[Congressional Record Volume 149, Number 175 (Monday, December 8, 2003)]
[House]
[Pages H12854-H12861]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CONTROLLING THE ASSAULT OF NON-SOLICITED PORNOGRAPHY AND MARKET ACT OF
2003
Mr. TAUZIN. Mr. Speaker, I ask unanimous consent to take from the
Speaker's table 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, with a Senate
amendment to the House amendment thereto, and concur in the Senate
amendment to the House amendment.
The Clerk read the title of the Senate bill.
The Clerk read the Senate amendment to the House amendment, as
follows:
Senate amendment to House amendment:
In lieu of the matter proposed to be inserted by the House amendment to
the text of the bill, insert:
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 messages'
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.
[[Page H12855]]
(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
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 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 one 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 one 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'', when used with respect to a commercial
electronic mail message, means a person who initiates such a
message and whose product, service, or Internet web site is
advertised or promoted by the message.
(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 throughout the message 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 five or
more electronic mail accounts or online user accounts or two
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,
[[Page H12856]]
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 one 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 falsified 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 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 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
[[Page H12857]]
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.
(B) Subsequent affirmative consent.--A prohibition in
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 message if the recipient has
given prior affirmative consent to receipt of the message.
(6) Materially.--For purposes of paragraph (1), the term
``materially'', when used with respect to false or misleading
header information, includes the alteration or concealment of
header information 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 a 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.
(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 regulation, 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.
(5) 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 the 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.--Except as provided in section
7(f)(8), 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;
[[Page H12858]]
(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 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 (a), (b), (c), or (d) of this section
to enforce compliance, through an order to cease and desist
or an injunction, with section 5(a)(1)(C), section 5(a)(2),
clause (ii), (iii), or (iv) of section 5(a)(4)(A), section
5(b)(1)(A), or section 5(b)(3), 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), who
violates section 5(d), 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 (3).
(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 required to allege or prove the state of mind required
by section 5(a)(1)(C), section 5(a)(2), clause (ii), (iii),
or (iv) of section 5(a)(4)(A), section 5(b)(1)(A), or section
5(b)(3).
(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
designed to effectively prevent such violations; or
(ii) the violation occurred despite commercially reasonable
efforts to maintain compliance the practices and procedures
to which reference is made in clause (i).
(4) Attorney fees.--In the case of any successful action
under paragraph (1), the court, in its discretion, may award
the costs of the action and reasonable attorney fees to the
State.
(5) 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.
(6) 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.
(7) 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.
(8) 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.
(9) Requisite scienter for certain civil actions.--Except
as provided in section 5(a)(1)(C), section 5(a)(2), clause
(ii), (iii), or (iv) of section 5(a)(4)(A), section
5(b)(1)(A), or section 5(b)(3), 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)(1),
5(b), or 5(d), or a pattern or practice that violates
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
knowledge, 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) up to $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--
[[Page H12859]]
(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
designed to effectively prevent such violations; or
(ii) the violation occurred despite commercially reasonable
efforts to maintain compliance with the practices and
procedures to which reference is made in clause (i).
(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 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).
(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 Federal
Communications Commission, in promulgating 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 to the sender, 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 sender;
(3) take into consideration, in determining whether to
subject providers of commercial mobile 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 from the provider--
(A) at the time of subscribing to such service; and
(B) in any billing mechanism; and
(4) determine how a sender 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 a sender of a
commercial electronic mail message to reasonably determine
that the 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 is transmitted
directly to a wireless device that 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.
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.
Mr. TAUZIN (during the reading). Mr. Speaker, I ask unanimous consent
that the Senate amendment to the House amendment be considered as read
and printed in the Record.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Louisiana?
There was no objection.
Mr. SENSENBRENNER. Mr. Speaker, I rise in support of the bill S. 877,
as returned by the
[[Page H12860]]
Senate with technical changes. I urge my colleagues to pass once more
and send it on to the President.
The House of Representatives passed this legislation previously on
November 21, 2003. The changes made herein to the language are not
substantive departures from what previously passed the House, but are
merely necessary to correct minor errors in the drafting to accurately
reflect the will of Congress.
Taking the final legislative step today necessary to put into law a
unified federal approach to the problem of unsolicited commercial email
or ``spam'' represents an important moment in protecting children and
the ``in-boxes'' of millions of Americans.
The bill provides consumers with more information and choices to stop
receiving all forms of unwanted commercial email and provides federal
and state officials and providers on Internet access with the tools to
go after spammers. As I noted previously, the criminal provisions
contained in this legislation are central to its purpose. In order to
provide a credible deterrent against spamming, this legislation
establishes enhanced criminal penalties for predatory spamming and
provides law enforcement personnel far more authority to prosecute
spammers whose electronic presence can shift with a keystroke.
I believe this legislation will take a bite out of spam and spammers,
and it will have some effect in reducing the type and amount of spam
that online users deal with today. However, it is not a panacea. In the
midst of speaking about the positive things that S. 877 does, it is
important to put all concerned on notice that no legislation, no matter
how severe, can stop spam entirely. The most hard core group of
problematic spammers already operate sometimes in defiance of multiple
laws and it will take time and effort to track down even those within
the reach of U.S. jurisdiction. Furthermore, policy makers should be
wary of any ``soundbite'' legislative or regulatory approach to this
problem that promises to end all spam--because such an approach would
surely have drastic consequences for free speech and the legitimate
forms of e-mail that consumers want and use.
Consumers and their Internet service providers can do far more to
protect the nation's inboxes from unsolicited e-mail than any law that
can be passed here or in state capitals. Already, consumers who take
full advantage of existing firewalls, blocking software, and
``challenge/response'' protocols enjoy a dramatically reduced amount of
spam--and many of these options are free or included in the package of
services offered by their Internet access provider.
Ultimately, spam will be stopped by a combination of new technology,
consumer awareness, ISP filtering, and trusted sender systems for
legitimate senders of commercial e-mail--with laws and regulation
merely setting the outer boundaries of illegitimate e-mail practices.
In the interim, this legislation will help fill the gap. I encourage
those plagued by unwanted e-mail today to take advantage of the
practices and technologies that are proven to reduce spam as well as
the remedies provided under this law and others.
Mr. Speaker, I am pleased that the House today is sending the final
version of this important anti-fraud and consumer protection measure on
to the President, and the President has indicated he will sign the
bill. I urge my colleagues to support the legislation.
Mr. MARKEY. Mr. Speaker, I rise in support of S. 877, spam
legislation that we bring to the House Floor today in a final version
that incorporates technical and other changes since the House sent to
the Senate a compromise bill on November 21.
Mr. Speaker, as I noted in remarks back in November, 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.
Mr. Speaker, this legislation now contains the Markey amendment on
wireless spam, which originated in the House amendments to the Senate-
passed bill. The reason I offered this amendment for inclusion in the
House-passed bill is that I wanted wireless consumers to have greater
protection than that which was accorded in the version of S. 877 which
the Senate passed previously.
Indeed, during the summer the Energy and Commerce Committee held a
hearing on spam at which I raised the prospect of wireless spam and the
likelihood that it was a problem wireless consumers were beginning to
see. At that time, neither the Tauzin-Burr spam bill, nor the Wilson-
Green spam bill, continued wireless specific provisions to address this
issue head-on.
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.
According to published reports that came to our attention as we were
deliberating upon the spam issue, NTT DoCoMo estimated 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.
For this reason, in order to safeguard consumer privacy in a way that
reflects the more intrusive nature of wireless spam to the user than
spam is to a desktop computer, which is immobile and for which the user
may pay some type of ``per message'' fee, the bill tasks the FCC with
tackling this issue now, before it overwhelms users and network
operators alike. The same type of rules that are applicable to
commercial e-mail messages sent to personal computers will clearly also
apply to those sent to wireless devices, including mobile phones, and
the general provisions of the bill would apply to wireless messages as
they would to similar messages sent to a desktop computer. Section 14
of the bill builds upon this legislative foundation and puts in place
additional protections and modifications. It requires an FCC rulemaking
to assess and put in place additional consumer protections. The bill
doesn't needlessly or unduly burden wireline network operators--and
wireless carriers should not see such burdens implemented as part of
Section 14 to the extent to which they are acting as carriers. Of
course, these same wireless carriers may also be senders of spam
themselves, and the bill spells out how such messages should be dealt
with and includes the FCC proceeding in Section 14 to address issues
particular to wireless services.
Again, Mr. Speaker, 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 certain wireless e-mail messages. In addition, this proceeding
permits the FCC to examine the nature of a consumer's relationship with
their wireless phone and service to take into account the potentially
unique technical characteristics which may warrant wireless-specific
rules.
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 e-mails via their commercial mobile
service provider's network and directly to their wireless device. If a
person has an e-mail address from their commercial mobile service
provider 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 e-mail 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 a desktop computer e-mail address, and which is then
forwarded over a wireless network to a wireless device, i.e., delivered
``indirectly'' from the initiator to the wireless device, would be
treated by the rest of this bill and not by the additional Section 14
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 e-mail.'' Requires that identifiers
and a postal address must be on all commercial e-mails 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 and Ranking Member 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.
I yield back the balance of my time.
The SPEAKER pro tempore. Is there objection to the original request
of the gentleman from Louisiana?
There was no objection.
[[Page H12861]]
A motion to reconsider was laid on the table.
____________________