[Congressional Record (Bound Edition), Volume 149 (2003), Part 23]
[House]
[Pages 32108-32115]
[From the U.S. 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.

[[Page 32109]]

       (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.
       (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

[[Page 32110]]

     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,
     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

[[Page 32111]]

       (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.
       (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

[[Page 32112]]

     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;
       (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

[[Page 32113]]

       (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--
       (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

[[Page 32114]]

     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 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

[[Page 32115]]

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.
  The SPEAKER pro tempore. Is there objection to the original request 
of the gentleman from Louisiana?
  There was no objection.
  A motion to reconsider was laid on the table.

                          ____________________