[Congressional Record Volume 150, Number 7 (Wednesday, January 28, 2004)]
[Extensions of Remarks]
[Pages E73-E74]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   S. 877--CONTROLLING THE ASSAULT OF NON-SOLICITED PORNOGRAPHY AND 
        MARKETING ACT OF 2003--CAN-SPAM ACT OF 2003 (PL 108-187)

                                 ______
                                 

                        HON. W.J. (BILLY) TAUZIN

                              of louisiana

                    in the house of representatives

                      Wednesday, January 28, 2004

  Mr. TAUZIN. Mr. Speaker, this statement represents my views as well 
as the views of the Ranking Member of the Committee on Energy and 
Commerce, John Dingell, on S. 877, the CAN-SPAM Act of 2003 (``the 
Act''). The House passed S. 877 by unanimous consent on December 8, 
2003, and the President signed S. 877 into law on December 16th 2003 
(Public Law 108-187). These views are in addition to those included in 
the November 21, 2003 and December 16, 2003, floor debate on S. 877.
  The purpose of the CAN-SPAM Act of 2003 is to prohibit certain 
predatory and abusive practices used to send commercial e-mail, provide 
consumers with the ability to more easily identify and opt-out of 
receiving other unwanted commercial e-mail, and to give such opt-outs 
the force of law. The legislation provides enforcement tools to the 
Federal Trade Commission (FTC), the Department of Justice (DOJ), other 
Federal regulators, States' Attorneys General and bona fide Internet 
service providers (ISPs) to enforce compliance with the Act.
  The Act's scope provides extensive jurisdiction over commercial e-
mail by, among other things, cross-referencing definitions of terms 
such as ``protected computer'' as that term is used in Section 1037(e) 
of Title 18, United States Code. This jurisdiction may be interpreted 
to extend extraterritorially. It is the intent of the Act to broadly 
assert jurisdiction over commercial e-mails--from any source--that are 
sent to U.S. recipients or that use protected computers in the U.S. to 
affect any of the deceptive spamming activities prohibited in Section 
1037 of Title 18 or Section 5(a)(1) of the Act's civil provisions, as 
well as jurisdiction over computers and computer servers engaged in 
communication with the United States which are used to send such 
commercial e-mails that otherwise cause harm to commerce in the United 
States. However, the managers also recognize that because of the nature 
of the Internet, commercial e-mail which is in no way falsified may 
transit the United States as a matter of routine conveyance without the 
knowledge of the initiator or sender, without being received by any 
U.S. consumers and with minimal impact here. For example, a travel 
agency located in Spain using computers that are sometimes in 
communication with the United States might send unfalsified commercial 
e-mail promoting travel specials exclusively to consumers in Chile but 
those e-mails would be routed as a matter of course through computer 
servers located in California without the knowledge of the initiator or 
sender. The Act is not intended to regulate the contents of such 
legitimate commercial e-mail messages (by, for instance, imposing the 
Act's required inclusions and opt-out regime) merely because they 
transit the United States or are sent from computers in communication 
with the United States, provided such commercial e-mails are not 
falsified in a manner prohibited by Section 1037 of Title 18, or 
Section 5(a)(1) or directed to or received by U.S. consumers and do not 
otherwise cause harm here.
  Section 1 of the legislation sets forth the short title, the CAN-SPAM 
Act of 2003.
  Section 2 of the legislation sets forth various Congressional 
findings and determinations. Such findings and determinations are in 
addition to those in this statement.
  Section 3 sets forth definitions.
  The term ``Commercial electronic mail message'' is defined as any e-
mail message, the primary purpose of which is commercial advertisement 
or promotion of a commercial product or service. The definition of 
commercial electronic mail message does not include transactional e-
mail. The purpose of this provision and its relationship to the 
definition of ``transactional or relationship message'' is to exclude 
from most of the requirements of the legislation, e-mail messages that 
are pursuant to existing transactional relationships between a consumer 
and an e-mail sender.
  The term ``Electronic mail message'' is intended to capture e-mail 
messages sent to a unique electronic mail address as that term is 
commonly understood and should be read to include messages sent to a 
unique electronic mail address where the reference to the Internet 
domain or ``domain part'' in the message is implicit and does not 
appear or is not displayed explicitly. This is not intended to expand 
or contract the commonly understood

[[Page E74]]

concept of ``Electronic mail message'' and ``Electronic mail address'' 
but to ensure the bill covers those e-mail messages where either the 
domain part is implicit or is added upon transmission or delivery of 
the message to a recipient by the owner of the Internet domain to 
facilitate delivery of the message.
  Section 4 sets forth civil and criminal penalties for fraudulent, 
abusive and predatory commercial e-mail.
  The section provides that intentionally sending multiple commercial 
e-mail messages from a protected computer without authorization is 
subject to the penalties set forth in subsection (b) of section 4. The 
purpose of this provision is to prevent fraudulent use of third party's 
computer for purposes of sending commercial e-mail.
  The section also provides that materially falsifying header 
information in multiple commercial e-mails is subject to the penalties 
set forth in subsection (b) of section 4. The purpose of this provision 
is to prevent fraudulent practices that disguise the route or source of 
a commercial e-mail message.
  The section also provides that using information that materially 
falsifies the identity of the actual registrant for five or more e-mail 
accounts or online user accounts, or two or more domain names, and 
intentionally sending commercial e-mail messages from any combination 
of such addresses or accounts is a violation of this Act and subject to 
the penalties set forth in subparagraph (b) of section 4. The term 
``online user accounts'' is meant to include registration for an 
account on a website that facilitates sending of e-mail messages to 
other users of such website. The purpose of this provision is to 
prevent the fraudulent establishment of e-mail accounts, online user 
accounts, web addresses or domain names from or through which unwanted 
commercial e-mail messages are intentionally sent or routed.

  The section also provides that one who falsely represents one's self 
to be the registrant or bona fide successor in interest to the 
registrant of five or more Internet protocol addresses and 
intentionally sends multiple commercial e-mails from such addresses is 
subject to the penalties set forth in subsection (b) of section 4.
  Subsection (b) of section 4 sets forth criminal penalties under the 
legislation. An offense as defined in section 4 is punishable by a fine 
or imprisonment of not more than five years or both if the offense is 
committed in furtherance of a felony (other than one defined in this 
Act), or the defendant has previously been convicted of a criminal 
offense under this Act or under the laws of any State, for conduct 
involving the sending of multiple unlawful commercial e-mail messages 
or unauthorized access to a computer system. Other violations under 
section (b) are punishable by a fine or imprisonment of not more than 
three years, or both.
  Section 4 (in newly created 18 U.S.C. 1037(d)(2)) and Section 5(a)(6) 
contain definitions of ``materially'' that apply to certain 
falsification violations of the Act's criminal and civil provisions. 
The phrase ``identify, locate, or respond'' as used in this definition 
is intended to be interpreted broadly to encompass all methods of 
technical falsification that impede the ability of the recipient, an 
ISP, the FTC or appropriate Federal regulator, the DOJ, or a State 
Attorney General either to identify the source of the e-mail or whether 
the e-mail comes from an approved or known sender, to locate or bring 
enforcement action against an initiator of the e-mail, or to respond by 
taking countermeasures against or transmitting the e-mail message back 
to the initiator. Materially falsifying may also include, for example, 
falsifying certificates or similar sender authentication mechanisms 
used by a recipient or an Internet access service to identify the 
source of an e-mail message.
  Section 5 of the legislation sets up a regulatory regime for sending 
commercial e-mail messages.
  The section prohibits the sending of commercial e-mail messages or 
transactional or relationship messages with headings that are 
materially false or materially misleading. The section also prohibits 
knowingly sending commercial e-mail messages with deceptive subject 
headings.
  The section requires a person sending commercial e-mail messages to 
conspicuously identify such messages as a solicitation or advertisement 
and provide to each recipient a conspicuous means of opting-out from 
receiving subsequent commercial e-mail messages. The term ``clear and 
conspicuous'' as it applies to the requirements of Section 5(a) is 
intended to be consistent with the meaning of that term as set forth in 
FTC guidance documents (e.g. ``Dot-Com Disclosures'' available via 
online publications at http://www.ftc.gov). It is intended that a 
required inclusion can meet the ``clear and conspicuous'' standard in a 
number of ways. The Act does not authorize the FTC to require the 
notice to be placed in a specific location such as the subject line or 
body of a commercial e-mail. The FTC is required by this Act to conduct 
a study of required labels in the subject line of commercial e-mail 
messages but cannot prescribe an inclusion of such label or notices in 
the subject line without further Congressional action. In addition, the 
sender of the commercial e-mail message must provide a reply e-mail 
address or other Internet-based mechanism, such as a clear and 
conspicuous link to an opt-out form, on a website that will enable 
recipients to reject further commercial communications within the scope 
of the opt-out from the sender. In addition, the sender must ensure the 
return e-mail address or other form of Internet-based communication is 
capable of receiving opt-outs for not less than 30 days from the 
transmission of each commercial e-mail message. We intend that senders 
of commercial e-mail provide a convenient, clear and simple way for 
consumers to opt-out of commercial e-mail. We also intend that senders 
of commercial e-mail devote sufficient resources to monitoring and 
maintaining records of consumer opt-outs so that giving effect to these 
consumers' opt-outs will be prompt and permanent.

  The section expressly provides that senders of commercial e-mail may 
provide recipients with a menu of options of commercial e-mail messages 
that the recipient may or may not wish to receive. Such a menu must 
include the option of receiving no additional commercial e-mail 
messages. An opt-out menu gives consumers the option to continue to 
receive a sub-group of defined communications from a sender, if the 
consumer so desires.
  The section provides that senders must give effect to customer opt-
outs within ten business days of receiving such opt-outs. This time 
period is subject to regulatory modification by the FTC as described 
below. It further provides that subsequent affirmative consent by a 
consumer (an opt-in) will allow a sender lawfully to send commercial e-
mail to a consumer so consenting. The burden of proving subsequent 
affirmative consent should be on the sender in any dispute between a 
sender and a recipient of commercial e-mail.
  This provision prohibits the sender, or any other person who knows 
that the recipient has made an opt-out request, from selling, leasing, 
exchanging or otherwise transferring or releasing the e-mail address of 
the recipient other than for purposes of compliance with this Act or 
any other law.
  Subparagraph (5) of section 5(a) sets forth specific required 
inclusions in commercial e-mail. These include clear and conspicuous 
identification that the message is an advertisement or a solicitation; 
a clear and conspicuous notice of the opportunity to opt-out of receipt 
of subsequent commercial e-mail messages; and a valid physical postal 
address of the sender.
  Subsection (b) of section 5 provides that harvesting e-mail addresses 
or generating e-mail addresses by means of a dictionary attack 
constitutes an aggravating factor for illegal transmission of 
commercial e-mail under subsection (a) of section 5. Use of automated 
means to generate e-mail addresses, or gathering e-mail addresses is 
not by itself illegal, unless the commercial e-mail messages sent to 
the generated or harvested addresses as a  result of such activity do 
not comply with the requirements of subsection (a).

  Subpart (2) makes reference to online user accounts. As in section 4, 
the term online user accounts is meant to include registration for an 
account on a website that facilitates sending of e-mail to other users 
of such website or any other protected computer not affiliated with the 
website.
  Subsection (c) of section 5 requires the FTC to conduct a rulemaking 
on the 10-day period required for e-mail senders to comply with 
customers' opt-out requests. As technology allows, we hope that that 
period will be shortened.
  Subsection (d) sets forth additional requirements for transmission of 
commercial e-mail messages containing sexually explicit material. In 
particular, such e-mail messages must alert recipients in the subject 
heading of the e-mail that the message contains sexually explicit 
material. Additionally, the sender must provide a means of opting-out 
from receipt of such messages in a manner that does not involve viewing 
sexually explicit images.
  My views, as well as those of Ranking Member John Dingell, regarding 
Sections six through 16 of the Act are continued in the Statement of 
John Dingell submitted contemporaneously with this statement.

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