[Congressional Record Volume 149, Number 170 (Friday, November 21, 2003)]
[House]
[Pages H12186-H12198]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CONTROLLING THE ASSAULT OF NON-SOLICITED PORNOGRAPHY AND MARKETING ACT
OF 2003
Mr. TAUZIN. Mr. Speaker, I move to suspend the rules and pass the
Senate bill (S. 877) to regulate interstate commerce by imposing
limitations and penalties on the transmission of unsolicited commercial
electronic mail via the Internet, as amended.
The Clerk read as follows:
S. 877
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Controlling the Assault of
Non-Solicited Pornography and Marketing Act of 2003'', or the
``CAN-SPAM Act of 2003''.
SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.
(a) Findings.--The Congress finds the following:
(1) 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 half of all electronic mail traffic, up from an
estimated 7 percent in 2001, and the volume continues to
rise. Most of these 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 unwanted 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 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 commercial electronic mail
messages provide simple and reliable ways for recipients to
reject (or ``opt-out'' of) receipt of 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 commercial electronic mail on a nationwide
basis;
(2) senders of commercial electronic mail should not
mislead recipients as to the source or content of such mail;
and
(3) recipients of commercial electronic mail have a right
to decline to receive additional commercial electronic mail
from the same source.
SEC. 3. DEFINITIONS.
In this Act:
(1) Affirmative consent.--The term ``affirmative consent'',
when used with respect to a commercial electronic mail
message, means that--
(A) the recipient expressly consented to receive the
message, either in response to a clear and conspicuous
request for such consent or at the recipient's own
initiative; and
(B) if the message is from a party other than the party to
which the recipient communicated such consent, the recipient
was given clear and conspicuous notice at the time the
consent was communicated that the recipient's electronic mail
address could be transferred to such other party for the
purpose of initiating commercial electronic mail messages.
(2) Commercial electronic mail message.--
(A) In general.--The term ``commercial electronic mail
message'' means any electronic mail message the primary
purpose of which is the commercial advertisement or promotion
of a commercial product or service (including content on an
Internet website operated for a commercial purpose).
(B) Transactional or relationship messages.--The term
``commercial electronic mail message'' does not include a
transactional or relationship message.
(C) Regulations regarding primary purpose.--Not later than
12 months after the date of the enactment of this Act, the
Commission shall issue regulations pursuant to section 13
further defining the relevant criteria to facilitate the
determination of the primary purpose of an electronic mail
message.
(D) 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''), whether or not displayed, 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
[[Page H12187]]
purporting to identify, a person initiating the message.
(9) 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.
(10) Internet.--The term ``Internet'' has the meaning given
that term in the Internet Tax Freedom Act (47 U.S.C. 151 nt).
(11) 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)).
(12) 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.
(13) Protected computer.--The term ``protected computer''
has the meaning given that term in section 1030(e)(2)(B) 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
identified the recipients or provided the recipient
addresses.
(16) Sender.--
(A) In general.--Except as provided in subparagraph (B),
the term ``sender'' means a person who initiates such a
message and whose product, service, or Internet web site is
advertised or promoted by the message.
(B) Separate lines of business or divisions.--If an entity
operates through separate lines of business or divisions and
holds itself out to the recipient of the message, in
complying with the requirement under section 5(a)(5)(B), 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 of such message for purposes of this
Act.
(17) Transactional or relationship message.--
(A) In general.--The term ``transactional or relationship
message'' means an electronic mail message the primary
purpose of which is--
(i) to facilitate, complete, or confirm a commercial
transaction that the recipient has previously agreed to enter
into with the sender;
(ii) 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;
(iii) 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;
(iv) to provide information directly related to an
employment relationship or related benefit plan in which the
recipient is currently involved, participating, or enrolled;
or
(v) 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.
(B) Modification of definition.--The Commission by
regulation pursuant to section 13 may modify the definition
in subparagraph (A) to expand or contract the categories of
messages that are treated as transactional or relationship
messages for purposes of this Act to the extent that such
modification is necessary to accommodate changes in
electronic mail technology or practices and accomplish the
purposes of this Act.
SEC. 4. PROHIBITION AGAINST PREDATORY AND ABUSIVE COMMERCIAL
E-MAIL.
(a) Offense.--
(1) In general.--Chapter 47 of title 18, United 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) materially falsifies header information in multiple
commercial electronic mail messages and intentionally
initiates the transmission of such messages,
``(4) registers, using information that materially
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 oneself to be the registrant or
the legitimate successor in interest to the registrant of 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 United States or of any State; 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 subsection (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) Materially.--For purposes of paragraphs (3) and (4)
of subsection (a), header information or registration
information is materially misleading if it is altered or
concealed in a manner that would impair the ability of a
recipient of the message, an Internet access service
processing the message on behalf of a recipient, a person
alleging a violation of this section, or a law enforcement
agency to identify, locate, or respond to a person who
initiated the electronic mail message or to investigate the
alleged violation.
``(3) 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.
``(4) 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.
``1037. 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
[[Page H12188]]
of large quantities of unsolicited electronic mail.
(2) 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
website, 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
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.
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, or a transactional or relationship
message, that contains, or is accompanied by, header
information that is materially false or materially
misleading. For purposes of this paragraph--
(A) header information that is technically accurate but
includes an originating electronic mail address, domain name,
or Internet protocol 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) a ``from'' line (the line identifying or purporting to
identify a person initiating the message) that accurately
identifies any person who initiated the message shall not be
considered materially false or materially misleading; and
(C) header information shall be considered materially
misleading if it fails to identify accurately 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.
(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 if
such person has actual knowledge, or knowledge fairly implied
on the basis of objective circumstances, that a subject
heading of the message 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 (consistent with the criteria are used in enforcement
of section 5 of the Federal Trade Commission Act (15 U.S.C.
45)).
(3) Inclusion of return address or comparable mechanism in
commercial electronic mail.--
(A) In general.--It is unlawful for any person to initiate
the transmission to a protected computer of a commercial
electronic mail message that does not contain a functioning
return electronic mail address or other Internet-based
mechanism, clearly and conspicuously displayed, that--
(i) a recipient may use to submit, in a manner specified in
the message, a reply electronic mail message or other form of
Internet-based communication requesting not to receive future
commercial electronic mail messages from that sender at the
electronic mail address where the message was received; and
(ii) remains capable of receiving such messages or
communications for no less than 30 days after the
transmission of the original message.
(B) More detailed options possible.--The person initiating
a commercial electronic mail message may comply with
subparagraph (A)(i) by providing the recipient a list or menu
from which the recipient may choose the specific types of
commercial electronic mail messages the recipient wants to
receive or does not want to receive from the sender, if the
list or menu includes an option under which the recipient may
choose not to receive any 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 a technical
problem beyond the control of the sender if the problem is
corrected within a reasonable time period.
(4) Prohibition of transmission of commercial electronic
mail after objection.--
(A) In general.--If a recipient makes a request using a
mechanism provided pursuant to paragraph (3) not to receive
some or any commercial electronic mail messages from such
sender, then it is unlawful--
(i) for the sender to initiate the transmission to the
recipient, more than 10 business days after the receipt of
such request, of a commercial electronic mail message that
falls within the scope of the request;
(ii) 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 a
commercial electronic mail message with actual knowledge, or
knowledge fairly implied on the basis of objective
circumstances, that such message falls within the scope of
the request;
(iii) 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 a commercial electronic mail message
with actual knowledge, or knowledge fairly implied on the
basis of objective circumstances, that such message would
violate clause (i) or (ii); or
(iv) 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, except
where the recipient has given express consent.
(B) Opt back in.--A prohibition in clause (i), (ii), or
(iii) of subparagraph (A) does not apply if there is
affirmative consent by the recipient subsequent to the
request under subparagraph (A).
(5) Inclusion of identifier, opt-out, and physical address
in commercial electronic mail.--
(A) It is unlawful for any person to initiate the
transmission of any commercial electronic mail message to a
protected computer unless the message provides--
(i) clear and conspicuous identification that the message
is an advertisement or solicitation;
(ii) clear and conspicuous notice of the opportunity under
paragraph (3) to decline to receive further commercial
electronic mail messages from the sender; and
(iii) a valid physical postal address of the sender.
(B) Subparagraph (A)(i) does not apply to the transmission
of a commercial electronic mail if the recipient has given
prior affirmative consent to receipt of the message.
(6) Subsequent affirmative consent.--The prohibitions in
subparagraphs (A), (B), and (C) do not apply to the
initiation of transmission of commercial electronic mail to a
recipient who, subsequent to a request using a mechanism
provided pursuant to paragraph (3) not to receive commercial
electronic mail messages from the sender, has granted
affirmative consent to the sender to recieve such messages.
(7) Materially.--For purposes of paragraph (1)(A), header
information shall be considered to be materially misleading
if it is altered or concealed in a manner that would impair
the ability of an Internet access service processing the
message on behalf of a recipient, a person alleging a
violation of this section, or a law enforcement agency to
identify, locate, or respond to the person who initiated the
electronic mail message or to investigate the alleged
violation, or the ability of a recipient of the message to
respond to a person who initiated the electronic message..
(b) Aggravated Violations Relating to 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 a 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 had actual knowledge, or
knowledge fairly implied on the basis of objective
circumstances, 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, 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.
[[Page H12189]]
(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 register for 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, a 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 a 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) Supplementary Rulemaking Authority.--The Commission
shall by rule, pursuant to section 13--
(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).
(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 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) Prior affirmative consent.--Paragraph (1) does not
apply to the transmission of an electronic mail message if
the recipient has given prior affirmative consent to receipt
of the message.
(3) 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 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.
(4) 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.--Whoever knowingly violates paragraph (1)
shall be fined under title 18, United States Code, or
imprisoned not more than 5 years, or both.
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 (f) and (g)
of section 7 do not apply to violations of this section.
(d) Savings Provision.--Subject to section 7(f)(7), nothing
in this section may be construed to limit or prevent any
action that may be taken under this Act with respect to any
violation of any other section of this Act.
SEC. 7. ENFORCEMENT GENERALLY.
(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, 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, 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, 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, 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;
(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), except that in any State in which the
State insurance authority elects not to exercise this power,
the enforcement authority pursuant to this Act shall be
exercised by the Commission in accordance with subsection
(a);
(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
[[Page H12190]]
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) Availability of Cease-and-Desist Orders and Injunctive
Relief Without Showing of Knowledge.--Notwithstanding any
other provision of this Act, in any proceeding or action
pursuant to subsection (b), (c), or (d) of this section to
enforce compliance, through an order to cease and desist or
an injunction, with section 5(a)(2), subparagraph (B) or (C)
of section 5(a)(4), or section 5(b)(1)(A), neither the
Commission nor the Federal Communications Commission shall be
required to allege or prove the state of mind required by
such section or subparagraph.
(f) Enforcement by States.--
(1) Civil action.--In any case in which the attorney
general of a State, or an official or agency 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 who violates paragraph (1) or (2) of section 5(a), or
who engages in a pattern or practice that violates paragraph
(3), (4), or (5) of section 5(a) of this Act, the attorney
general, official, or agency of 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--
(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) Availability of injunctive relief without showing of
knowledge.--Notwithstanding any other provision of this Act,
in a civil action under paragraph (1)(A) of this subsection,
the attorney general, official, or agency of the State shall
not be not required to allege or prove the state of mind
required by section 5(a)(2), subparagraph (B) or (C) of
section 5(a)(4), or section 5(b)(1)(A).
(3) 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 up to $250.
(B) Limitation.--For any violation of section 5 (other than
section 5(a)(1)), the amount determined under subparagraph
(A) may not exceed $2,000,000.
(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).
(D) Reduction of damages.--In assessing damages under
subparagraph (A), the court may consider whether--
(i) the defendant has established and implemented, with due
care, commercially reasonable practices and procedures to
effectively prevent such violations; or
(ii) the violation occurred despite commercially reasonable
efforts to maintain compliance with such practices and
procedures.
(3) Attorney fees.--In the case of any successful action
under paragraph (1), the State may 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, or official or agency of a State, 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.
(8) Requisite Scienter for Certain Civil Actions.--Except
as provided in subsections (a)(2), (a)(4)(B), (a)(4)(C),
(b)(1), and (d) of section 5, and paragraph (2) of this
subsection, in a civil action brought by a State attorney
general, or an official or agency of a State, to recover
monetary damages for a violation of this Act, the court shall
not grant the relief sought unless the attorney general,
official, or agency establishes that the defendant acted with
actual knowledge, or knowledge fairly implied on the basis of
objective circumstances, of the act or omission that
constitutes the violation.
(g) Action by Provider of Internet Access Service.--
(1) Action authorized.--A provider of Internet access
service adversely affected by a violation of section 5(a) or
of section 5(b), or a pattern or practice that vioalted
paragraph (2), (3), (4), or (5) of section 5(a), may bring a
civil action in any district court of the United States with
jurisdiction over the defendant--
(A) to enjoin further violation by the defendant; or
(B) to 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 (3).
(2) Special definition of ``procure''.--In any action
brought under paragraph (1), this Act shall be applied as if
the definition of the term ``procure'' in section 3(12)
contained, after ``behalf'' the words ``with actual knowlege,
or by consciously avoiding knowing, whether such person is
engaging, or will engage, in a pattern or practice that
violates this Act''.
(3) 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).
(D) Reduction of damages.--In assessing damages under
subparagraph (A), the court may consider whether--
(i) the defendant has established and implemented, with due
care, commercially reasonable practices and procedures to
effectively prevent such violations; or
(ii) the violation occurred despite commercially reasonable
efforts to maintain compliance with such practices and
procedures.
(4) Attorney fees.--In any action brought pursuant to
paragraph (1), the court may, in its discretion, require an
undertaking for the payment of the costs of such action, and
assess reasonable costs, including reasonable attorneys'
fees, against any party.
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
[[Page H12191]]
commercial messages, except to the extent that any such
statute, regulation, or rule 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--
(A) State laws that are not specific to electronic mail,
including State trespass, contract, or tort law; or
(B) other State laws to the extent that those laws relate
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. 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.
SEC. 10. STUDY OF EFFECTS OF COMMERCIAL ELECTRONIC MAIL.
(a) In General.--Not later than 24 months after the date of
the enactment of this Act, the Commission, in consultation
with the Department of Justice and other appropriate
agencies, shall submit a report to the Congress that provides
a detailed analysis of the effectiveness and enforcement of
the provisions of this Act and the need (if any) for the
Congress to modify such provisions.
(b) Required Analysis.--The Commission shall include in the
report required by subsection (a)--
(1) an analysis of the extent to which technological and
marketplace developments, including changes in the nature of
the devices through which consumers access their electronic
mail messages, may affect the practicality and effectiveness
of the provisions of this Act;
(2) analysis and recommendations concerning how to address
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 commercial electronic mail that is obscene or
pornographic.
SEC. 11. IMPROVING ENFORCEMENT BY PROVIDING REWARDS FOR
INFORMATION ABOUT VIOLATIONS; LABELING.
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 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.
SEC. 12. RESTRICTIONS ON OTHER TRANSMISSIONS.
Section 227(b)(1) of the Communications Act of 1934 (47
U.S.C. 227(b)(1)) is amended, in the matter preceding
subparagraph (A), by inserting ``, or any person outside the
United States if the recipient is within the United States''
after ``United States''.
SEC. 13. REGULATIONS.
(a) In General.--The Commission may issue regulations to
implement the provisions of this Act (not including the
amendments made by sections 4 and 12). Any such regulations
shall be issued in accordance with section 553 of title 5,
United States Code.
(b) Limitation.--Subsection (a) may not be construed to
authorize the Commission to establish a requirement pursuant
to section 5(a)(5)(A) to include any specific words,
characters, marks, or labels in a commercial electronic mail
message, or to include the identification required by section
5(a)(5)(A) in any particular part of such a mail message
(such as the subject line or body).
SEC. 14. APPLICATION TO WIRELESS.
(a) Effect on Other Law.--Nothing in this Act shall be
interpreted to preclude or override the applicability of
section 227 of the Communications Act of 1934 (47 U.S.C. 227)
or the rules prescribed under section 3 of the Telemarketing
and Consumer Fraud and Abuse Prevention Act (15 U.S.C. 6102).
To the extent that a requirement of such Acts, or rules or
regulations promulgated thereunder, is inconsistent with the
requirement of this Act, the requirement of such other Acts,
or rules or regulations promulgated thereunder, shall take
precedence.
(b) FCC Rulemaking.--The Federal Communications Commission,
in consultation with the Federal Trade Commission, shall
promulgate rules within 270 days to protect consumers from
unwanted mobile service commercial messages. The rules shall,
to the extent consistent with subsection (c)--
(1) provide subscribers to commercial mobile services the
ability to avoid receiving mobile service commercial messages
unless the subscriber has provided express prior
authorization, except as provided in paragraph (3);
(2) allow recipients of mobile service commercial messages
to indicate electronically a desire not to receive future
mobile service commercial messages from the initiator;
(3) take into consideration, in determining whether to
subject providers of commercial mobile wireless services to
paragraph (1), the relationship that exists between providers
of such services and their subscribers, but if the Commission
determines that such providers should not be subject to
paragraph (1), the rules shall require such providers, in
addition to complying with the other provisions of this Act,
to allow subscribers to indicate a desire not to receive
future mobile service commercial messages at the time of
subscribing to such service, and in any billing mechanism;
and
(4) determine how initiators of mobile service commercial
messages may comply with the provisions of this Act,
considering the unique technical aspects, including the
functional and character limitations, of devices that receive
such messages.
(c) Other Factors Considered.--The Federal Communications
Commission shall consider the ability of an initiator of an
electronic mail message to reasonably determine that the
electronic mail message is a mobile service commercial
message.
(d) Mobile Service Commercial Message Defined.--In this
section, the term ``mobile service commercial message'' means
a commercial electronic mail message that contains text,
graphics, or images for visual display that is transmitted
directly to a wireless device that--
(1) is utilized by a subscriber of commercial mobile
service (as such term is defined in section 332(d) of the
Communications Act of 1934 (47 U.S.C. 332(d)) in connection
with such service; and
(2) is capable of accessing and displaying such a message.
SEC. 15. 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. 16. EFFECTIVE DATE.
The provisions of this Act, other than section 9, shall
take effect on January 1, 2004.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Louisiana (Mr. Tauzin) and the gentleman from Massachusetts (Mr.
Markey) each will control 20 minutes.
The Chair recognizes the gentleman from Louisiana (Mr. Tauzin).
General Leave
Mr. TAUZIN. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days within which to revise and extend their remarks
and to insert extraneous material on S. 877.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Louisiana?
There was no objection.
Mr. TAUZIN. Mr. Speaker, I ask unanimous consent that the gentleman
from Wisconsin (Mr. Sensenbrenner) be given control of 10 minutes of my
time.
The SPEAKER pro tempore. Without objection, the request of the
gentleman from Louisiana is granted.
There was no objection.
Mr. TAUZIN. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, for the second time in just a few months, Congress is on
the verge of passing watershed consumer protection legislation. Less
than 2
[[Page H12192]]
months ago, we enacted, in record time I might add, legislation that
codified the ability of the Federal Trade Commission to implement the
Do Not Call Registry on telemarketing phone calls. Today, we take an
equivalent step in the Internet area. S. 877, with the substitute I
have called up, will give millions of Americans the ability to block
unwanted and unsolicited commercial e-mail, what we now derisively call
spam.
The Internet has given us abilities beyond our wildest dreams; and as
it continues to grow in popularity and functionality, the time will
come when every American, from school kids to senior citizens,
homemakers to CEOs, will rely on it for crucial aspects of their lives.
I received, by the way, my first e-mail from my mom just this month.
And she was thrilled, and I was thrilled to see her enter the Internet
Age.
But one of the terrific aspects of the Internet, the ability to send
and receive e-mail, has given us enormous headaches because of spam. It
cripples computer networks and makes regular e-mail checking a
seemingly endless hassle.
{time} 1715
Even worse, a great deal of spam channels in pornography and other
subjects not worthy of discussion on a family cable channel, and this
spam frequently preys on defenseless, unsuspecting children.
Well, we are here to provide the necessary tools to end the nonsense
and to bring some peace of mind back to parents around the country. The
substitute before us will empower American consumers with a right to
opt out of all unwanted, unsolicited commercial e-mail, or spam, and it
will also provide the Federal Trade Commission with the authority to
set up a Do-Not-Spam Registry based upon the Do-Not-Call Registry. The
substitute grants strong protection for parents and consumers to say no
to the receipt of pornographic spam, and makes it a crime subject to 5
years in prison to send fraudulent spam. And finally, it gives the FTC
and State attorneys general the ability to vigorously enforce the new
law.
I am pleased to report that the product before us now enjoys broad
bipartisan support here in the House and also in the other body. The
bill can and should go to President Bush before we adjourn the first
session of the 108th Congress. Mr. Speaker, I urge my colleagues to
vote for this much-needed, bipartisan bill.
Mr. Speaker, I reserve the balance of my time.
Mr. MARKEY. Mr. Speaker, I yield 2 minutes to the gentleman from
Texas (Mr. Green).
Mr. GREEN of Texas. Mr. Speaker, I would like to thank our ranking
member on the Subcommittee on Telecommunications and the Internet for
yielding me this time.
I rise in strong support of S. 877, the compromise which has been
worked out on the antispam legislation.
First, I want to thank the gentlewoman from New Mexico (Mrs. Wilson)
for the many years of work she has put in with me and other members of
the Committee on Energy and Commerce.
I also thank the leadership of our committee, the ranking member, the
gentleman from Michigan (Mr. Dingell) and the gentleman from Louisiana
(Chairman Tauzin) for their strong commitment to this effort which the
gentlewoman from New Mexico (Mrs. Wilson) and I began almost 5 years
ago. She had a terrible personal experience with spam, and I heard from
constituents some of the same stories, and my wife and I have received
some of that same unsolicited spam on our own personal e-mail account.
This legislation will set the fair and clear standards for e-mail
marketing that consumers and the Internet need desperately. The future
of e-mail is at stake, and the time to act is now. Congress is
delivering the enforcement tools we need.
Importantly, this compromise has clear definitions of commercial e-
mail which the FTC can enforce and any individual consumer's request to
not receive further commercial e-mail from a sender will have the force
of the law. Spammers who lie and deceive with false header information
and deceptive subject lines will be lawbreakers and will be prosecuted
as such.
After we enact this legislation, spammers will no longer be able to
harvest e-mail addresses from Web pages across the Internet without the
threat of prosecution. There are so many good things in this bill that
it is hard to go over all of them in 2 minutes.
We will come after spammers from all angles. State attorneys general
are empowered, and Internet service providers are empowered to seek
damages up to $250 per e-mail or $6 million total.
After the success of the FTC's Do-Not-Call list, the Do-Not-Spam
registry implementation is feasible. I thank the gentleman from
Louisiana (Mr. Tauzin) and our ranking member, and I also thank the
many cosponsors of our original bill, H.R. 2515, on the antispam
effort.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I rise in support of the House-modified version of
Senate 877, and wish to thank my fellow chairman, the gentleman from
Louisiana (Mr. Tauzin), as well as the gentleman from Michigan (Mr.
Dingell) and the gentleman from Massachusetts (Mr. Markey) in working
out this compromise which deals with a very vexatious question, and I
think provides a win/win situation for everybody except the few bad
actors that flood the electronic media with spam.
The Internet has revolutionized commerce and communications by
permitting businesses to reach consumers in a digital, global
marketplace and has allowed individuals to communicate through the
speed and convenience of electronic mail. Unfortunately, the massive
growth of unsolicited e-mail or ``spam'' now threatens to kill the
utility of this popular media. Last year over 6 trillion e-mails were
transmitted. Today, almost half of those e-mails are unsolicited or
unwanted.
Commercial e-mail is good, and a necessary and valuable component of
electronic commerce. It allows legitimate businesses to customize
offers of products and services and transmit them immediately to
customers.
However, the same features that make e-mail a valuable commercial
tool also lead to its abuse by spammers. Once a portable to the global
network is obtained, sending e-mail is instantaneous and virtually
costless. There are no stamps in cyberspace, no per-message cost, not
even a post office. The costs of delivery are borne more by the
recipient and the transmission network than by the sender. The
exponential growth of spam and the advancing sophistication of efforts
to block it threaten to turn the information superhighway into a
nightmare for every info-commuter and parent.
Like other means of communication, e-mail can be used to cheat,
defraud, and deceive consumers and also has been used to distribute
computer viruses that have caused millions of dollars in economic
damages. Unscrupulous spammers have transformed electronic inboxes and
the Internet into virtual minefields strewn with lewd and pornographic
images and solicitations, imperiling a medium that can serve as a
critical learning tool for children.
I am pleased to support this version of Senate 877, which is
substantially similar to H.R. 2214 introduced by the gentleman from
North Carolina (Mr. Burr), the gentleman from Louisiana (Mr. Tauzin)
and myself earlier this year. I believe it will provide a remedial
enforcement mechanism that private, regulatory, and individual State
action cannot.
The criminal provisions contained in this legislation are central to
its purpose and to its effectiveness. In order to provide a credible
deterrent to spammers, this legislation enhances criminal penalties for
predatory spamming, and provides law enforcement personnel far more
authority to prosecute spammers whose electronic presence can shift
with a keystroke.
The bill provides significant criminal penalties for the most
egregious spammers by making it a crime to intentionally falsify the
identity of the sender or disguise the routing and source information
of e-mails. Other spammer tactics made criminal under this bill include
the hijacking protected computers to send spam from the addresses of
unsuspecting Internet users.
The House modification of S. 877 also provides for much higher
penalties and
[[Page H12193]]
more effective civil and criminal enforcement against spammers who send
unwanted sexually explicit materials. This bill even requires special
labels for this most offensive category of e-mail. The gentlewoman from
Pennsylvania (Ms. Hart) deserves special recognition for her work to
get this provision into law.
Overall, the bill provides consumers with more information and
choices to stop receiving all forms of unwanted commercial e-mail while
providing law enforcement officials and providers of Internet access
with the tools to go after spammers.
While S. 877 accomplishes these vital goals, there are some
activities that it deliberately does not reach. Specifically, the
legislation concerns only commercial and sexually explicit e-mail and
is not intended to intrude on the burgeoning use of e-mail to
communicate for political, news, personal and charitable purposes.
Moreover, this legislation, while preempting State spam specific laws
with a uniform national standard, also preserves a role for State law
enforcement officials to help combat this growing electronic menace.
The bill also allows for State laws that deal with fraud and computer
crimes to remain in effect. However, there is specific language in the
bill limiting this authority to law enforcement officials or agencies
of the State, and it is not the intent of Congress to allow outsourcing
of this truly State function to the plaintiff's bar.
The House-modified legislation also contains other necessary
amendments to the bill passed by the other body and reflects a
thoughtful, bipartisan and bicameral approach to address the growing
scourge of spam while preserving and promoting the commercial vitality
of the Internet. I urge my colleagues to support this legislation.
Mr. Speaker, I reserve the balance of my time.
Mr. MARKEY. Mr. Speaker, I yield myself 2\1/2\ minutes.
Mr. Speaker, this is a very important bill, and it would not have
been possible without the good work of the gentleman from Louisiana
(Mr. Tauzin) and his staff, David Cavicke, along with the gentleman
from Michigan (Mr. Dingell) and his staff, David Schooler and Gregg
Rothschild, working with the majority. I think we have come to an
excellent result. It builds upon the work that the gentlewoman from New
Mexico (Mrs. Wilson) and the gentleman from Texas (Mr. Green) have been
making for years in this area. I think that the public is really going
to be a beneficiary from this product this evening. I would be remiss,
of course, not to single out the gentleman from Wisconsin (Mr.
Sensenbrenner) as well and his staff for their excellent work on this
bill.
In addition to the other provisions mentioned by other Members, this
legislation now contains a modified version of the wireless spam
amendment that I had offered for inclusion. The legislation preserves
important authority of the Federal Communications Commission and FTC
where it serves consumer interests. It also requires the FCC to
initiate a rule-making for wireless spam so that no loopholes are
created, but in a way to ensure that wireless consumers have greater
protection than that accorded in the underlying bill.
As we attempt to tackle the issue of spam that is sent to our desktop
computers, we must also recognize that millions of wireless consumers
in the United States run the risk of being inundated by wireless spam.
Unsolicited wireless text messages have plagued wireless users in
Europe, South Korea and Japan over the last few years as wireless
companies in such countries have offered wireless messaging services.
In Japan alone, NTT DoCoMo estimates that its wireless network
processes some 800 million wireless spam messages a day. That is a day.
As cumbersome and annoying as spam to a desktop computer is, at least a
consumer can turn off their computer and walk away. Wireless spam is
even more intrusive because spam to wireless phones is the kind of spam
that follows you wherever you go, and according to the U.S. wireless
carriers, is already on the rise.
Mr. Speaker, I reserve the balance of my time.
Mr. TAUZIN. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I thank the gentleman from Massachusetts for thanking
the majority staff. I wish I could introduce Mr. Cavicke because he has
done such a great job on this bill, but he is not a Member.
Mr. Speaker, I yield 2 minutes to the gentlewoman from New Mexico
(Mrs. Wilson) to speak on the bill.
Mrs. WILSON of New Mexico. Mr. Speaker, 5 years ago spam was a
nuisance, and now it is a nightmare. It is interrupting people's
legitimate use of the Internet and their ability to communicate without
having a lot of junk to go through every morning.
I think today is a great victory for consumers and for parents.
Parents should not have to worry about the kinds of things coming into
their kids' inboxes. For the first time, Americans who use the Internet
and get e-mail will have the right to say take me off your list, I do
not want this in my house. That is a tremendous right to be given to
citizens in this Nation.
I am glad we have a strong bill with strong enforcement that requires
labels for sexually explicit material, and allows users to opt out
without having things that are required to be viewed in order to do so.
E-mail has been called the ``killer ap'' of the Internet, the killer
application. And now today, we are saying that the people who use it
are going to have the right to take it back and own it without an
encumbrance by spammers.
Mr. Speaker, I want to thank the gentleman from Louisiana (Mr.
Tauzin), the gentleman from Wisconsin (Mr. Sensenbrenner), the
gentleman from Texas (Mr. Green) with whom I have been working on this
issue for over 4 years, and the gentleman from Michigan (Mr. Dingell)
who has also been a wonderful leader in this effort, as well as the
gentlewoman from Pennsylvania (Ms. Hart) and the gentleman from North
Carolina (Mr. Burr) for their efforts. We have put together a good
bill, and it is a better bill because we have all worked on it
together.
Mr. MARKEY. Mr. Speaker, I yield 2 minutes to the gentleman from
Texas (Mr. Green).
Mr. GREEN of Texas. Mr. Speaker, I would like to talk about some of
the good things about this agreement that is in the bill S. 877.
Spammers who lie and deceive with false header information and
deceptive subject lines will be lawbreakers and prosecuted. After we
enact this legislation, spammers will no longer be able to harvest e-
mail addresses from Web pages across the Internet without the threat of
prosecution.
{time} 1730
Our bill cracks down on automated ``dictionary'' spam attacks, the
spam version of the auto-dialer that sends spam to every possible e-
mail combination. Most importantly for our families, and something that
the gentlewoman from New Mexico (Mrs. Wilson) experienced with her
daughter, this bill requires warning labels on sexually explicit e-
mail; and we will be able to refuse further e-mail without having to
view the offensive content. It will go after spammers again from all
angles, from the Federal Trade Commission, from the States attorneys
general and also Internet service providers who, as the gentleman from
Wisconsin (Mr. Sensenbrenner) said, 50 percent of the networks
oftentimes are unsolicited e-mail. They will be able to sue for damages
of $250 per e-mail or a total of $6 million. It is there so our
attorneys general have the ability and our ISPs will do it.
Finally, after the success of the Do-Not-Call list, the FTC is to
plan a Do-Not-Spam registry within 6 months and will implement it if it
is feasible.
Like my colleagues, our staff worked hard on it in both our
committees, Judiciary and Energy and Commerce. I thank my personal
staff, Drew Wallace, for working on this with all the folks involved.
Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman
from Virginia (Mr. Goodlatte).
Mr. GOODLATTE. Mr. Speaker, I thank the gentleman from Wisconsin,
chairman of the Committee on the Judiciary, and the gentleman from
Louisiana, chairman of the Committee on Energy and Commerce, for their
leadership in pulling these two committees together. We have been
working on this
[[Page H12194]]
for a long time. It is that kind of teamwork that has resulted in this
legislation today as well as a great deal of cooperation on the other
side of the aisle. We really appreciate what it takes to write good
legislation.
Spam is not just a nuisance anymore. Over half of the e-mail sent
today is spam. Unsolicited e-mail, such as advertisements,
solicitations, or chain letters is the junk mail of the Information
Age. At best these unwanted messages burden consumers by slowing down
their e-mail connections. At worst these messages bombard American
families with unsolicited, sexually explicit materials and fraudulent
information. It is time to can spam.
The bill before us makes it a criminal offense to send a commercial
e-mail that falsifies the sender's identity. In addition, the House
amendments which have been incorporated into this bill strengthen the
provisions that punish spammers for failing to place warning labels on
sexually explicit materials.
This bill makes the necessary changes to the Senate's ``can spam
act'' to establish clear, uniform guidelines for those who send
commercial e-mail and to criminalize fraudulent conduct. The bill
provides State attorneys general, ISPs, the FTC, and the Department of
Justice with the appropriate tools to enforce the bill against bad
actors.
Because no legislation can provide a cure-all for spam, this bill is
technology-friendly. It protects the ability of ISPs and small
businesses to develop innovative technological solutions to combat spam
and to protect consumers, such as filtering and blocking technologies.
This bill establishes clear guidelines for legitimate businesses and
punishes fraudulent conduct, not going after the good guys. It
accomplishes these objectives without overregulating and without taking
the information out of the Information Age.
I urge my colleagues to support this important legislation.
Mr. MARKEY. Mr. Speaker, I yield 5 minutes to the gentleman from
Michigan (Mr. Dingell), the ranking Democrat on the Committee on Energy
and Commerce.
(Mr. Dingell asked and was given permission to revise and extend his
remarks.)
Mr. DINGELL. Mr. Speaker, we can work well together around here. I am
sure that a lot of people are surprised.
I want to pay a congratulations and compliment to my distinguished
friend, the gentleman from Louisiana (Mr. Tauzin), the chairman of the
committee, and also to the distinguished gentleman from Wisconsin (Mr.
Sensenbrenner) for his labors. I want to thank my good friend, the
gentleman from Massachusetts (Mr. Markey), for his leadership in this
valiant effort and undertaking, and I want to pay particular tribute to
both the distinguished gentleman from Texas (Mr. Green) and the
wonderful gentlewoman from New Mexico (Mrs. Wilson) for their
outstanding leadership, for the courage and for the dedication with
which they stood hitched on this difficult issue and these difficult
negotiations. Congratulations to all of the above. And also to Mr.
Gregg Rothschild, Mr. David Cavicke, Mr. Bryce Dustman, and Peter Filon
of the staff; also David Schooler and Shannon Vildostegui for their
wonderful work as members of the staff because their efforts have
helped make this possible.
This is a good bill and it is worthy of our support. There are things
that we could have done that would have been a little better, but it is
a piece of legislation which is going to solve a concern of the
American people, something which is good and is in the public interest.
And it is an important first step in restoring consumers' control over
their inboxes and stopping some of the evil and rascality that we are
seeing in the telecommunications industry. It requires marketers to let
people know who they are and where they can be located. It prohibits
false and misleading transmission information so that marketers cannot
hide their identity. It prohibits marketers from deceiving consumers by
using false headers or subject lines. Importantly, it affords the
Federal Trade Commission and the States full enforcement authority over
these consumer protection provisions.
I am particularly pleased that the bill permits law enforcement to go
after those who disguise sexual messages and through such deception are
able to send sexual material into our homes and into the hands of our
children. This is a critical first step against those who profit by
sending unwanted and offensive sexual commercial messages. It will stop
much wrongdoing.
I am also pleased that the House has adopted the Senate provision
creating a do-not-spam registry. I expect the FTC to take their charge
seriously under this provision and to do all that is necessary to
implement such a registry at the earliest possible time.
Finally, I am pleased that the House has added a new provision to
grant even stronger protections from spam to users of wireless cell
phones. The gentleman from Massachusetts deserves the thanks of all of
us for that. In connection with this provision, I commend the hard work
of our dear friend, the ranking Democrat on the Subcommittee on
Telecommunications and the Internet.
Mr. Speaker, I want to be clear that I do not expect this bill to
solve totally the growing problem of unwanted spam. It must be
recognized that the people who engage in this practice are most
diligent, most able, and have a huge financial incentive to do it. It
is quite possible that we will have to visit the matter again. It is
regrettable that it does not contain an important deterrence against
spam, citizen suits; but we can address that at a future time. It also
has the regrettable practice in it of preempting stronger State laws,
something which I do not favor. It is, however, a distinct improvement
over the Senate-passed bill, and the hard work that has brought us to
agreement on the part of those who have worked on it is something which
merits the thanks of the public for work in the public interest.
I plan to work to try and expand this in future times and to do the
things that are necessary to assure that our people are not abused by
these people.
Mr. TAUZIN. Mr. Speaker, I thank the distinguished gentleman from
Michigan for his statement and his kind friendship.
Mr. Speaker, I yield 2 minutes to the distinguished gentleman from
Michigan (Mr. Upton), chairman of the Subcommittee on
Telecommunications and the Internet.
(Mr. Upton asked and was given permission to revise and extend his
remarks.)
Mr. UPTON. Mr. Speaker, today on the heels of our recent efforts to
ensure that the do-not-call list was implemented, we are taking yet
another major step forward in our efforts to protect consumers from
unwanted commercial solicitations. With passage of this bill tonight,
we are one more step closer to giving American consumers a Federal law
which will for the first time allow them to just say no to unwanted
commercial e-mails, otherwise known as spam. And we back it up with
strong enforcement by the FTC, State attorneys general, and Internet
service providers as well.
As the father of two young kids, I am particularly pleased that this
bill requires warning labels on commercial e-mails which contain
sexually oriented material, and it protects our kids from being
unwittingly exposed to such garbage that might pop up in the family's
inbox. As chairman of the Subcommittee on Telecommunications and the
Internet, I am particularly pleased to have worked with my colleagues
on this, particularly the gentleman from Massachusetts (Mr. Markey);
the gentleman from Michigan (Mr. Dingell); certainly the gentleman from
North Carolina (Mr. Burr); and my chairman, the gentleman from
Louisiana (Mr. Tauzin), on provisions which direct the Federal
Communications Commission to implement added protections against spam
for cell phones and other wireless devices. What a nightmare ready to
happen. On our staff I want to particularly thank Will Nordwind, who
spent countless hours as we negotiated this the last number of months.
Mr. Speaker, I want to relate a small family story. When my dad came
back from World War II, my mom fixed his first dinner. It was Spam. Dad
said, no way. Battle of the Bulge, we had enough of that. No more are
we going to have that junk. My family thankfully was spared that for 50
years. Sadly, American consumers have not been spared from that awful
stuff called spam because this is spam on the Internet.
[[Page H12195]]
I can remember when e-mails came first off, everyone loved to get an
e-mail. I thought we were finally making some headway. But lo and
behold, my wife was out of town, and I did not realize she was deleting
it. Every morning she would get up at 5:30 or 6 in the morning. She has
been gone all week. Today just from last night, I had 150 spams.
Pass this bill. End this stuff. I cannot call it what I really think.
God bless America.
Mr. MARKEY. Mr. Speaker, I yield 1 additional minute to the gentleman
from Texas (Mr. Green).
Mr. GREEN of Texas. Mr. Speaker, I know we are getting down to the
last few minutes, but, like my colleague from Michigan, I ate a lot of
Spam. I am holding up my gift of Spam from my cosponsor. Like him, the
only way I could ever survive Spam was with A-1 steak sauce. I remember
the story that my first time, somebody showing up at a town hall
meeting and saying, I'm tired of spam and I said, thank goodness I
haven't had to eat it in years. But I do remember it tasted pretty good
in college when I needed it.
But now as my colleague from Michigan said, spam will not have a bad
name for people who use the Internet. Again, I would like to thank the
gentlewoman from New Mexico (Mrs. Wilson) for providing me a can of
Spam. I am not going to cook it. I am going to put it on the wall so
hopefully I will not have to.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, after hearing about that stuff that the gentleman from
Texas was waving around, let me say that we Yankees knew that Spam was
bad 50 years ago. It has taken a long time for you rebels to do that.
Mr. Speaker, I yield 1 minute to the gentlewoman from Pennsylvania
(Ms. Hart).
Ms. HART. Mr. Speaker, I also thank the gentleman from Wisconsin (Mr.
Sensenbrenner), the gentleman from Louisiana (Mr. Tauzin), the
gentleman from Michigan (Mr. Dingell), and the general public, really,
for helping us move this bill forward. I am pleased we were able to
work out a deal on this legislation. It has taken some time, but the
product is well worth it. The American public has been flooded with
millions of pieces of unsolicited e-mail every day. This legislation
will help us provide the teeth in the law to stop this. But it is the
content of certain e-mails, particularly e-mails containing sexually
explicit material which is especially problematic.
I compliment the gentlewoman from New Mexico (Mrs. Wilson) for
working together with us on language that is similar to the
Pennsylvania law that I sponsored to help label and help us rid our
computers of these sexually explicit e-mails. I am pleased this was put
into the bill. We want our children to use the Internet and e-mail, but
many parents fear what the children may see. Parents are stuck in the
middle. They want their kids to use the educational tool of the
Internet, they want them to be very capable of utilizing it, and it
will help them in their schoolwork on one hand, but on the other when
my Senator was sitting behind one of his children, in fact, he said to
me, I could not believe what came up on the screen.
It is important for us to make sure that we control it but we allow
freedom of speech. I compliment my colleagues. I look forward to a
spam-free e-mail.
Mr. MARKEY. Mr. Speaker, I yield myself 2 minutes.
The reality is that this whole movement began as people several years
ago saw what the impact would be of unwanted spam on their home or work
computers. As the gentleman from Michigan (Mr. Upton) pointed out, he
had in one day 150 unwanted spam messages on his home computer. What
this legislation does is to help every American to deal with that
problem. What I ask the Members to do as well is to deal with another
issue that quite likely is going to rise to a level of being a problem
that eclipses even computer spam and that would be cell phone spam.
Imagine if you reach a point where there are 150 unwanted rings on
your phone, your cell phone, this zone of privacy which we all have as
these marketers are calling into your cell phone all day long. What
this legislation does is it ensures that the Federal Communications
Commission and the Federal Trade Commission take the actions which give
protections against this being the new battleground. It is already a
full scale epidemic in Europe, in Japan, in South Korea.
{time} 1745
It is heading our way. Probably by the time the FCC has a chance to
put the regulations on the books, maybe a year from now, we will have
already seen its growth so those protections against these cell phones
just ringing all day long becomes the epidemic that really just drives
people crazy. So the bill will require the FCC to consider certain
provisions with an eye towards assessing the problems and perhaps the
unique capabilities or limitations of wireless devices. We have to be
sure that wireless consumers and carriers can functionally implement
the new legal requirements. But the Federal spam legislation ought to
reflect the particular characteristics of the wireless technology and
use this bill as a way to ensure that we have promulgated rules
requiring a consumer opt-in for wireless e-mail messages so that the
consumer has affirmatively said that they want these messages to come
into their life. Otherwise, this device that is so valuable now to 170
million Americans would just be the single greatest nuisance ever
invested.
Mr Speaker. I rise in support of the compromise spam legislation that
we bring to the House Floor today.
Mr. Speaker, this legislation reflects a series of agreements between
advocates for the two alternative House spam bills--one offered by
Chairman Tauzin, and the other offered by Ms. Wilson and Mr. Green of
which I am an original cosponsor, as well as a series of compromises
with our Senate counterparts. While not a perfect bill, I believe it
merits support.
In addition, Mr. Speaker, this legislation now contains a modified
version of the wireless spam amendment that I had offered for
inclusion. The legislation preserves important authority of the FCC and
FTC where it serves consumer interests. It also requires the FCC to
initiate a rulemaking for wireless spam so that no loopholes are
created but in a way to ensure that wireless consumers have greater
protection than that accorded in the underlying bill.
As we attempt to tackle the issue of spam that is sent to our desktop
computers, we must also recognize the millions of wireless consumers in
the United States run the risk of being inundated with wireless spam.
Unsolicited wireless text messages have plagued wireless users in
Europe, South Korea, and Japan over the last few years as wireless
companies in such countries have offered wireless messaging services.
In Japan alone, NTT DoCoMo estimates that its wireless network
processes some 800 million wireless spam messages a day. As cumbersome
and annoying as spam to a desktop computer is, at least a consumer can
turn off their computer and walk away. Wireless spam is even more
intrusive because spam to wireless phones is the kind of spam that
follows you wherever you go and according to U.S. wireless carriers, is
already on the rise.
To prevent wireless spam from overwhelming the American wireless
marketplace as it has networks in other countries, this legislation
tasks the FCC to promulgate rules in order to put strong consumer
protections on the books. In addition, the bill requires the FCC to
consider certain provisions with an eye toward assessing them given the
perhaps unique capabilities or limitations of wireless devices. We must
be sure that wireless consumers and carriers can functionally implement
the legal requirements. Federal spam legislation ought to reflect the
particular characteristics of wireless technology and use and this bill
will allow the FCC to promulgate rules requiring a consumer ``opt-in''
for wireless email messages while examining the nature of a consumer's
relationship with their wireless phone and service to take into account
the unique service and technical characteristics that may warrant
wireless-specific rules affecting consumer and carrier rights and
obligations.
The wireless spam provision of the bill offers wireless consumers
relief by requiring an ``opt-in'' for spam to wireless consumers. This
reflects the fact that spam to a mobile phone is more intrusive to
consumers and the fact that some wireless payment plans currently
charge users for the amount of text messages they receive.
The provision would require ``express prior authorization'' from the
consumer before an entity could send spam to their wireless device. My
intent is that this ``express prior authorization'' be implemented in a
way that a
[[Page H12196]]
request for ``express prior authorization'' is conspicuous and easily
understood by consumers and that each entity seeking to send mobile
service commercial messages pursuant to Section 14(b)(1) obtain such
consumer authorization. In addition, the wireless spam provision
requests that the FCC consider the ability of an initiator of spam to
reasonably determine whether an electronic mail message is a mobile
service commercial message. Obviously, as wireless service evolves,
more and more consumers will receive Internet emails via their
commercial mobile service provider's network and directly to their
wireless device. If a person ha an email address from their commercial
mobile service provide and it can be readily identified as a wireless
address, such as [email protected] or [email protected] then the
reasonable ability of a potential spammer to recognize that as such is
relatively easy. Hopefully, commercial mobile service providers--and
consumers--will see the benefit of having an email address that can be
reasonably determined to be a wireless address, so that the prospect of
massive amounts of spam to consumers over wireless networks can be
thwarted and consumers can enjoy the benefits of entities needing their
express prior authorization before sending them wireless spam.
Spam sent to desktop computer email address, and which is then
forwarded over a wireless network to a wireless devices, i.e.,
delivered ``indirectly'' from the initiator to the wireless device,
would be treated by the rest of this bill and not by the wireless
specific provisions we subject to an FCC rulemaking.
This legislation also represents an improvement in other areas over
the Senate-passed bill. For example, the compromise doubles the damage
caps in the Senate bill. It also eliminates the knowledge standards for
the Federal Communications Commission (FCC), the Federal Trade
Commission (FTC) and state Attorney General injunctive relief. The bill
provides for rulemaking authority to clarify and tighten the definition
of what constitutes a ``commercial email.'' Requires that identifiers
and a postal address musts be on all commercial emails to desktop
computers. Finally, the bill also shortens the time frame from which an
``opt-out'' request would become enforceable.
All of these represent important improvements over the Senate bill.
I want to commend Chairman Tauzin, Ranking Member Mr. Dingell for
their excellent work in this area. I want to salute Representatives
Heather Wilson and Gene Green for spearheading House spam efforts in
this session as well as in the previous Congress as the lead sponsors
of the House bill.
Mr. Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I have no further requests for time
from Committee on the Judiciary, and I yield the balance of my time to
the gentleman from North Carolina (Mr. Burr).
Mr. BURR. Mr. Speaker, I ask unanimous consent to control the time of
the gentleman from Louisiana (Mr. Tauzin) as well as the time of the
gentleman from Wisconsin (Mr. Sensenbrenner).
The SPEAKER pro tempore (Mr. Thornberry). Is there objection to the
request of the gentleman from North Carolina (Mr. Burr)?
There was no objection.
The SPEAKER pro tempore. The gentleman from North Carolina (Mr. Burr)
has 5 minutes remaining, and the gentleman from Massachusetts (Mr.
Markey) has 6 minutes remaining.
Mr. BURR. Mr. Speaker, I yield myself 2 minutes. Mr. Speaker, we are
here today to get rid of unwanted sexually explicit e-mail, but we are
also here to protect those individuals who want to use e-mail as a
commercial tool in a responsible way based upon the rules, and the
challenge for us was to design something that allowed commerce to take
place but that got at the heart of what all of us wanted to do, and
that is to get the smut off of our screen, to make sure that the ones
that were unsolicited and that we did not want to see again, that we
had the opportunity to get rid of them. And I am going to tell the
Members it was tough, I think we would all agree, trying to find the
right language, the right word in some cases, to make sure that the
right penalty was in place but it did not go too far. And I think it is
safe to say today that there is no single piece of legislation that
will ultimately solve the spam problem.
It is my hope that this bill is an excellent first start. I believe
that it is appropriate to praise the gentleman from Louisiana (Chairman
Tauzin) and the gentleman from Michigan (Mr. Dingell), ranking member,
and Gregg Rothschild and David Cavicke and many other committee staff
and personal staffs that worked tirelessly to try to come up with a
solution to the problem that we had. The FTC's own estimates estimate
that 20 percent of all spam contains advertising of pornography. That
is not counting the spam that we received that has deceptive content
and fraudulent content.
Mr. Speaker, we are here today because we think we found the right
blueprint. We think those businesses that are reputable can continue,
and they can live within the framework, and they can live by the rules,
and, hopefully, this will help to chase those that intended not to live
by the rules out of the system and off our screen.
I want to praise once again both committees, the Committee on the
Judiciary and the Committee on Energy and Commerce, the staffs and the
members, and urge support for this bill.
Mr. MARKEY. Mr. Speaker, I yield 1 minute to the gentleman from
Michigan (Mr. Dingell).
Mr. DINGELL. Mr. Speaker, I thank the distinguished gentleman from
Massachusetts for yielding me this time.
And I just want the attention of the gentleman from North Carolina
(Mr. Burr). I want to pay tribute to him for the very honorable and
splendid way in which he has worked with us to bring this matter to
conclusion. Without his labors and those of the gentleman from
Louisiana (Mr. Tauzin), chairman of the Committee on Energy and
Commerce, we would not be here talking about this matter. And I thank
both gentlemen, and I thank also Jonathan Cordone.
Mr. MARKEY. Mr. Speaker, I yield myself such time as I may consume.
And I yield myself that time in order to conclude the debate for the
Democratic side, and I would like to point out how important this bill
is.
Congress many times acts in areas where most Americans say ``How does
that affect me?'' This legislation will now affect every computer in
the United States in the way in which it affects the user of that
computer, and it will affect every user of a cell phone in the way that
that cell phone is used or, to be more explicit, the way in which
marketers abuse those phones and computers. So this is a great day, and
the gentlewoman from New Mexico (Mrs. Wilson) and the gentleman from
Texas (Mr. Green) did a great job in bringing it to our attention, and
the gentleman from Louisiana (Chairman Tauzin) and the gentleman from
Michigan (Mr. Dingell), in putting together an environment in which we
can negotiate this bill out in a bipartisan fashion.
The litany of saints is long, and I mentioned many of them earlier. I
would like to add the gentleman from Michigan (Mr. Conyers), the
ranking member of the Committee on the Judiciary. He and his staff
contributed significantly to this legislation. To the gentleman from
North Carolina (Mr. Burr), I want to congratulate him and his excellent
work on this legislation. The consumers will be the beneficiary. I want
to mention the gentlewoman from Silicon Valley, California (Ms. Eshoo)
for all of her wonderful work on this legislation. The gentleman from
New Jersey (Mr. Holt), who had a deep interest in the wireless aspects
of this legislation, I think he deserves credit for what is happening
here today. The gentleman from Louisiana (Chairman Tauzin), David
Cavicke did a great job, and I think I should mention Howard Waltzman
as well on the chairman's staff for his excellent work; on the
gentleman from Michigan's (Mr. Upton) staff, Will Nordwind, who has
been working on this for several months, as well with the chairman. And
I would conclude by thanking my own staff, Colin Crowell, who
throughout this year had a plan to include a wireless cell phone
antispam provision in the legislation, and today we see the fruition of
all of his excellent work, and I think that consumers will be the
beneficiary for the generation ahead. So I conclude by complimenting
the chairman.
Mr. Speaker, I yield back the balance of my time.
Mr. TAUZIN. Mr. Speaker, I yield myself such time as I may consume.
In concluding, let me, first of all, again signal the extraordinary
cooperation that exists between the Committee on the Judiciary and the
Committee on Energy and Commerce as we conclude this debate and also to
echo
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thanks and congratulations the gentleman from Massachusetts (Mr.
Markey) has extended to so many of our staff and the members who have
worked on this.
This is a consumer protection piece of legislation. Very often when
we come to these consumer protection-type pieces of legislation, we
will see this extraordinary bipartisanism and this ability of
committees that often have conflicting versions of bills work them out
as we have today. This is a huge consumer protection piece of
legislation.
And I want to say something that I hope all the Federal judges of
America will pay attention to tonight very carefully. This legislation
specifically authorizes the Federal Trade Commission to create a Do Not
Spam Registry. No one should have any doubt about it. It is as clear,
it is explicit. When this legislation passes the Congress and is signed
into law, the FTC will explicitly have that authority, and a Do Not
Spam Registry will be available in our future.
I want to particularly thank the gentlewoman from New Mexico (Mrs.
Wilson), the gentleman from North Carolina (Mr. Burr), the gentleman
from Texas (Mr. Green). Of all the members who have put in yeoman hours
in time and effort, these three members of our committee have done an
extraordinary job. And I particularly, again, want to single out the
gentleman from Michigan (Mr. Dingell) and the gentleman from
Massachusetts (Mr. Markey) with, again, the bipartisan spirit in which
we worked together when we can and do work together so well. This is a
good example where America will benefit because we are legislating as
Americans and not as party members as we often do on this floor. And I
want to thank the gentleman, again, for that respect and that spirit of
cooperation that he always extended to the chair and to the management
of our committee affairs.
Again, Mr. Speaker, this is an important day for consumers in
America. Very soon a Do Not Spam Registry will be available to them.
They will be able to call and have their names put on that registry.
People who refuse to pay attention to that registry and spam them
regardless will be subject to severe penalties. People who fraudulently
continue to spam without identifying who they are, when they are
caught, will pay a big price. Attorney Generals and the FTC are given
enforcement authority under this compromise, and I think we are
affording Americans with a brand new tool to protect themselves against
the entry of material they do not want in their homes whether it comes
in through the computer, through the telephone, or via the mail. This
is a great step forward, and I urge adoption of this bill.
Ms. ESHOO. Mr. Speaker, I support the conference report and thank the
chairman and ranking member for their work in this effort. I'm
particularly pleased that the serious shortcomings of the bill which
I've raised at our committee have been addressed.
The problem of spam has become so prolific that by the end of this
year half of all e-mails sent will be spam.
The numbers are staggering: 76 billion spam e-mails will be delivered
in 2003; 50 percent of kids have received e-mails containing
pornographic or sexually explicit information; and U.S. businesses will
spend close to $10 billion to fight spam this year.
And marketers have brazenly claimed that the success of the ``Do Not
Call List'' will drive them to spam even more, costing U.S. businesses
and consumers even more.
I sponsored legislation to curb the epidemic of spam and crafted the
original proposal to empower the FTC to replicate the enormous success
of the ``Do Not Call List'' by creating a ``Cannot Spam List.'' I'm
very pleased that a version of this measure has been included in the
conference report, which I hope the FTC will implement soon after
enactment of this bill.
I'm also pleased that the conference report strengthens some of the
weaknesses of the Senate bill, especially by giving greater authority
to states to enforce these laws.
This legislation does not end the entire problem of spam. I'll
continue to fight for measures to prevent unauthorized and unwanted e-
mail from flooding our inboxes and our computer networks. But this is a
good start and important and I urge my colleagues to support it.
Mr. HOLT. Mr. Speaker, I rise in support of the anti-spam legislation
before us, S. 877.
I am glad to see that Congress has finally taken definitive action on
this issue. During my first term in Congress, I worked with my
colleagues Gene Green and Heather Wilson, who have shown great
leadership here, on anti-spam legislation that passed the House in
2000.
Today we have before us legislation to help address the mounting
problem of unsolicited e-mail advertising, or spam, which has become
perhaps the biggest nuisance of the Information Age and a drain on our
economy.
I am particularly pleased that this legislation includes a provision
intended to combat a related problem that has gotten out of hand in
some countries and is growing ever worse in the United States--spam
sent to wireless phones through text messaging.
As many of my colleagues know, I introduced legislation intended to
draw attention to this issue--the Wireless Telephone Spam Protection
Act. This bill was intended to launch what could be called a preemptive
attack against wireless spam before it spins out of control in the
United States. Congress too often acts once the fire is already lit.
This time, we can put the fire out before it gets out of control.
The Japanese are already fighting off a tsunami of cell phone spam.
On one recent day, the 38 million customers of the largest Japanese
wireless company, NTT DoCoMo, received 150 million pieces of spam. Even
today, after passage of anti-spam laws in Japan, DoCoMo's subscribers
still receive up to 30 million wireless spam messages each day. This
has caused millions of Japanese wireless phone users to simply stop
using their cell phone service.
So far, U.S. cell phone users have been largely sparred this torrent
of annoying, unwanted messages. I presume this is because a lot of
telemarketers don't believe there are enough text-capable cell phones
in the country. Most new phones are text capably, however, and the
number of text messages sent in this country has been rising rapidly,
quadrupling from 250 million messages sent in December 2001 to 1
billion messages sent in December 2002. Seventeen percent of cellular
customers, about 23 million people, currently use text messaging--
including 45 percent of cell phone users in the lucrative 18-to-25-
year-old category. Direct marketers are already beginning to salivate.
That is why I am glad to see that this legislation includes a
provision instructing the Federal Trade Commission to promulgate an
opt-in rule for wireless spam. I would like to thank Mr. Markey for his
work on this issue, and I would like to salute all of those who put
this legislation together. It is by no means cure-all, but it is
certainly a good first step towards ending the onslaught of e-mail spam
and the tsunami of wireless spam. I urge my colleagues to support this
bill.
Mr. STUPAK. Mr. Speaker, for several Congresses now we have had
hearings and markups in the Energy and Commerce Committee on the
nuisance of spam, but no progress has been made. I am pleased that a
bill has finally come forward that looks headed for passage into law.
Through all this time, the flood of unsolicited e-mails has only
grown, ISPs have become more and more overwhelmed, and consumers more
aggravated.
I know that this bill will come as a welcome relief to many who are
fed up with opening their e-mail accounts only have to unwanted
commercial e-mails clogging up their Internet mailboxes.
Consumers have to waste time deleting numerous spam emails, and even
worse, if they do unsuspectingly open one of these e-mails, they are
often faced with offensive pornography.
I commend the members of the Judiciary and Energy and Commerce
Committees for their ongoing efforts to address this problem, and I am
pleased to support this bill.
I do believe that the bill falls short in one area, in that it does
not provide a private right of action for individual consumers to seek
their own remedies. But this legislation does much to strengthen
enforcement, provide protection from harmful pornographic e-mails, and
to set up a Do Not Spam Registry, which I can only guess will be as
popular as the Do Not Call Registry.
I hope that this bill will put control over Internet mailboxes back
in the hands of consumers, so that they can choose to receive e-mails
that they want, and to get rid of e-mails that they do not.
And to those businesses and individuals that violate these provisions
and send out spam illegally, this bill will provide the Federal Trade
Commission, state attorney generals, and Internet Service Providers
with the tools to crack down on these violators.
As the House attempts to wrap up its work for the session, there have
been several bills coming to the floor that I do not believe have
merit. This bill, however, shows that when we want to, Congress can
truly act for the public benefit.
Mr. STEARNS. Mr. Speaker, I am pleased to join Chairman Tauzin,
Chairman Sensenbrenner, Messrs. Dingell and Burr, and
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Mrs. Wilson in supporting a good consumer protection bill that I hope
will help us, as consumers, fight the scourge that is spam.
No one disputes the great utility of e-mail, the fact that it has
brought great efficiency and productivity gains, not only to our
professional lives but also our personal lives. Nonetheless, our daily
routine of scouring through and reviewing our e-mail also tells us that
e-mail as a critical communications medium is under assault from
unwanted e-mail--most peddling goods or services ranging from the real
to the absurd. I do not have a problem with e-marketing per se, after
all, our consumer based economy is highly dependent on marketing.
However, e-mail communications make accountability more difficult.
Therefore, unscrupulous people use it to advance fraudulent and
deceptive acts and even good commercial actors are tempted to take
advantage of this lack of accountability.
Effective and narrowly tailored legislation, like the one before us
today, can help bring greater accountability to e-mail solicitations.
That greater accountability is achieved by making sure that fraud and
deception is prosecuted and subjected to severe penalties.
Legislation is only part of the solution, and in my view a smaller
part. Rather, technology, consumer education, and industry cooperation,
in my view, are the key tools in combating spam and injecting real and
effective accountability. Finally, combating spam requires
international cooperation. I think my bi-partisan bill, H.R. 3143,
which strengthens the Federal Trade Commission's ability to address the
growing problem of transnational fraud, will go a long way in fighting
spam that is not home grown.
Mr. TAUZIN. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Louisiana (Mr. Tauzin) that the House suspend the rules
and pass the Senate bill, S. 877, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds of
those present have voted in the affirmative.
Mr. TAUZIN. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this motion will be
postponed.
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