of being constitutional.

  We in the Commerce Committee have worked on other issues similar to 
this, not so much dealing with spam but especially protecting children.
  Senator Ensign and I coauthored legislation dealing with a new domain 
name. We are creating a new domain in this country called dot U.S., 
just like there is a domain dot U.K. We will have a new one called dot 
U.S. We decided by legislation we would attach to that domain a 
condition that they must also create a domain within dot U.S. called 
dot kids dot U.S. That will be a domain in which parents know that when 
their children are in dot kids dot U.S., any site in dot kids dot U.S., 
they are going to be seeing things that are only appropriate for 
children. That is going to be a big help to parents.
  If you restrict the child to dot kids dot U.S. and you know that 
child is not going to be exposed to things children should not be 
exposed to, that is legislation that is going to be very helpful.
  Let me also say this piece of legislation dealing with spam is 
similarly helpful. We have a circumstance where what shows up on the 
computers of virtually every American is not only unsolicited messages 
but messages that come from anonymous sources all over the world, 
messages that contain things you don't have any interest in, that are 
grotesque, unwanted, and pornographic. You can't determine where they 
come from.
  This legislation, along with the amendments being offered, moves 
exactly in the right direction to prohibit false and misleading 
transmission of information. It prohibits the knowing use of deceptive 
subject headings, requires a return address or comparable reply message 
so you can figure out who sent it, requires the UCE be self-identified 
as an advertisement or a solicitation. All of these things are very 
important. At the end of time, when we have passed this legislation, it 
is in force, and we determine it is workable, then we will know we have 
done something very significant.
  Let me make one additional point. I think computers and the Internet 
are quite remarkable. It is difficult to find words to describe how 
wonderful it can be. To be in a town like my hometown of nearly 300 
people and have access through the Internet to the biggest library in 
the world, have access on the Internet to the great museums of the 
world. I grew up in a small town, with a high school senior class of 
nine. We had a library the size of a coat closet. With the Internet, 
that school now has a library the size of the largest library in the 
world, the largest repository of human knowledge existing anywhere on 
Earth--the Library of Congress. Yes, that exists in my hometown by 
virtue of the Internet.

  The Internet is remarkable, wonderful, and breathtaking. It opens 
vistas of new opportunities for all Americans. We are dealing with the 
other side of the Internet because there are two sides to this issue. 
The other side contains some very serious issues and problems. We can 
continue to ignore them at our peril, at the peril of our children, and 
at the peril of business and commerce, which relies on the Internet as 
an artery of commerce. We can ignore them or we can address them, as my 
colleagues, Senators Wyden and Burns, chose to do with their leadership 
in the Commerce Committee. I thank them and I also thank the Senator 
from Arizona, Mr. McCain, and Senator Hollings.
  We have a great committee, one on which I am proud to serve. We do a 
lot of work and address a lot of issues. This is but one, but it is a 
very important one and it is a timely piece of legislation to bring to 
the floor. It appears that, based on the unanimous consent request, 
this will now move and, with some amendments being offered, I think we 
will get to final passage. I expect to have a very strong vote by the 
entire Senate because it is a good piece of legislation. The time to do 
this is now and this is the right thing to do.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Montana is recognized.
  Mr. BURNS. Mr. President, I thank my friend from North Dakota for his 
kind words. I tell all Senators, both here and watching, that the Boxer 
amendment has been withdrawn. That gets us down to where we could get 
this bill passed tonight.
  I believe the pending business is the Hatch-Leahy amendment No. 1893. 
I call for its adoption.
  The PRESIDING OFFICER. Is there further debate?
  The question is on agreeing to the amendment.
  The amendment (No. 1893) was agreed to.
  Mr. BURNS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, we are very close to being able to pass 
this bill tonight. This is an extraordinarily important consumer 
measure, a measure that literally touches the lives of millions of 
people every single day. At this point, we have only three amendments 
left. The Senator from New Jersey, Mr. Corzine, has an amendment; the 
Senator from Wyoming, Mr. Enzi, is to offer an amendment with Senator 
Santorum; and then Senator Landrieu has an amendment.
  I am very hopeful we will be able to finish this bill fairly shortly. 
I urge those Senators who have their amendments in order to come to the 
floor at this point. This is legislation that has been worked on for 
more than 4 years. During that time, this problem has grown 
exponentially. A number of Senators have spoken about it, and the 
Senate ought to move ahead.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ALEXANDER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALEXANDER. I ask unanimous consent that I be allowed to speak as 
in morning business for 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                      The Internet Tax Freedom Act

  Mr. ALEXANDER. Mr. President, in our political speeches, Senators, 
especially we Republicans, have a lot to say in defense of the Tenth 
Amendment, that all powers not expressly given to the central 
government are reserved to the States. We are big talkers about local 
control, about State responsibilities, and about State rights.
  Somehow, when we get to Washington and away from home, a lot of that 
goes up in smoke. We start thinking of grand ideas and sending State 
and local governments the bill to pay for our grand ideas. Special 
education for children with disabilities, but we say to the State and 
local governments, you pay the bill. New construction to stop storm 
water runoff, but we

[[Page S13033]]

say to the cities, you pay the bill. Higher standards for roads, we say 
to the States, you pay the bill. New standards for highly qualified 
teachers, you pay the bill. We call these unfunded mandates.
  What I want to talk about today is the worst kind of unfunded 
mandate. Not only do we have grand ideas and are telling State and 
local governments that they have to pay for them, we now want to tell 
them how to pay for them. The latest such example is to tell State and 
local governments that a tax on Internet access or telephones is 
somehow a worse tax, a bad tax they should not be allowed to pursue, 
than a tax on medicine, food, or an income tax.
  I supported a moratorium for 7 years on State and local access to the 
Internet so the Internet could get up and get going, but now it is up 
and going. It ought to be absolutely on its own with other commercial 
activity. Yet our friends in the House of Representatives and some in 
the Senate would not only extend the moratorium on State and local 
taxes on Internet access, they would broaden it.
  This is none of the Congress's business. It is a State and local 
responsibility to decide how to pay the bill to fund State parks, local 
schools, roads, prisons, colleges, and universities. That is what 
Governors do. That is what legislators do. That is what mayors do. That 
is what county commissioners and city council men and women do.
  The inevitable result of such unfunded mandates from Washington, DC, 
telling States what taxes they can and cannot use, is to transfer more 
government to Washington, DC, because here we can print money to pay 
for it. It sounds awfully good to say we are banning a tax, but what we 
are actually doing is favoring one tax over another tax with the 
decision made in Washington, DC.
  For example, if Tennessee's ability to have a broad-based sales tax 
is limited, then the chances that Tennessee will have an income tax are 
higher, or a higher tax on medicine or food, or higher college tuition 
for families to pay. The same goes for Florida, Texas, Washington 
State, or any other State.
  Some say this interference in State prerogatives and local 
prerogatives is justified by the interstate commerce clause of the 
Constitution, and that the Internet is too important to carry its fair 
share of the taxes. I ask: Is access to the Internet more important 
than food? If not, then why not limit the State sales tax on food, 
medicine, electricity, natural gas, water, corporations generally, car 
tags, telephones, cable TV? They are all in interstate commerce. Let us 
limit the tax on all of them from Washington, DC.
  Unless we want to get rid of State and local governments and transfer 
all responsibilities for local schools, colleges, prisons, State parks, 
and roads to Washington, DC, and claim all wisdom resides here, then we 
have no business telling State and local governments how they pay the 
bill for legitimate services.
  We should read the Tenth Amendment to the Constitution and get back 
to our basic job of funding war, welfare, Social Security, Medicare, 
and debt. And leave decisions about what services to provide and what 
taxes to impose to State and local governments and to State and locally 
elected officials.

  Under the rules of the Senate, because this bill imposes costs on 
States without paying for them, it is an unfunded mandate and subject 
to a point of order to pass this bill that would extend the moratorium 
on State and local ability to tax access to the Internet.
  In its cost estimate of September 9, 2003, the Congressional Budget 
Office determined that S. 150, as reported by the Commerce Committee, 
would impose direct costs on State and local governments of lost 
revenues of $80 million to $120 million per year beginning in 2007. 
Because the estimate exceeds the threshold of $64 million for 2007, 
this is an intergovernmental mandate, subject to a point of order. 
According to the Multi-state Tax Commission, the bill has the potential 
to exempt telephone and cable companies from a broad array of State and 
local taxes that could amount to an unfunded mandate on State and local 
governments of up to $9 billion a year. Every Senator who votes to 
overturn the point of order to this bill would be voting for an 
unfunded mandate, which most of us have promised not to do. Let the 
moratorium on access to the Internet die a well-deserved and natural 
death when it expires on November 1 and let us remember the Republican 
Congress 10 years ago promised to end unfunded mandates.
  I ask unanimous consent that certain information from the 
Congressional Budget Act describing unfunded mandates and the point of 
order that is possible to be raised in opposition to such mandates be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [Congressional Budget Office Cost Estimate]

               S. 150--INTERNET TAX NONDISCRIMINATION ACT


 As ordered reported by the Senate Committee on Commerce, Science, and 
                    Transportation on July 31, 2003.

                                Summary

       S. 150 would permanently extend a moratorium on certain 
     state and local taxation of online services and electronic 
     commerce, and after October 1, 2006, would eliminate an 
     exception to that prohibition for certain states. Under 
     current law, the moratorium is set to expire on November 1, 
     2003. CBO estimates that enacting S. 150 would have no impact 
     on the federal budget, but beginning in 2007, it would impose 
     significant annual costs on some state and local governments.
       By extending and expanding the moratorium on certain types 
     of state and local taxes, S. 150 would impose an 
     intergovernmental mandate as defined in the Unfunded Mandates 
     Reform Act (UMRA). CBO estimates that the mandate would cause 
     state and local governments to lose revenue beginning in 
     October 2006; those losses would exceed the threshold 
     established in UMRA ($64 million in 2007, adjusted annually 
     for inflation) by 2007. While there is some uncertainty about 
     the number of states affected, CBO estimates that the direct 
     costs to states and local governments would probably total 
     between $80 million and $120 million annually, beginning in 
     2007. The bill contains no new private-sector mandates as 
     defined in UMRA.

                Estimated Cost to the Federal Government

       CBO estimates that enacting S. 150 would have no impact on 
     the federal budget.

            Intergovernmental Mandates Contained in the Bill

       The Internet Tax Freedom Act (ITFA) currently prohibits 
     state and local governments from imposing taxes on Internet 
     access until November 1, 2003. The ITFA, enacted as Public 
     Law 105-277 on October 21, 1998, also contains an exception 
     to this moratorium, sometimes referred to as the 
     ``grandfather clause,'' which allows certain state and local 
     governments to tax Internet access if such tax was generally 
     imposed and actually enforced prior to October 1, 1998.
       S. 150 would make the moratorium permanent and, after 
     October 1, 2006, would eliminate the grandfather clause. The 
     bill also would state that the term ``Internet access'' or 
     ``Internet access services'' as defined in ITFA would not 
     include telecommunications services except to the extent that 
     such services are used to provide Internet access (known as 
     ``aggregating'' or ``bundling'' of services). These 
     extensions and expansions of the moratorium constitute 
     intergovernmental mandates as defined in UMRA because they 
     would prohibit states from collecting taxes that they 
     otherwise could collect.

   Estimated Direct Costs of Mandates to State and Local Governments

       CBO estimates that repealing the grandfather clause would 
     result in revenue losses for as many as 10 states for several 
     local governments totaling between $80 million and $120 
     million annually, beginning in 2007. We also estimate that 
     the change in the definition of Internet access could affect 
     tax revenues for many states and local governments, but we 
     cannot estimate the magnitude or the timing of any such 
     additional impacts at this time.
       UMRA includes in its definition of the direct costs of a 
     mandate the amounts that state and local governments would be 
     prohibited from raising in revenues to comply with the 
     mandate. The direct costs of eliminating the grandfather 
     clause would be the tax revenues that state and local 
     governments are currently collecting but would be precluded 
     from collecting under S. 150. States also could lose revenues 
     that they currently collect on certain services, if those 
     services are redefined as Internet access under the bill.
       Over the next five years there will likely be changes in 
     the technology and the market for Internet access. Such 
     changes are likely to affect, at minimum, the price for 
     access to the Internet as well as the demand for and the 
     methods of such access. How these technological and market 
     changes will ultimately affect state and local tax revenues 
     is unclear, but for the purposes of this estimate, CBO 
     assumes that over the next five years, these effects will 
     largely offset each other, keeping revenues from taxes on 
     Internet access within the current range.

[[Page S13034]]

                         the grandfather clause

       The primary budget impact of this bill would be the revenue 
     losses--starting in October 2006--resulting from eliminating 
     the grandfather clause that currently allows some state and 
     local governments to collect taxes on Internet access. While 
     there is some uncertainty about the number of jurisdictions 
     currently collecting such taxes--and the precise amount of 
     those collections--CBO believes that as many as 10 states 
     (Hawaii, New Hampshire, New Mexico, North Dakota, Ohio, South 
     Dakota, Tennessee, Texas, Washington, Wisconsin) and several 
     local jurisdictions in Colorado, Ohio, South Dakota, Texas, 
     Washington, and Wisconsin are currently collecting such taxes 
     and that these taxes total between $80 million and $120 
     million annually. The estimate is based on information from 
     the states involved, from industry sources, and from the 
     Department of Commerce. In arriving at this estimate, CBO 
     took into account the fact that some companies are 
     challenging the applicability of the tax to the service they 
     provide and thus may not be collecting or remitting the taxes 
     even though the states feel they are obligated to do so. So 
     potential liabilities are not included in the estimate.
       It is possible that if the moratorium were allowed to 
     expire as scheduled under current law, some state and local 
     governments would enact new taxes or decide to apply existing 
     taxes to Internet access during the next five years. It is 
     also possible that some governments would repeal existing 
     taxes or preclude their application to these services. 
     Because such changes are difficult to predict, for the 
     purposes of estimating the direct costs of the mandate, CBO 
     considered only the revenues from taxes that are currently in 
     place and actually being collected.


                     definition of internet access

       Depending on how the language altering the definition of 
     what telecommunications services are taxable is interpreted, 
     that language also could result in substantial revenue losses 
     for states and local governments. It is possible that states 
     could lose revenue if services that are currently taxes are 
     redefined as Internet ``access'' under the definition in S. 
     150. Revenues could also be lost if Internet access providers 
     choose to bundle products and call the product Internet 
     access. Such changes would reduce state and local revenues 
     from telecommunications taxes and possibly revenues from 
     content currently subject to sales and use taxes. However, 
     CBO cannot estimate the magnitude of these losses.

                 Estimated Impact on the Private Sector

       This bill would impose no new private-sector mandates as 
     defined in UMRA.

                         Previous CBO Estimate

       On July 21, 2003, CBO transmitted a cost estimate for H.R. 
     49, the Internet Tax Nondiscrimination Act, as ordered 
     reported by the House Committee on the Judiciary on July 16, 
     2003. Unlike H.R. 49, which would eliminate the grandfather 
     clause upon passage, S. 150 would allow the grandfather 
     clause to remain in effect until October 2006. Thus, while 
     both bills contain an intergovernmental mandate with costs 
     above the threshold, the enactment of S. 150 would not result 
     in revenue losses to states until October 2006.

                         Estimate Prepared by:

     Impact on State, Local, and Tribal Governments: Sarah Puro
     Federal Costs: Melissa Zimmerman
     Impact on the Private Sector: Paige Piper/Bach

                         Estimate Approved By:

     Peter H. Fontaine
     Deputy Assistant Director for Budget Analysis

     SEC. 424. [2 U.S.C. 658C] DUTIES OF THE DIRECTOR; STATEMENTS 
                   ON BILLS AND JOINT RESOLUTIONS OTHER THAN 
                   APPROPRIATIONS BILLS AND JOINT RESOLUTIONS.

       (a) Federal Intergovernmental Mandates in Reported Bills 
     and Resolutions.--For each bill or joint resolution of a 
     public character reported by any committee of authorization 
     of the Senate or the House of Representatives, the Director 
     of the Congressional Budget Office shall prepare and submit 
     to the committee a statement as follows:
       (1) Contents.--If the Director estimates that the direct 
     cost of all Federal intergovernmental mandates in the bill or 
     joint resolution will equal or exceed $50,000,000 (adjusted 
     annually for inflation) in the fiscal year in which any 
     Federal intergovernmental mandate in the bill or joint 
     resolution (or in any necessary implementing regulation) 
     would first be effective or in any of the 4 fiscal years 
     following such fiscal year, the Director shall so state, 
     specify the estimate, and briefly explain the basis of the 
     estimate.
       (2) Estimates.--Estimates required under paragraph (1) 
     shall include estimates (and brief explanations of the basis 
     of the estimates) of--
       (A) the total amount of direct cost of complying with the 
     Federal intergovernmental mandates in the bill or joint 
     resolution;
       (B) if the bill or resolution contains an authorization of 
     appropriations under section 425(a)(2)(B), the amount of new 
     budget authority for each fiscal year for a period not to 
     exceed 10 years beyond the effective date necessary for the 
     direct cost of the intergovernmental mandate; and
       (C) the amount, if any, of increase in authorization of 
     appropriations under existing Federal financial assistance 
     programs, or of authorization of appropriations for new 
     Federal financial assistance, provided by the bill or joint 
     resolution and usable by State, local or tribal governments 
     for activities subject of the Federal intergovernmental 
     mandates.
       (3) Additional flexibility information.--The Director shall 
     include in the statement submitted under this subsection, in 
     the case of legislation that makes changes as described in 
     section 421(5)(B)(i)(II)--
       (A) if no additional flexibility is provided in the 
     legislation, a description of whether and how the States can 
     offset the reduction under existing law; or
       (B) if additional flexibility is provided in the 
     legislation, whether the resulting savings would offset the 
     reductions in that program assuming the States fully 
     implement that additional flexibility.
       (4) Estimate not feasible.--If the Director determines that 
     it is not feasible to make a reasonable estimate that would 
     be required under paragraphs (1) and (2), the Director shall 
     not make the estimate, but shall report in the statement that 
     the reasonable estimate cannot be made and shall include 
     the reasons for that determination in the statement. If 
     such determination is made by the Director, a point of 
     order under this part shall lie only under section 
     425(a)(1) and as if the requirement of section 425(a)(1) 
     had not been met.
       (b) Federal Private Sector Mandates in Reported Bills and 
     Joint Resolutions.--For each bill or joint resolution of a 
     public character reported by any committee of authorization 
     of the Senate or the House of Representatives, the Director 
     of the Congressional Budget Office shall prepare and submit 
     to the committee a statement as follows:
       (1) Contents.--If the Director estimates that the direct 
     cost of all Federal private sector mandates in the bill or 
     joint resolution will equal or exceed $100,000,000 (adjusted 
     annually for inflation) in the fiscal year in which any 
     Federal private sector mandate in the bill or joint 
     resolution (or in any necessary implementing regulation) 
     would first be effective or in any of the 4 fiscal years 
     following such fiscal year, the Director shall so state, 
     specify the estimate, and briefly explain the basis of the 
     estimate.
       (2) Estimates.--Estimates required under paragraph (1) 
     shall include estimates (and a brief explanation of the basis 
     of the estimates) of--
       (A) the total amount of direct costs of complying with the 
     Federal private sector mandates in the bill or joint 
     resolution; and
       (B) the amount, if any, of increase in authorization of 
     appropriations under existing Federal financial assistance 
     programs, or of authorization of appropriations for new 
     Federal financial assistance, provided by the bill or joint 
     resolution usable by the private sector for the activities 
     subject to the Federal private sector mandates.
       (3) Estimate not feasible.--If the Director determines that 
     it is not feasible to make a reasonable estimate that would 
     be required under paragraphs (1) and (2), the Director shall 
     not make the estimate, but shall report in the statement that 
     the reasonable estimate cannot be made and shall include the 
     reasons for that determination in the statement.
       (c) Legislation Falling Below the Direct Costs 
     Thresholds.--If the Director estimates that the direct costs 
     of a Federal mandate will not equal or exceed the thresholds 
     specified in subsections (a) and (b), the Director shall so 
     state and shall briefly explain the basis of the estimate.
       (d) Amended Bills and Joint Resolutions; Conference 
     Reports.--If a bill or joint resolution is passed in an 
     amended form (including if passed by one House as an 
     amendment in the nature of a substitute for the text of a 
     bill or joint resolution from the other House) or is reported 
     by a committee of conference in amended form, and the amended 
     form contains a Federal mandate not previously considered by 
     either House or which contains an increase in the direct cost 
     of a previously considered Federal mandate, then the 
     committee of conference shall ensure, to the greatest extent 
     practicable, that the Director shall prepare a statement as 
     provided in this subsection or a supplemental statement for 
     the bill or joint resolution in that amended form.

     SEC. 425. [2 U.S.C. 658D] LEGISLATION SUBJECT TO POINT OF 
                   ORDER

       (a) In General.--It shall not be in order in the Senate or 
     the House of Representatives to consider--
       (1) any bill or joint resolution that is reported by a 
     committee unless the committee has published a statement of 
     the Director on the direct costs of Federal mandates in 
     accordance with section 423(f) before such consideration, 
     except this paragraph shall not apply to any supplemental 
     statement prepared by the Director under section 424(d); and
       (2) any bill, joint resolution, amendment, motion, or 
     conference report that would increase the direct costs of 
     Federal intergovernmental mandates by an amount that causes 
     the thresholds specified in section 424(a)(1) to be exceeded, 
     unless--
       (A) the bill, joint resolution, amendment, motion, or 
     conference report provides new budget authority or new 
     entitlement authority in the House of Representatives or 
     direct spending authority in the Senate for each fiscal year 
     for such mandates included in the bill, joint resolution, 
     amendment, motion, or conference report in an amount equal to 
     or exceeding the direct costs of such mandate; or

[[Page S13035]]

       (B) the bill, joint resolution, amendment, motion, or 
     conference report includes an authorization for 
     appropriations in an amount equal to or exceeding the direct 
     cost of such mandate, and--
       (i) identifies a specific dollar amount of the direct costs 
     of such mandate for each year up to 10 years during which 
     such mandate shall be in effect under the bill, joint 
     resolution, amendment, motion or conference report, and such 
     estimate is consistent with the estimate determined under 
     subsection (e) for each fiscal year;
       (ii) identifies any appropriations bill that is expected to 
     provide for Federal funding of the direct cost referred to 
     under clause (i); and
       (iii)(I) provides that for any fiscal year the responsible 
     Federal agency shall determine whether there are insufficient 
     appropriation for that fiscal year to provide for the direct 
     costs under clause (i) of such mandate, and shall (no later 
     than 30 days after the beginning of the fiscal year) notify 
     the appropriate authorizing committees of Congress of the 
     determination and submit either--
       (aa) a statement that the agency has determined, based on a 
     re-estimate of the direct costs of such mandate, after 
     consultation with State, local, and tribal governments, that 
     the amount appropriated is sufficient to pay for the direct 
     costs of such mandate; or
       (bb) legislative recommendations for either implementing a 
     less costly mandate or making such mandate ineffective for 
     the fiscal year;
       (II) provides for expedited procedures for the 
     consideration of the statement or legislative recommendations 
     referred to in subclause (I) by Congress no later than 30 
     days after the statement or recommendations are submitted to 
     Congress; and
       (III) provides that such mandate shall--
       (aa) in the case of a statement referred to in subclause 
     (I)(aa), cease to be effective 60 days after the statement is 
     submitted unless Congress has approved the agency's 
     determination by joint resolution during the 60-day period;
       (bb) cease to be effective 60 days after the date the 
     legislative recommendations of the responsible Federal agency 
     are submitted to Congress under subclause (I)(bb) unless 
     Congress provides otherwise by law; or
       (cc) in the case that such mandate that has not yet taken 
     effect, continue not to be effective unless Congress provides 
     otherwise by law.
       (b) Rule of Construction.--The provisions of subsection 
     (a)(2)(B)(iii) shall not be construed to prohibit or 
     otherwise restrict a State, local, or tribal government from 
     voluntarily electing to remain subject to the original 
     Federal intergovernmental mandate, complying with the 
     programmatic or financial responsibilities of the original 
     Federal intergovernmental mandate and providing the funding 
     necessary consistent with the costs of Federal agency 
     assistance, monitoring, and enforcement.
       (c) Committee on Appropriations.--
       (1) Application.--The provisions of subsection (a)--
       (A) shall not apply to any bill or resolution reported by 
     the Committee on Appropriations of the Senate or the House of 
     Representatives; except
       (B) shall apply to--
       (i) any legislative provision increasing direct costs of a 
     Federal intergovernmental mandate contained in any bill or 
     resolution reported by the Committee on Appropriations of the 
     Senate or House of Representatives;
       (ii) any legislative provision increasing direct costs of a 
     Federal intergovernmental mandate contained in any amendment 
     offered to a bill or resolution reported by the Committee on 
     Appropriations of the Senate or House of Representatives;
       (iii) any legislative provision increasing direct costs of 
     a Federal intergovernmental mandate in a conference report 
     accompanying a bill or resolution reported by the Committee 
     on Appropriations of the Senate or House of Representatives; 
     and
       * * *
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Before the Senator from Tennessee leaves the floor, I say 
to him I have my hands full today with spam so I am not going to get 
into the substance of the Internet Tax Freedom Act that, as my friend 
knows, I have been a sponsor of in the Senate with Congressman Cox in 
the other body. I am always anxious to work with my colleague from 
Tennessee.
  Essentially, the arguments being made today against the Internet Tax 
Freedom Act are identical to the ones that were made 5 years ago. If we 
were to look at the transcript 5 years ago before the Senate Commerce 
Committee, we were told the States and localities would be stripped of 
the revenue they needed. We were pretty much told western civilization 
was going to end at that time.
  Ever since then, as we have gone through 5 years of experience, we 
have not seen that to be the case. States and localities have not been 
stripped of the revenue they need. Internet sales are still perhaps 
only 2 percent of the economy. No jurisdiction has shown that they have 
been hurt by their inability to discriminate against the Internet, and 
that is all this law stands for is technological neutrality, treating 
the online world like the offline world is treated.
  As I said to my good friend, I have my hands full today with spam so 
we will debate the Internet Tax Freedom Act another day. I am anxious 
to work with my colleague. I would only point out the reauthorization 
of the Internet Tax Freedom Act passed the Commerce Committee 
unanimously. It is the first time since we have been at this that it 
has been passed unanimously. I think it is going to be an important 
debate I will certainly be anxious to talk with my colleague about at 
that time.
  Again, we are hoping those with the amendments that have been made in 
order to the spam bill will come to the floor. We could finish this 
legislation in perhaps half an hour, pass a very important proconsumer 
measure by pretty close to a unanimous vote in the Senate. Senator 
Burns and I are certainly hoping that will be the case and hope in 
particular that Senator Corzine, Senator Enzi, and Senator Santorum 
will come to the floor and we could be done very quickly.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. McCAIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Ms. Collins). Without objection, it is so 
ordered.


                           Amendment No. 1894

  Mr. McCAIN. Madam President, I send an amendment to the desk on 
behalf of Senators Santorum and Enzi, and I ask for its immediate 
consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Arizona [Mr. McCain], for Mr. Enzi and Mr. 
     Santorum, proposes an amendment numbered 1894.

  Mr. McCAIN. Madam President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

 (Purpose: To require warning labels on sexually explicit commercial e-
                                 mail)

       On page 51, after line 22, insert the following:
       (d) Requirement To Place Warning Labels on Commercial 
     Electronic Mail Containing Sexually Oriented Material.--
       (1) In general.--No person may initiate in or affecting 
     interstate commerce the transmission, to a protected 
     computer, of any unsolicited commercial electronic mail 
     message that includes sexually oriented material and--
       (A) fail to include in subject heading for the electronic 
     mail message the marks or notices prescribed by the 
     Commission under this subsection; or
       (B) fail to provide that the matter in the message that is 
     initially viewable to the recipient, when the message is 
     opened by any recipient and absent any further actions by the 
     recipient, includes only--
       (i) to the extent required or authorized pursuant to 
     paragraph (2), any such marks or notices;
       (ii) the information required to be included in the message 
     pursuant to subsection (a)(5); and
       (iii) instructions on how to access, or a mechanism to 
     access, the sexually oriented material.
       (2) Prescription of marks and notices.--Not later than 120 
     days after the date of the enactment of this Act, the 
     Commission in consultation with the Attorney General shall 
     prescribe clearly identifiable marks or notices to be 
     included in or associated with unsolicited commercial 
     electronic mail that contains sexually oriented material, in 
     order to inform the recipient of that fact and to facilitate 
     filtering of such electronic mail. The Commission shall 
     publish in the Federal Register and provide notice to the 
     public of the marks or notices prescribed under this 
     paragraph.
       (3) Definition.--In this subsection, the term ``sexually 
     oriented material'' means any material that depicts sexually 
     explicit conduct (as that term is defined in section 2256 of 
     title 18, United States Code), unless the depiction 
     constitutes a small and insignificant part of the whole, the 
     remainder of which is not primarily devoted to sexual 
     matters.
       (4) Penalty.--A violation of paragraph (1) is punishable as 
     if it were a violation of section 1037(a) of title 18, United 
     States Code.

  Mr. ENZI. Madam President, today I introduce an amendment to the CAN-
SPAM Act. As some of my colleagues have already expressed, unsolicited 
commercial e-mail, also known as

[[Page S13036]]

spam, aggravates many computer users. Not only can it be a nuisance, 
but its cost may be passed on to consumers in the form of wasted time, 
energy and money spent to handle and filter out unwanted spam e-mails. 
Also, e-mail service providers incur substantial costs when they are 
forced to upgrade their equipment to process the millions of spam e-
mails that they receive every day. Spam e-mail is a time and money 
vacuum. I support the CAN-SPAM Act because it empowers us to stop these 
unwanted and unwelcome e-mails.
  A recent study conducted by the Federal Trade Commission found that 
66 percent of spam contains false or misleading claims. Another 18 
percent contains pornographic or adult content. My amendment mandates 
stronger restrictions that would prevent the increasing amount of spam 
e-mail containing explicit content from reaching unintended recipients. 
There is clearly a need to address this in the CAN-SPAM Act because it 
is potentially the most offensive type of spam on the Internet today. 
There are sorely misguided individuals--spamers--whose sole mission is 
to e-mail as many people as possible, regardless of age, indecent 
material. Internet users, especially minors, should not be 
involuntarily exposed to explicit content by simply checking their e-
mail inbox. My amendment would protect these people in two ways:
  First, it would place a notice, approved by the FTC, in the subject 
header of spam e-mail that contains explicit content. Usually, a 
subject header is a title line noting the content of the message that 
has arrived in your inbox. However, in a virtual world already 
saturated with millions of pieces of spam e-mail, spammers often title 
e-mails with catchy phrases and whatever they think will get the most 
people to open the message and read their advertisements. Now spam e-
mail with explicit and offensive material is often camouflaged by an 
inviting and completely misleading subject heading. This is a common 
way that many e-mail users end up being involuntarily exposed to 
offensive sexual content. Adding a notice in the subject heading would 
immediately alert the computer user that the message contained within 
has explicit and possibly offensive content and should not be viewed by 
minors. This notice would alert the e-mail recipient and allow him or 
her to organize and filter their mail for any unwanted material.
  Second, my amendment would require that all spam e-mail with explicit 
content add an opening page to all copies of their e-mail being sent to 
unknown recipients. This opening page would not contain any explicit 
images or text, but instead have a link that would link users to that 
content if they wished. This valuable provision would protect minors 
and other e-mail users by requiring that the recipient purposefully act 
and ``click'' in order to get to the explicit images or text. Adding 
this firewall allows users to opt out of spam e-mail lists and delete 
offensive e-mails from their inbox without ever being exposed to their 
content.
  As a Senator from the rural State of Wyoming, I fully appreciate the 
value that the Internet holds for electronic communication and business 
across long distances. This amendment would allow both communication 
and business to continue and prosper. However, it also takes an 
important step in protecting Internet and e-mails users, especially 
minors, from receiving sexually explicit, offensive and unwanted 
content in their e-mails. Most people check their inboxes without an 
idea of what might have landed there or who might have sent it. This 
amendment makes that process more transparent and gives control back to 
the Internet user who doesn't want to be exposed to indecent, offensive 
or explicit content.
  Mr. McCAIN. Madam President, this amendment by Senators Santorum and 
Enzi requires warning labels on sexually explicit commercial e-mail to 
regulate interstate commerce by imposing limitations and penalties on 
the transmission of unsolicited commercial electronic mail via the 
Internet.
  Basically, this amendment says no person may initiate or affect 
interstate commerce the transmission, to a protected computer, of any 
unsolicited commercial electronic mail message that includes sexually 
oriented material and fail to include in the subject heading for the 
electronic mail message the marks or notices prescribed by the 
Commission, or fail to provide that the matter in the message that is 
initially viewable to the recipient, when the message is opened by any 
recipient, and absent any further actions by the recipient, includes 
only to the extent required or authorized pursuant to any such marks or 
notices; the information required to be included in the message is 
clear.
  This amendment also prescribes that not later than 120 days after the 
date of the enactment of this act, the Commission, the Federal Trade 
Commission, in consultation with the Attorney General, shall prescribe 
clearly identifiable marks or notices to be included in or associated 
with unsolicited commercial electronic mail that contains sexually 
oriented material, in order to inform the recipient of this message, of 
the material, of that fact to facilitate filtering of such electronic 
mail.
  As all of us have discussed in consideration of this bill, one of the 
great concerns all of us have is pornographic material that is 
transmitted in the form of spam. According to several experts, 20 
percent of unsolicited spam is pornography. This is an effort on the 
part of Senators Enzi and Santorum to try to at least begin addressing 
this issue. It is a valuable and important contribution in the form of 
trying to identify it and to bring it under control. It would make it a 
crime to send unsolicited e-mail that contains sexually oriented 
material unless they labeled it as prescribed by the FTC. The criminal 
penalties for this section would be the same as those contained in the 
Hatch-Leahy amendment.
  I strongly support the amendment and urge its adoption.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Madam President, let me associate myself with the remarks 
of the distinguished chairman of the committee. Every Member 
understands that pornography being transmitted through spam is a 
scourge. There is no question about it. What we have done, because we 
have just seen this, is we have asked the minority on the Judiciary 
Committee, under the leadership of Senator Leahy, to take a look at 
this. We are very hopeful that we will be able to approve this language 
in just a few minutes. Again, we are hoping that this bill will be 
passed, certainly within 20, 25 minutes, and we will have a comment 
from the Democrats on the Judiciary Committee very shortly.
  I share Chairman McCain's view that this is an extremely important 
issue. When you think about spam, the first thing parents all over this 
country think about is the flood that is being targeted at families 
from coast to coast. I am hopeful we will get this approved in a matter 
of minutes.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCAIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Madam President, for the benefit of my colleagues, we 
have a Landrieu amendment which the Senator from Louisiana has been 
kind enough to withdraw, but we need to discuss what we need to do in 
the form of sending a letter to the Federal Trade Commission 
instructing them to take certain actions which I will discuss in a 
minute; a Corzine amendment which has two parts to it, which both sides 
have agreed to; and then I don't believe there will be any further 
amendments, although that is not completely clear. We could expect a 
vote on final passage relatively soon.
  Senator Landrieu was going to offer an amendment that would have 
required the Consumer Product Safety Commission to undertake a 
rulemaking to have manufacturers create a database for consumers to be 
notified of certain product recalls. I have committed to Senator 
Landrieu to work with the CPSC to solicit these views on her 
legislation and ask how best to accomplish her worthy goals of better 
informing consumers about product recalls.
  Senator Landrieu has hit on a very important issue. Unless you happen 
to see it by accident mentioned on television, the recalls are very 
seldom

[[Page S13037]]

known by at least a majority of those who would be affected by it. I 
commit to Senator Landrieu to see how we can best accomplish that. I 
appreciate her forbearance at this time in withdrawing the amendment. I 
hope we can satisfy her concerns by asking for rapid action on the part 
of the Consumer Product Safety Commission.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Madam President, on behalf of the minority, Senator 
Hollings believes that Senator Landrieu is raising a very important 
issue for consumers and kids. We do want to work closely with her and 
move ahead on her initiative. It is an important one for families.
  Mr. McCAIN. Madam President, as we are nearing the end, I am waiting 
for the Corzine amendment that we will discuss and adopt. Then I 
believe we will be able to move to final passage. I am not positive, 
but I think we will be able to. I would like to again express my 
appreciation to the Senator from Montana, Mr. Burns, and Senator Wyden. 
Four years is a long time to work on a single issue. When these two 
Senators began work on this issue, spam was minuscule as compared to 
what it is today. I must admit, I didn't pay much attention to it then, 
nor did the members of the Commerce Committee, nor the oversight 
agencies. Both Senators had the foresight to see the incredible 
proportions that this spamming would reach and the effect that it would 
have not only on our ability to use e-commerce and e-communications but 
also on our ability to improve productivity.
  The costs involved in the spamming issue are pretty incredible when 
you count it all up according to certain experts.
  So I thank our staffs who have worked on this for so long. Without 
the leadership of the Senator from Montana, Mr. Burns, and that of 
Senator Wyden, we would not have been able to move this, after several 
hearings in the Commerce Committee, to the floor of the Senate. I have 
some confidence that our friends on the other side of the Capitol will 
act with some dispatch since they are as wary as we are of the gravity 
of this problem. As soon as we get the Corzine amendment, we will move 
forward.
  The PRESIDING OFFICER. The Senator from Montana is recognized.
  Mr. BURNS. Madam President, I associate myself with the words of the 
chairman of the committee. Four years ago we started on this, and it 
has blossomed. I think it was pretty obvious to a lot of us what the 
impact of the Internet would be on our everyday communications and the 
technologies and services and information it provides. But also 
starting then was this unwanted mail that would show up in your 
mailbox. It didn't mean much at first, but it was obvious to a lot of 
us, who have been working on this legislation for 4 years, that this 
was something that was going to be picked up by a lot of people--the 
good, the bad, and the ugly, so to speak.
  So we went to work on it then and we have been working on it ever 
since. We thought we had a chance last year to pass it. I would say we 
had not really done all of our homework, and we didn't get it passed.
  I appreciate the leadership of both the chairman and ranking member 
of the Commerce Committee and also my good friend from Oregon. We have 
worked hard on this legislation.
  I really believe, with the debate going on in the House now, that the 
time has come. I don't go to a townhall meeting or meet a friend who 
doesn't say: Take care of that spam. I tell my friends also that this 
will not do it totally. The industry is going to have to come together 
using new technologies in order to get it done, and I think the 
industry will now because they know we are serious about criminal 
charges, fines, the result of violations of this law.
  So I think we send a very strong message to those people who would 
use the Internet to do what is not acceptable to the American public.
  I thank my friends and I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon is recognized.
  Mr. WYDEN. Madam President, I think we are about ready to actually 
move to final passage. We have the Corzine amendment and another one 
coming from the Senator from Iowa. I think we are very close to being 
able to move ahead.
  I wish to express my thanks to the leadership of the committee and my 
partner for over 4 years, Senator Burns, on this legislation.
  The bottom line here is that when this bill becomes law, big-time 
spamming, in effect, becomes an outlaw business. For the first time, 
the kingpin spammers are going to be at risk of Federal prosecution, 
Federal Trade Commission enforcement, million-dollar lawsuits by State 
attorneys general and Internet service providers. The reason that is 
the case is that big-time spammers would have to violate this bill in 
order for their sleazy operations to continue. If they don't hide their 
identity, their messages will get filtered out. If they don't use 
misleading subject lines, people are going to go click and these 
garbage messages will go straight into the trash unread.
  It seems to me there is a chance now, recognizing that we still need 
international cooperation and tough enforcement, to make a very 
significant step forward for consumers all across the country.
  I will conclude by way of saying that, again, I think enforcement is 
going to be the key to making this legislation work. When this bill is 
signed into law, I have been saying that the enforcers--the Justice 
Department, State attorneys general, Internet service providers, and 
others--have to be prepared to come down on those 200 or 300 big-time 
spammers with hobnail boots. A lot of them are not exactly quaking 
tonight at the prospect of Senate action. They are not convinced that 
the Senate is really going to insist on strong oversight. We saw today, 
because of what was said by Senator Hatch and Senator Leahy, that they 
are committed to strong enforcement and vigorous oversight.
  I believe as a result of the attention the Senate has given to this 
issue, when this bill is signed into law, we are going to see very 
quickly a handful of very tough, significant enforcement actions with 
real penalties and the prospect of spammers going to jail and paying 
million-dollar fines. That is the kind of deterrence we need.
  The text of this law is very important, but it is only as good a law 
as we see backed up by enforcement. We have a commitment today from 
Chairman Hatch and Senator Leahy to follow up and ensure that that kind 
of enforcement takes place. With that, I think we take a very 
significant step forward in terms of protecting the rights of consumers 
who right now find a blizzard of spam every single time they turn on 
their computer.
  I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCAIN. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Madam President, I ask unanimous consent that we lay 
aside the pending amendment so Senator Harkin may be recognized.


                           Amendment No. 1895

  Mr. HARKIN. Madam President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Iowa [Mr. Harkin], for himself, and Mr. 
     Grassley, proposes an amendment numbered 1895.

  Mr. HARKIN. Madam President, I ask unanimous consent that further 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(To provide competitive grants for training court reporters and closed 
    captioners to meet requirements for realtime writers under the 
        Telecommunications Act of 1996, and for other purposes)

       At the appropriate place add the following:

     SECTION 1. SHORT TITLE.

       This title may be cited as the ``Training for Realtime 
     Writers Act of 2003''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) As directed by Congress in section 723 of the 
     Communications Act of 1934 (47 U.S.C.

[[Page S13038]]

     613), as added by section 305 of the Telecommunications Act 
     of 1996 (Public Law 104-104; 110 Stat. 126), the Federal 
     Communications Commission adopted rules requiring closed 
     captioning of most television programming, which gradually 
     require new video programming to be fully captioned beginning 
     in 2006.
       (2) More than 28,000,000 Americans, or 8 percent of the 
     population, are considered deaf or hard of hearing, and many 
     require captioning services to participate in mainstream 
     activities.
       (3) More than 24,000 children are born in the United States 
     each year with some form of hearing loss.
       (4) According to the Department of Health and Human 
     Services and a study done by the National Council on Aging--
       (A) 25 percent of Americans over 65 years old are hearing 
     impaired;
       (B) 33 percent of Americans over 70 years old are hearing 
     impaired; and
       (C) 41 percent of Americans over 75 years old are hearing 
     impaired.
       (5) The National Council on Aging study also found that 
     depression in older adults may be directly related to hearing 
     loss and disconnection with the spoken word.
       (6) Empirical research demonstrates that captions improve 
     the performance of individuals learning to read English and, 
     according to numerous Federal agency statistics, could 
     benefit--
       (A) 3,700,000 remedial readers;
       (B) 12,000,000 young children learning to read;
       (C) 27,000,000 illiterate adults; and
       (D) 30,000,000 people for whom English is a second 
     language.
       (7) Over the past 5 years, student enrollment in programs 
     that train court reporters to become realtime writers has 
     decreased significantly, causing such programs to close on 
     many campuses.

     SEC. 3. AUTHORIZATION OF GRANT PROGRAM TO PROMOTE TRAINING 
                   AND JOB PLACEMENT OF REALTIME WRITERS.

       (a) In General.--The National Telecommunications and 
     Information Administration shall make competitive grants to 
     eligible entities under subsection (b) to promote training 
     and placement of individuals, including individuals who have 
     completed a court reporting training program, as realtime 
     writers in order to meet the requirements for closed 
     captioning of video programming set forth in section 723 of 
     the Communications Act of 1934 (47 U.S.C. 613) and the rules 
     prescribed thereunder.
       (b) Eligible Entities.--For purposes of this Act, an 
     eligible entity is a court reporting program that--
       (1) can document and demonstrate to the Secretary of 
     Commerce that it meets minimum standards of educational and 
     financial accountability, with a curriculum capable of 
     training realtime writers qualified to provide captioning 
     services;
       (2) is accredited by an accrediting agency recognized by 
     the Department of Education; and
       (3) is participating in student aid programs under title IV 
     of the Higher Education Act of 1965.
       (c) Priority in Grants.--In determining whether to make 
     grants under this section, the Secretary of Commerce shall 
     give a priority to eligible entities that, as determined by 
     the Secretary of Commerce--
       (1) possess the most substantial capability to increase 
     their capacity to train realtime writers;
       (2) demonstrate the most promising collaboration with local 
     educational institutions, businesses, labor organizations, or 
     other community groups having the potential to train or 
     provide job placement assistance to realtime writers; or
       (3) propose the most promising and innovative approaches 
     for initiating or expanding training and job placement 
     assistance efforts with respect to realtime writers.
       (d) Duration of Grant.--A grant under this section shall be 
     for a period of two years.
       (e) Maximum Amount of Grant.--The amount of a grant 
     provided under subsection (a) to an entity eligible may not 
     exceed $1,500,000 for the two-year period of the grant under 
     subsection (d).

     SEC. 4. APPLICATION.

       (a) In General.--To receive a grant under section 3, an 
     eligible entity shall submit an application to the National 
     Telecommunications and Information Administration at such 
     time and in such manner as the Administration may require. 
     The application shall contain the information set forth under 
     subsection (b).
       (b) Information.--Information in the application of an 
     eligible entity under subsection (a) for a grant under 
     section 3 shall include the following:
       (1) A description of the training and assistance to be 
     funded using the grant amount, including how such training 
     and assistance will increase the number of realtime writers.
       (2) A description of performance measures to be utilized to 
     evaluate the progress of individuals receiving such training 
     and assistance in matters relating to enrollment, completion 
     of training, and job placement and retention.
       (3) A description of the manner in which the eligible 
     entity will ensure that recipients of scholarships, if any, 
     funded by the grant will be employed and retained as realtime 
     writers.
       (4) A description of the manner in which the eligible 
     entity intends to continue providing the training and 
     assistance to be funded by the grant after the end of the 
     grant period, including any partnerships or arrangements 
     established for that purpose.
       (5) A description of how the eligible entity will work with 
     local workforce investment boards to ensure that training and 
     assistance to be funded with the grant will further local 
     workforce goals, including the creation of educational 
     opportunities for individuals who are from economically 
     disadvantaged backgrounds or are displaced workers.
       (6) Additional information, if any, of the eligibility of 
     the eligible entity for priority in the making of grants 
     under section 3(c).
       (7) Such other information as the Administration may 
     require.

     SEC. 5. USE OF FUNDS.

       (a) In General.--An eligible entity receiving a grant under 
     section 3 shall use the grant amount for purposes relating to 
     the recruitment, training and assistance, and job placement 
     of individuals, including individuals who have completed a 
     court reporting training program, as realtime writers, 
     including--
       (1) recruitment;
       (2) subject to subsection (b), the provision of 
     scholarships;
       (3) distance learning;
       (4) development of curriculum to more effectively train 
     realtime writing skills, and education in the knowledge 
     necessary for the delivery of high-quality closed captioning 
     services;
       (5) assistance in job placement for upcoming and recent 
     graduates with all types of captioning employers;
       (6) encouragement of individuals with disabilities to 
     pursue a career in realtime writing; and
       (7) the employment and payment of personnel for such 
     purposes.
       (b) Scholarships.--
       (1) Amount.--The amount of a scholarship under subsection 
     (a)(2) shall be based on the amount of need of the recipient 
     of the scholarship for financial assistance, as determined in 
     accordance with part F of title IV of the Higher Education 
     Act of 1965 (20 U.S.C. 1087kk).
       (2) Agreement.--Each recipient of a scholarship under 
     subsection (a)(2) shall enter into an agreement with the 
     National Telecommunications and Information Administration to 
     provide realtime writing services for a period of time (as 
     determined by the Administration) that is appropriate (as so 
     determined) for the amount of the scholarship received.
       (3) Coursework and employment.--The Administration shall 
     establish requirements for coursework and employment for 
     recipients of scholarships under subsection (a)(2), including 
     requirements for repayment of scholarship amounts in the 
     event of failure to meet such requirements for coursework and 
     employment. Requirements for repayment of scholarship amounts 
     shall take into account the effect of economic conditions on 
     the capacity of scholarship recipients to find work as 
     realtime writers.
       (c) Administrative Costs.--The recipient of a grant under 
     section 3 may not use more than 5 percent of the grant amount 
     to pay administrative costs associated with activities funded 
     by the grant.
       (d) Supplement Not Supplant.--Grants amounts under this Act 
     shall supplement and not supplement other Federal or non-
     Federal funds of the grant recipient for purposes of 
     promoting the training and placement of individuals as 
     realtime writers.

     SEC. 6. REPORTS.

       (a) Annual Reports.--Each eligible entity receiving a grant 
     under section 3 shall submit to the National 
     Telecommunications and Information Administration, at the end 
     of each year of the grant period, a report on the activities 
     of such entity with respect to the use of grant amounts 
     during such year.
       (b) Report Information.--
       (1) In general.--Each report of an entity for a year under 
     subsection (a) shall include a description of the use of 
     grant amounts by the entity during such year, including an 
     assessment by the entity of the effectiveness of activities 
     carried out using such funds in increasing the number of 
     realtime writers. The assessment shall utilize the 
     performance measures submitted by the entity in the 
     application for the grant under section 4(b).
       (2) Final report.--The final report of an entity on a grant 
     under subsection (a) shall include a description of the best 
     practices identified by the entity as a result of the grant 
     for increasing the number of individuals who are trained, 
     employed, and retained in employment as realtime writers.

     SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

       There is authorized to be appropriated to carry out this 
     Act, amounts as follows:
       (1) $20,000,000 for each of fiscal years 2004, 2005, and 
     2006.
       (2) Such sums as may be necessary for fiscal year 2007.

  Mr. HARKIN. Madam President, today I am offering an amendment, a bill 
I introduced earlier this year, S. 480, the Training for Realtime 
Writers Act of 2003, on behalf of myself and Senator Grassley. The 1996 
Telecom Act requires that all television broadcasts were to be 
captioned by 2006. This was a much-needed reform that has helped 
millions of deaf and hard-of-hearing Americans to be able to take full 
advantage of television programming. As of today, it is estimated that

[[Page S13039]]

3,000 captioners will be needed to fulfill this requirement, and that 
number continues to increase as more and more broadband stations come 
online. Unfortunately, the United States only has 300 captioners. If 
our country expects to have media fully captioned by 2006, something 
must be done.
  This is an issue that I feel very strongly about because my late 
brother Frank was deaf. I know personally that access to culture, news, 
and other media was important to him and to others in achieving a 
better quality of life. More than 28 million Americans, or 8 percent of 
the population, are considered deaf or hard of hearing and many require 
captioning services to participate in mainstream activities. In 1990, I 
authored legislation that required all television sets to be equipped 
with a computer chip to decode closed captioning. This bill completes 
the promise of that technology, affording deaf and hard of hearing 
Americans the same equality and access that captioning provides.
  Though we do not necessarily think about it, the morning of September 
11 was a perfect example of the need for captioners. Holli Miller of 
Ankeny, IA, was captioning for Fox News. She was supposed to do her 
three and a half hour shift ending at 8 a.m. but, as we all know, 
disaster struck. Despite the fact that she had already worked most of 
her shift and had two small children to care for, Holli Miller stayed 
right where she was and for nearly 5 more hours continued to caption. 
Without even the ability to take bathroom breaks, Holli Miller made 
sure that deaf and hard of hearing people got the same news the rest of 
us got on September 11. I want to personally say thank you to Holli 
Miller and all the many captioners and other people across the country 
that made sure all Americans were alert and informed on that tragic 
day.
  But let me emphasize that the deaf and hard of hearing population is 
only one of a number of groups that will benefit from this legislation. 
The audience for captioning also includes individuals seeking to 
acquire or improve literacy skills, including approximately 27 million 
functionally illiterate adults, 3 to 4 million immigrants learning 
English as a second language, and 18 million children learning to read 
in grades kindergarten through 3. In addition, I see people using 
closed captioning to stay informed everywhere--from the gym to the 
airport. Captioning helps people educate themselves and helps all of us 
stay informed and entertained when audio isn't the most appropriate 
medium.
  Madam President, although we have two years to go until the deadline 
given by the 1996 Telecom Act, our Nation is facing a serious shortage 
of captioners. Over the past five years, student enrollment in programs 
that train court reporters to become realtime writers has decreased 
significantly, causing such programs to close on many campuses. Yet, 
the need for these skills continues to rise. That is why I thank the 
chairman and ranking member for giving me this opportunity to present 
this vital amendment, and, hopefully, it can be accepted.
  To reiterate, in 1990 I authored a bill, that became legislation, 
that required that all television sets that have a size 13-inch screen 
or larger have incorporated into that set a chip that would 
automatically decode for closed captioning. That went into effect in 
1996, and all television sets now have a chip in them. If you have a 
remote, you can punch it and closed captions will come up.
  Then in 1996, Congress passed legislation that said that, by the year 
2006, we would have a policy that all television programming would be 
real-time captioned. Right now if you watch the Senate in debate, you 
will see real-time captioning coming across the screen. You see that on 
news programs and sports programs. So it is engaging.
  But we wanted real-time captioners so that deaf and hard-of-hearing 
people around the country could watch television in a real-time setting 
and have real-time captioning. So again, we said that by 2006 we wanted 
to have this done. Real-time captioning is a highly trained skill that 
people have to have, and it is estimated that it is going to take about 
3,000 captioners nationwide to do this.
  Madam President, right now there are only about 300 captioners 
nationally. We only have 2 years to go before the congressionally 
mandated deadline of meeting this requirement. So, earlier this year, I 
introduced a bill, S. 480, along with 40 cosponsors on both sides of 
the aisle, providing for competitive grants. These grants would go to 
authorize entities, accredited by their State education agencies, that 
could then use these grants to fund programs to get scholarships for 
recruitment, training, and job placement to get this pipeline filled as 
soon as possible with these real-time captioners over the next couple 
of years.
  That is the amendment I have sent to the desk. As I said, it has 
broad support. It is basically in the Commerce Committee jurisdiction. 
I know with the press of time, it wasn't acted on this year. I thought 
this might be an appropriate place to put it. I think it will be widely 
supported by everybody.
  I thank the ranking member and others for their positive reception of 
this amendment on this bill.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from Arizona.
  Mr. McCAIN. Mr. President, I ask unanimous consent that Senator Hatch 
be added as a cosponsor to the Enzi-Santorum amendment No. 1894, and I 
ask unanimous consent that I be added as a cosponsor of S. 877.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, I think the amendment of the Senator from 
Iowa is a worthy cause. We appreciate very much Senator Harkin's 
continued commitment to those who are hearing impaired in America. He 
has been a consistent and longtime advocate of this group of Americans. 
I thank him for his other contributions.
  I urge adoption of the amendment.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, on behalf of Senator Hollings, this is what 
we think Government ought to be about: going to bat for these people. I 
encourage the Senate to adopt the Harkin amendment.
  The PRESIDING OFFICER. Is there further debate on the amendment? If 
not, without objection, the amendment is agreed to.
  The amendment (No. 1895) was agreed to.
  Mr. HARKIN. Mr. President, I ask unanimous consent to print in the 
Record the cosponsors of the amendment.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               Cosponsors

       Senators Max Baucus [MT], Jeff Bingaman [NM], Jim Bunning 
     [KY], Saxby Chambliss [GA], Thad Cochran [MS], Michael D. 
     Crapo [ID], Christopher J. Dodd [CT], Russell D. Feingold 
     [WI], Charles E. Grassley [IA], Tim Johnson [SD], John F. 
     Kerry [MA], Mary L. Landrieu [LA], Patrick J. Leahy [VT], 
     Blanche Lincoln [AR], Richard G. Lugar [IN], Bill Nelson 
     [FL], Harry M. Reid [NV], Charles E. Schumer [NY], Gordon 
     Smith [OR], Debbie Stabenow [MI], Evan Bayh [IN], John B. 
     Breaux [LA], Conrad R. Burns [MT], Hillary Rodham Clinton 
     [NY], Larry E. Craig [ID], Michael DeWine [OH], John Edwards 
     [NC], Lindsey O. Graham [SC], James M. Jeffords [VT], Edward 
     M. Kennedy [MA], Herb Kohl [WI], Frank R. Lautenberg [NJ], 
     Joseph I. Lieberman [CT], Trent Lott [MS], Patty Murray [WA], 
     Mark Lunsford Pryor [AR], Rick Santorum [PA], Jeff Sessions 
     [AL], Olympia J. Snowe [ME], Ron Wyden [OR].

  Mr. REID. I move to reconsider the vote.
  Mr. McCAIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. McCAIN. Mr. President, Senator Santorum would like to speak about 
the Santorum-Enzi amendment, and then we will have the Corzine 
amendment, which I will propose, and then we will be ready, I believe, 
for final passage.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.


                           Amendment No. 1894

  Mr. SANTORUM. I thank the Chair. Mr. President, I say to the Senator 
from Arizona that I appreciate he and the ranking member accepting this 
amendment that Senator Enzi and I have proposed. As a father of six 
little children who spend some time--not a lot of time--but some time 
on the Internet, just viewing the amount of spam, the pornographic spam 
that comes into my 10-year-old's site, in

[[Page S13040]]

some cases, is just absolutely frightening.
  Senator Enzi and I had been working on separate tracks, and those 
tracks came together today in proposing an amendment which would 
provide a warning label on those kinds of materials that will be in the 
subject line of the e-mail so young people, as well as old, do not have 
to subject themselves to this rather disgusting attempt at advertising, 
if you want to call it that. This is an important piece of legislation.
  I ask the Senator from Arizona, if I can get his attention for a 
moment.
  Mr. WYDEN. Will the Senator yield?
  Mr. SANTORUM. I am happy to yield to the Senator from Oregon.
  Mr. WYDEN. Mr. President, very briefly, I think the Senator from 
Pennsylvania is trying to address a very important issue. We have asked 
for the Democrats on the Senate Judiciary Committee, under Senator 
Leahy's leadership, to take a look at it. I think we will have that 
answer quickly.
  As the Senator knows, some of the definitions in this area can get 
fairly technical. We also understand that pornography, which is 
conveyed through spam across the Internet, is a real public scourge. We 
are interested in getting the Senator's amendment adopted. I am hopeful 
we will be able to support it.

  Mr. SANTORUM. Mr. President, I say to both the Senator from Oregon 
and the Senator from Arizona, I hear their words of encouragement. I 
encourage them and would like their assurance that this amendment, as 
it is adopted, will be held in conference. This is an important issue 
that we need to deal with, and I hope they will fight to make sure this 
amendment--the House has a similar amendment, but I would argue it is 
not as strong as this one, and I hope they will fight for the stronger 
language of the Senate amendment in conference.
  Mr. McCAIN. Mr. President, I assure the Senator from Pennsylvania 
that we will do everything we can to hold it. I have to tell my friend 
from Pennsylvania that probably the greatest single aspect of this 
spamming that is so disturbing to families all over America is the 
issue the Senator from Pennsylvania raises, and that is this graphic 
pornography that pops into view when children are trying to do their 
homework, much less other entertaining aspects of using the computer.
  I want to work with the Senator from Pennsylvania in every way we can 
to see if we can enact whatever safeguards to prevent this pollution of 
young Americans' minds.
  Mr. SANTORUM. I thank the Senator from Arizona. My 10-year-old John 
takes cyberclasses on the Internet. I am appalled by the filth he has 
to go through every day, whether it is e-mails or pop-ups, in trying to 
get his work done.
  We have to do something about this. I am as much for free speech and 
free advertising as anybody else, but it reaches a point where it is 
intruding upon the American family and doing real damage to young 
people, and we have to take a stand.
  I appreciate the support of the Senator from Oregon and the Senator 
from Arizona. I speak on behalf of Senator Enzi; we appreciate their 
consideration and adoption of this amendment.
  Mr. McCAIN. Mr. President, as we await the completion of the Corzine 
amendment, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCAIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. I believe the pending amendment is the Santorum-Enzi 
amendment.
  The PRESIDING OFFICER. That is correct.
  Mr. McCAIN. Mr. President, we have discussed this amendment and we 
have now received clearance from both sides of the aisle and I urge its 
adoption.
  The PRESIDING OFFICER. Is there further debate on the amendment? If 
not, the question is on agreeing to amendment No. 1894.
  The amendment (No. 1894) was agreed to.
  Mr. McCAIN. I am told by the staff that we will commence this vote at 
6:30. I hope by that time we would have the final writing of the 
Corzine amendment, which I could propose at that time and have adopted 
since it is agreed to by both sides. We are waiting for that. Is that 
correct?
  Mr. LOTT. Mr. President, will the Senator yield?
  Mr. McCAIN. I am glad to yield.
  Mr. LOTT. Is the vote going to be at 6:30? Was the Senator asking 
consent that the final passage be at 6:30?
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, it is my understanding the only amendment in 
order that has not been resolved is the Corzine amendment. Is that 
correct?
  Mr. McCAIN. It has been resolved. We are just waiting for the 
language to be done. We may have to fire some staff people, I am 
afraid. Senator Wyden was writing them before.
  Mr. REID. So it is my understanding the vote on this matter would 
occur at 6:30, is that what is being requested?
  Mr. McCAIN. Let me put it this way: I ask unanimous consent that 
after the adoption of the Corzine amendment, the bill be read a third 
time and a final vote be taken at 6:30, with the understanding that if 
the Corzine amendment is not adopted that would not happen.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. McCAIN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. McCAIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1896

  Mr. McCAIN. On behalf of Senator Corzine, I have an amendment at the 
desk. I ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Arizona [Mr. McCain], for Mr. Corzine, for 
     himself, and Mr. Graham of South Carolina, proposes an 
     amendment numbered 1896.

  The amendment is as follows:

(Purpose: To direct the FTC to develop a system for rewarding those who 
   supply information about violations of this Act and a system for 
   requiring ADV labeling on unsolicited commercial electronic mail)

       At the appropriate place, insert the following:

     SEC. __. IMPROVING ENFORCEMENT BY PROVIDING REWARDS FOR 
                   INFORMATION ABOUT VIOLATIONS; LABELING.

       (a) In General.--The Commission shall transmit to the 
     Senate Committee on Commerce, Science, and Transportation and 
     the House of Representatives Committee on Energy and 
     Commerce--
       (1) A report within 9 months after the date of enactment of 
     this Act, that sets forth a system for rewarding those who 
     supply information about violations of this Act, including--
       (A) procedures for the Commission to grant a reward of not 
     less than 20 percent of the total civil penalty collected for 
     a violation of this Act to the first person that--
       (i) identifies the person in violation of this Act; and
       (ii) supplies information that leads to the successful 
     collection of a civil penalty by the Commission; and
       (B) procedures to minimize the burden of submitting a 
     complaint to the Commission concerning violations of this 
     Act, including procedures to allow the electronic submission 
     of complaints to the Commission; and
       (2) A report, within 18 months after the date of enactment 
     of this Act, that sets forth a plan for requiring unsolicited 
     commercial electronic mail to be identifiable from its 
     subject line, by means of compliance with Internet 
     Engineering Task Force standards, the use of the characters 
     ``ADV'' in the subject line, or other comparable identifier, 
     or an explanation of any concerns the Commission has that 
     cause the Commission to recommend against the plan.
       (b) Implementation of Reward Systems.--The Commission may 
     establish and implement the plan under subsection (a)(1), but 
     not earlier than 12 months after the date of enactment of 
     this Act.

  Mr. CORZINE. Mr. President, this amendment is based on legislation I 
introduced earlier this year, S. 1327, which proposed an innovative way 
to improve anti-spam laws. The amendment would move us toward a system 
that creates an incentive for individuals to assist the FTC in 
identifying spammers, by giving them a portion of

[[Page S13041]]

any collections resulting from information provided to the Commission. 
It also calls for the FTC to set forth a plan for requiring all 
unsolicited commercial e-mail to be identifiable from its subject line 
by means of the use of the characters ``ADV'' or other comparable 
identifier. If the Commission recommends against such a plan, it will 
have to provide Congress with a full explanation.
  The fundamental problem in dealing with spam is enforcement. It is 
one thing to propose rules governing e-mails. But it is often hard for 
Government officials to track down those who violate those standards. 
Spammers typically use multiple e-mail addresses or disguised routing 
information to avoid being identified. As a result, finding spammers 
can take not just real expertise, but persistence, time, energy and 
commitment.
  The concept of requiring the FTC to pay a bounty to those who track 
down spammers actually isn't my idea. It was originally proposed by one 
of the leading thinkers about the Internet, Professor Lawrence Lessig 
of Stanford Law School, and introduced in the House of Representatives 
by Congresswoman Zoe Lofgren. The proposal would invite anyone who uses 
the Internet to hunt down these law-violating spammers. These would 
include people who send fraudulent e-mail, e-mail with inaccurate 
routing information, and e-mail that fails to include the required opt-
out. The FTC would then fine the spammer and pay a portion of that fine 
as a reward to the person who provided the information.
  Creating incentives for private individuals to help track down 
spammers is likely to substantially strengthen the enforcement of anti-
spam laws. It promises to create an army of computer geeks who seek out 
spammers for their and the public's--benefit. Those who share my belief 
in the efficiency of entrepreneurial capitalism should understand the 
potential value of this free market approach to enforcement.
  At the request of the managers, I have modified the original proposal 
I introduced earlier this year. This amendment calls for the FTC to 
develop a plan to implement a bounty hunting system and issue a report 
to the Congress within 9 months of enactment. The Commission then could 
implement the plan, but not before 12 months after the date of 
enactment. While this doesn't go quite as far as I proposed originally, 
I think it is an important step forward. And I am pleased that the 
managers have committed to me that they will secure inclusion of the 
proposal in any related conference report.
  I also am pleased that the amendment calls on the FTC to investigate 
another proposal that I actually believe is very important in the 
reduction of spam, and that also was included in legislation I 
introduced earlier this year: a requirement that the subject line of 
unsolicited commercial e-mails include a so-called ``ADV'' label. In my 
view, such an approach would give individuals and ISPs considerable 
power to keep spam out of their in boxes, and I am hopeful that we will 
return to this proposal before long. In fact, I understand that some 
members of the House of Representatives will be pursuing this on a 
related bill, and I hope there will be a way to include an enforceable 
labeling requirement in a conference report on anti-spam legislation.
  Mr. McCAIN. Mr. President, I support the amendment by Senator 
Corzine. I thank my colleagues for reaching a compromise at this time. 
I thank those who rapidly wrote this amendment on short notice so we 
could complete work on this legislation.
  The amendment has two components. The first part addresses labeling 
of unsolicited commercial e-mail with the term ADV and also addresses 
the possibility of industry self-regulation. The Federal Trade 
Commission has raised serious concerns with both of these proposals 
with respect to ADV labeling. The FTC has written to me in opposition 
to labeling:

       First, consumer groups, ISPs, and emailers at the SPAM 
     Forum roundly criticized the mandatory use of an ``ADV'' 
     label. Labeling requirements could harm legitimate marketers, 
     while illegitimate marketers are likely to ignore the 
     requirement. Indeed, although several States require ``ADV'' 
     labels on unsolicited commercial email, in its recent study 
     on False Claims in SPAM, Commission staff found that only 2 
     percent of email messages analyzed contained such a label.

  In lieu of Senator Corzine's original proposal to make ADV labeling 
an industry self-regulation, the amendment has been modified to require 
the Federal Trade Commission to report to Congress on whether the ADV 
labeling and industry self-regulation should be implemented.
  So I think this is a sensible solution in light of the Federal Trade 
Commission's concerns as I just read from their report to Congress.
  The second part of the amendment would authorize the Federal Trade 
Commission to adopt a bounty hunter proposal to give people a portion 
of the fines collected from spammers that they hope to catch. As with 
the Do Not Spam Registry, the FTC would be authorized to act after 
first sending a report to Congress.
  I support the amendment.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, I also support the amendment. This is a 
compromise. Both of these topics are topics about which we really have 
not heard a lot. We have not had a chance to discuss them in hearings. 
Senator Corzine has been working constructively with us. I urge the 
passage of it.
  The bounty issue essentially comes from Professor Lessig at Stanford, 
looking at innovative ways to create incentives to deal with the 
problem. It is certainly one the Federal Trade Commission should look 
at. The question about making sure every unsolicited e-mail has ADV has 
been contentious among a number of small business groups, ones that 
have really been burdened by these costs. But I think this is a fair 
compromise. It gives the Federal Trade Commission ample opportunity to 
study this and look at the feasibility of it. I urge our colleagues to 
support it.
  As soon as we agree to the Corzine amendment, I believe Senator 
Harkin has a unanimous consent request he needs to make, and then we 
are ready to go to final passage. I urge my colleagues now to support 
the Corzine amendment.
  The PRESIDING OFFICER. If there is no further debate, without 
objection, the amendment is agreed to.
  The amendment (No. 1896) was agreed to.
  Mr. PRYOR. Mr. President, last month, this body overwhelmingly voted 
to stop unwanted phone calls from telemarketers. We put our foot down 
and stopped these uninvited guests from barging into our home, 
interrupting our family time and invading our privacy. I would like to 
think that families can enjoy a peaceful dinner now that we have 
allowed the Do-Not-Call list to move forward.
  Today we address a similar problem--America's e-mail inboxes have 
been invaded by unwanted and deceptive e-mail solicitations. Not only 
is this practice annoying and frustrating to our constituents, but the 
practice is costing consumers and businesses valuable time and 
resources.
  In a report dated January 22, 2003, the Federal Trade Commission 
indicated that at least 40 percent of all e-mail is spam, with more 
than half considered to contain false and deceptive information. This 
has been a problem in my State of Arkansas. The FTC recorded 2,048 
fraud and identity theft complaints from Arkansas consumers who 
reported having lost $1.3 million to these scams.
  In addition, businesses are losing money as employees spend time 
wading through unsolicited e-mail messages and are forced to 
continuously update their servers and software in an attempt to avoid 
spam and prevent worms and viruses that are submitted through spam.
  One thing I have learned as Senator is that this body does not agree 
often on the root of a problem. But I know for sure that each of us can 
agree that we have better things to do with our time than delete dozens 
of emails about the latest diet craze or money scheme. Even more, I 
know none of the mothers and fathers in this body want their children 
to receive emails that contain inappropriate sexual material. Neither 
do the mothers and fathers in Arkansas.
  Now is the time to crack down on deceptive and unsolicited spam once 
and for all.
  This bill which I support has two strong elements:

[[Page S13042]]

  First, it would require anyone sending unsolicited bulk e-mail 
directly, or through an intermediary, to provide each recipient with a 
valid ``opt-out'' process for declining any future spam.
  Second, it would outlaw transmitting high-volume unsolicited e-mail 
sources if they contain false, misleading or deceptive routing 
information, or forged e-mail addresses.

  I am pleased that this bill has been made even stronger with the 
inclusion of Senator Bill Nelson's RICO statute amendment. I am proud 
to be named as the provision's original cosponsor.
  This amendment encourages the prosecution of those people who use 
spam to seek money illegally or who engage in other illegal acts by 
making use of the civil Federal Racketeer Influenced and Corrupt 
Organizations Act, commonly known as RICO.
  RICO makes it illegal to acquire or maintain a business through a 
pattern of racketeering activity. This law lets authorities seize the 
assets of such an operation and allows victims grounds for recovery in 
civil court.
  By adopting the amendment, this body has given the overall bill 
teeth, which will go along way toward punishing those scam artists who 
prey on the everyday trusting, law-abiding citizens of our land.
  As Attorney General I fought to curtail mail fraud and I think some 
of the spam being sent to Arkansans online is in that same category. 
The only difference is that this type of fraud reaches many more 
victims in a shorter period of time.
  I look forward to the completion of this bill, and I am pleased that 
we have again been able to work in a bipartisan matter to carry out the 
will of the populace.
  Mr. LEAHY. Mr. President, it is increasingly apparent that unwanted 
commercial e-mail, commonly known as ``spam,'' is more than just a 
nuisance. In the past few years, it has become a serious and growing 
problem that threatens to undermine the vast potential of the Internet.
  Businesses and individuals currently wade through tremendous amounts 
of spam in order to access e-mail that is of relevance to them--and 
this is after ISPs, businesses, and individuals have spent time and 
money blocking a large percentage of spam from reaching its intended 
recipients.
  In my home State of Vermont, one legislator recently found that two-
thirds of the 96 e-mails in his inbox were spam. And this occurred 
after the legislature had installed new spam-blocking software on its 
computer system that seemed to be catching 80 percent of the spam. The 
assistant attorney general in Vermont was forced to suggest to computer 
users the following means to avoid these unsolicited commercial e-
mails: ``It's very bad to reply, even to say don't send anymore. It 
tells the spammer they have a live address . . . The best thing you can 
do is just keep deleting them. If it gets really bad, you may have to 
change your address.'' This experience is echoed nationwide.
  E-mail users are having the online equivalent of the experience of 
the woman in the Monty Python skit, who seeks to order a Spam-free 
breakfast at a restaurant. Try as she might, she cannot get the 
waitress to bring her the meal she desires. Every dish in the 
restaurant comes with Spam; it's just a matter of how much. There's 
``egg, bacon and Spam''; ``egg, bacon, sausage and Spam''; ``Spam, 
bacon, sausage and Spam''; ``Spam, egg, Spam, Spam, bacon and Spam''; 
``Spam, sausage, Spam, Spam, Spam, bacon, Spam, tomato and Spam''; and 
so on. Exasperated, the woman finally cries out: ``I don't like Spam! . 
. . I don't want ANY Spam!''
  Individuals and businesses are reacting similarly to electronic spam. 
A Harris poll taken late last year found that 80 percent of respondents 
view spam as ``very annoying,'' and fully 74 percent of respondents 
favor making mass spamming illegal. Earlier this month, more than 3 out 
of 4 people surveyed by Yahoo! Mail said it was ``less aggravating to 
clean a toilet'' than to sort through spam. Americans are fed up.
  Some 30 States now have antispam laws, but the globe-hopping nature 
of e-mail makes these laws difficult to enforce. Technology will 
undoubtedly play a key role in fighting spam, but a technological 
solution to the problem is not likely in the foreseeable future. ISPs 
block billions of unwanted e-mails each day, but spammers are winning 
the battle.
  Millions of unwanted, unsolicited commercial e-mails are received by 
American businesses and individuals each day, despite their own, 
additional filtering efforts. A recent study by Ferris Research 
estimates that spam costs U.S. firms $8.9 billion annually in lost 
worker productivity, consumption of bandwidth, and the use of technical 
support to configure and run spam filters and provide helpdesk support 
for spam recipients.
  The costs of spam are significant to individuals as well, including 
time spent identifying and deleting spam, inadvertently opening spam, 
installing and maintaining antispam filters, tracking down legitimate 
messages mistakenly deleted by spam filters, and paying for the ISP's 
blocking efforts.
  And there are other prominent and equally important costs of spam. It 
may introduce viruses, worms, and Trojan horses into personal and 
business computer systems, including those that support our national 
infrastructure.
  The public has recently witnessed the potentially staggering effects 
of a virus, not only through the Blaster case I discussed earlier, but 
with the appearance of the SoBigF virus just 8 days after Blaster began 
chewing its way through the Internet. This variant also infected 
Windows machines via e-mail, then sent out dozens of copies of itself. 
Antivirus experts say one of the main reasons virus writers continue to 
modify and re-release this particular piece of ``malware'' is that it 
downloads a Trojan horse to infected computers, which are then used to 
send spam.
  Spammers are constantly in need of new machines through which to 
route their garbage e-mail, and a virus makes a perfect delivery 
mechanism for the engine they use for their mass mailings. Some 
analysts said the SoBigF virus may have been created with a more 
malicious intent than most viruses, and may even be linked to spam e-
mail schemes that could be a source of cash for those involved in the 
scheme.
  The interconnection between computer viruses and spam is readily 
apparent: Both flood the Internet in an attempt to force a message on 
people who would not otherwise choose to receive it. Criminal laws I 
wrote prohibiting the former have been invoked and enforced from the 
time they were passed it is the latter dilemma we must now confront 
headon.
  Spam is also fertile ground for deceptive trade practices. The FTC 
has estimated that 96 percent of the spam involving investment and 
business opportunities, and nearly half of the spam advertising health 
services and products, and travel and leisure, contains false or 
misleading information.
  This rampant deception has the potential to undermine Americans' 
trust of valid information on the Internet. Indeed, it has already 
caused some Americans to refrain from using the Internet to the extent 
they otherwise would. For example, some have chosen not to participate 
in public discussion forums, and are hesitant to provide their 
addresses in legitimate business transactions, for fear that their e-
mail addresses will be harvested for junk e-mail lists. And they are 
right to be concerned. The FTC found spam arriving at its computer 
system just 9 minutes after posting an e-mail address in an online chat 
room.
  I have often said that Congress must exercise great caution when 
regulating in cyberspace. Any legislative solution to spam must tread 
carefully to ensure that we do not impede or stifle the free flow of 
information on the Internet. The United States is the birthplace of the 
Internet, and the whole world watches whenever we decide to regulate 
it. Whenever we choose to intervene in the Internet with government 
action, we must act carefully, prudently, and knowledgeably, keeping in 
mind the implications of what we do and how we do it. And we must not 
forget that spam, like more traditional forms of commercial speech, is 
protected by the first amendment.
  At the same time, we must not allow spam to result in the ``virtual 
death'' of the Internet, as one Vermont newspaper put it.

[[Page S13043]]

  The Internet is a valuable asset to our Nation, to our economy, and 
to the lives of Americans, and we should act prudently to secure its 
continued viability and vitality.
  On June 19 of this year, Senator Hatch and I introduced S.1293, the 
Criminal Spam Act, together with several of our colleagues on the 
Judiciary Committee. On September 25, the committee unanimously voted 
to report the bill to the floor. Today, Senators Hatch, Nelson, 
Schumer, Grassley and I offered the criminal provisions of S. 1293 as 
an amendment to S. 877, the CAN SPAM Act. The amendment was adopted by 
voice vote.
  I thank the lead cosponsors of S. 877 for working with us on this 
amendment, and for their support and cosponsorship of the Criminal Spam 
Act. I also thank Senator Bill Nelson for his contribution to the 
amendment.
  The Hatch-Leahy amendment prohibits five principal techniques that 
spammers use to evade filtering software and hide their trails.
  First, our amendment prohibits hacking into another person's computer 
system and sending bulk spam from or through that system. This 
criminalizes the common spammer technique of obtaining access to other 
people's e-mail accounts on an ISP's e-mail network, whether by 
password theft or by inserting a ``Trojan horse'' program--that is, a 
program that unsuspecting users download onto their computers and that 
then takes control of those computers--to send bulk spam.
  Second, our amendment prohibits using a computer system that the 
owner makes available for other purposes as a conduit for bulk spam, 
with the intent of deceiving recipients as to the spam's origins. This 
prohibition criminalizes another common spammer technique--the abuse of 
third parties' ``open'' servers, such as e-mail servers that have the 
capability to relay mail, or Web proxy servers that have the ability to 
generate ``form'' mail. Spammers commandeer these servers to send bulk 
commercial e-mail without the server owner's knowledge, either by 
``relaying'' their e-mail through an ``open'' e-mail server, or by 
abusing an ``open'' Web proxy server's capability to generate form e-
mails as a means to originate spam, thereby exceeding the owner's 
authorization for use of that e-mail or Web server. In some instances 
the hijacked servers are even completely shut down as a result of tens 
of thousands of undeliverable messages generated from the spammer's e-
mail list.
  The amendment's third prohibition targets another way that outlaw 
spammers evade ISP filters: falsifying the ``header information'' that 
accompanies every e-mail, and sending bulk spam containing that fake 
header information. More specifically, the amendment prohibits forging 
information regarding the origin of the e-mail message, and the route 
through which the message attempted to penetrate the ISP filters.
  Fourth, the Hatch-Leahy amendment prohibits registering for multiple 
e-mail accounts or Internet domain names, and sending bulk e-mail from 
those accounts or domains. This provision targets deceptive ``account 
churning,'' a common outlaw spammer technique that works as follows. 
The spammer registers--usually by means of an automatic computer 
program--for large numbers of e-mail accounts or domain names, using 
false registration information, then sends bulk spam from one account 
or domain after another. This technique stays ahead of ISP filters by 
hiding the source, size, and scope of the sender's mailings, and 
prevents the e-mail account provider or domain name registrar from 
identifying the registrant as a spammer and denying his registration 
request. Falsifying registration information for domain names also 
violates a basic contractual requirement for domain name registration 
falsification.
  Fifth and finally, our amendment addresses a major hacker spammer 
technique for hiding identity that is a common and pernicious 
alternative to domain name registration--hijacking unused expanses of 
Internet address space and using them as launch pads for junk e-mail. 
Hijacking Internet Protocol--IP--addresses is not difficult: Spammers 
simply falsely assert that they have the right to use a block of IP 
addresses, and obtain an Internet connection for those addresses. 
Hiding behind those addresses, they can then send vast amounts of spam 
that is extremely difficult to trace.
  Penalties for violations of these new criminal prohibitions are tough 
but measured. Recidivists and those who send spam in furtherance of 
another felony may be imprisoned for up to 5 years. Large-volume 
spammers, those who hack into another person's computer system to send 
bulk spam, and spam ``kingpins'' who use others to operate their 
spamming operations may be imprisoned for up to 3 years. Other 
offenders may be fined and imprisoned for no more than one year. 
Convicted offenders are also subject to forfeiture of proceeds and 
instrumentalities of the offense.
  In addition to these penalties, the Hatch-Leahy amendment directs the 
Sentencing Commission to consider providing sentencing enhancements for 
those convicted of the new criminal provisions who obtained e-mail 
addresses through improper means, such as harvesting, and those who 
knowingly sent spam containing or advertising a falsely registered 
Internet domain name. We have also worked with Senator Nelson on 
language directing the Sentencing Commission to consider enhancements 
for those who commit other crimes that are facilitated by the sending 
of spam.
  I should note that the Criminal Spam Act, from which the amendment is 
taken, enjoys broad support from ISPs, direct marketers, consumer 
groups, and civil liberties groups alike. It is also supported by the 
administration: In its September 11, 2003, views letter regarding the 
CAN SPAM Act, the administration advocated the addition to CAN SPAM of 
felony triggers similar to those proposed in the Criminal Spam Act. The 
administration further supported our proposal, advanced in the Hatch-
Leahy amendment, to direct the Sentencing Commission to consider 
sentencing enhancements for convicted spammers that have additionally 
obtained e-mail addresses by harvesting.
  Again, the purpose of the Hatch-Leahy amendment is to deter the most 
pernicious and unscrupulous types of spammers--those who use trickery 
and deception to induce others to relay and view their messages. 
Ridding America's inboxes of deceptively delivered spam will 
significantly advance our fight against junk e-mail. But it is not a 
cure-all for the spam pandemic.
  The fundamental problem inherent to spam--its sheer volume--may well 
persist even in the absence of fraudulent routing information and false 
identities. In a recent survey, 82 percent of respondents considered 
unsolicited bulk e-mail, even from legitimate businesses, to be 
unwelcome spam. Given this public opinion, and in light of the fact 
that spam is, in essence, cost-shifted advertising, we need to take a 
more comprehensive approach to our fight against spam.
  While I am generally supportive of the CAN SPAM Act, and will vote in 
favor of passage, it does raise some concerns. The bill takes an ``opt 
out'' approach to spam--that is, it requires all commercial e-mail to 
include an ``opt out'' mechanism, by which e-mail recipients may opt 
out of receiving further unwanted spam. My concern is that this 
approach permits spammers to send at least one piece of spam to each e-
mail address in their database, while placing the burden on e-mail 
recipients to respond. People who receive dozens, even hundreds, of 
unwanted e-mails each day may have little time or energy for anything 
other than opting-out from unwanted spam.
  According to one organization's calculations, if just one percent of 
the approximately 24 million small businesses in the U.S. sent every 
American just one spam a year, that would amount to over 600 pieces of 
spam for each person to sift through and opt out of each day. And this 
figure may be conservative, as it does not include the large businesses 
that also engage in online advertising.
  I am also troubled by the labeling requirement in the CAN SPAM Act, 
which makes it unlawful to send an unsolicited commercial e-mail 
message unless it provides, among other things, `` clear and 
conspicuous identification that the message is an advertisement or 
solicitation,'' and ``a valid physical postal address of the sender''. 
While we all want to curb spam, we must be mindful of its status as 
protected commercial speech, and ensure that any restrictions we impose 
on it are as narrowly tailored as possible.

[[Page S13044]]

  Reducing the volume of junk commercial e-mail, and so protecting 
legitimate Internet communications, is not an easy matter. There are 
important First Amendment interests to consider, as well as the need to 
preserve the ability of legitimate marketers to use e-mail responsibly. 
We must be sure we get this right, so as not to exacerbate an already 
terribly vexing problem. This is especially important given the 
preemption provisions of the CAN SPAM Act, which will override many of 
the tough anti-spamming laws already enacted by the States.
  My distinguished colleagues from Wyoming and Pennsylvania offered an 
amendment requiring ``warning labels'' on certain commercial electronic 
mail. While I appreciate my colleagues' efforts to protect our children 
from the on-line assault of internet pornography--an important goal 
that we all share--I fear the amendment has been drafted in haste and 
raises significant constitutional issues that require further analysis.
  First, the amendment incorporates broad and vague phrases such as 
``devoted to sexual matters'' that are not otherwise defined in the 
law. I expressed similar concerns during debate on the Communications 
Decency Act, CDA, which the Supreme Court struck down as 
unconstitutional in 1996. The CDA also punished as a felony anyone who 
transmitted ``obscene'' or ``indecent'' material over the Internet. The 
CDA was deemed too vague as to what was ``indecent'' or ``obscene.'' 
Some of the terms and phrases used in the Enzi-Santorum amendment may 
be deemed equally vague when subjected to judicial scrutiny.
  There are also first amendment concerns to regulating commercial 
electronic mail in ways that require specific labels on protected 
speech. Such requirements inhibit both the speaker's right to express 
and the listener's right to access constitutionally protected material.
  More importantly, existing laws already ban obscenity, harassment, 
child pornography and enticing minors into sexual activity.
  As a father and a grandfather, I well appreciate the challenge of 
limiting a child's exposure to sexually inappropriate material. Yet, no 
legislation we could pass would be an effective substitute for parental 
involvement. We must be vigilant about feel-good efforts to involve 
government, either directly or indirectly, in regulating the content of 
the Internet.
  For these reasons, the Enzi-Santorum amendment raises serious legal 
issues that mandate further exploration before a determination can be 
made on the proposed law's constitutional viability.
  I look forward to continuing to work with the sponsors of the CAN 
SPAM Act on these issues as the bill proceeds to conference.
  Ms. CANTWELL. Mr. President, I rise today in support of the Burns-
Wyden CAN-SPAM Act, which would impose limitations and penalties on the 
transmission of unsolicited commercial electronic mail via the 
Internet.
  I would like to thank my colleagues, Senators Wyden and Burns, for 
their leadership in tackling this problem which affects so many 
consumers in my State of Washington. Unsolicited commercial email or 
``spam'' is a major irritant to consumers and businesses alike. Spam 
exposes computer users--often young children--to pornography, sexual 
predators, fraudulent schemes, and other unwanted or harmful messages. 
In addition, spam costs American business close to $10 billion each 
year in lost productivity, additional infrastructure costs, and legal 
fees--costs that are ultimately borne by consumers. By clogging our 
computers, spam threatens to deprive us of the tremendous benefits 
provided by the Internet.
  This bill represents a crucial first step in combating the 
exponential increase in the volume of spam, which today accounts for 
half of all email messages. Because of the global nature of this 
problem and the anonymity that the Internet affords spammers, it is 
impossible for states or individuals alone to take meaningful steps to 
reduce the impact of this nuisance, and self-regulation is simply not 
an option. The overwhelming volume of sleazy and fraudulent 
solicitations originating from criminal organizations demands a tough 
response that imposes both civil and criminal penalties.
  That is precisely why this bill is so necessary. To protect computer 
users in my State and across the country, we must take immediate steps 
to stem the mountain of spam hitting email inboxes every day.
  The Burns-Wyden bill is a long-awaited step in the right direction. 
The bill has been carefully negotiated and improved. By allowing 
enforcement by State attorneys general and by Internet service 
providers, we have increased the odds of successful enforcement against 
the worst spammers. By prohibiting harvesting of email addresses, the 
use of technology to send thousands of spammed messages, and by 
prohibiting false and misleading message headers, the bill will send a 
clear message to the most abusive spammers that their practices will no 
longer be tolerated.
  But enforcement will remain a challenge. Spammers have every 
incentive to increase the volume of their messages because the marginal 
cost of sending another message is virtually nothing. And because of 
the anonymity and global nature of the internet, spammers can hide 
their identity and move their operations offshore.
  While the bill before us will finally put in place a Federal approach 
to the global problem of spam, there is no single solution to this 
complex problem. I am pleased that the bill will require the Federal 
Trade Commission to develop legislation to establish a national Do Not 
Email registry modeled on the Do Not Call registry, but I believe there 
may come a point at which additional protections are necessary to 
protect consumers and to protect the growth of the information economy.
  I think we all recognize that we have much more work to do to solve 
this problem, but the Burns-Wyden bill is an excellent first step in 
addressing the problem, and I am pleased to help pass this important 
legislation.
  Mr. McCAIN. Mr. President, I suggest the absence of a quorum. Under 
the previous order, I believe the vote will start at 6:30.
  The PRESIDING OFFICER. That is correct. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BURNS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Under the previous order, the question is on the engrossment and 
third reading of the bill.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  The bill having been read the third time, the question is, Shall it 
pass?
  Mr. BURNS. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards), the Senator from Hawaii (Mr. Inouye), and the Senator from 
Massachusetts (Mr. Kerry) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``yea.''
  The PRESIDING OFFICER (Mr. Talent). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 97, nays 0, as follows:

                      [Rollcall Vote No. 404 Leg.]

                                YEAS--97

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (FL)
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inhofe
     Jeffords
     Johnson
     Kennedy
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)

[[Page S13045]]


     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                             NOT VOTING--3

     Edwards
     Inouye
     Kerry
  The bill (S. 877), as amended, was passed, as follows:
  Mr. DASCHLE. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________