[House Report 107-41]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 107-41, Part II
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ANTI-SPAMMING ACT OF 2001
_______
June 5, 2001.--Ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 718]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 718) to protect individuals, families, and Internet
service providers from unsolicited and unwanted electronic
mail, having considered the same, reports favorably thereon
with an amendment and recommends that the bill as amended do
pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 3
Background and Need for the Legislation.......................... 3
Congressional Research Service Memorandum Regarding the
Constitutionality of the Hart Amendment........................ 10
Hearings......................................................... 15
Committee Consideration.......................................... 16
Votes of the Committee........................................... 16
Committee Oversight Findings..................................... 18
Performance Goals and Objectives................................. 18
New Budget Authority and Tax Expenditures........................ 18
Congressional Budget Office Cost Estimate........................ 18
Constitutional Authority Statement............................... 20
Section-by-Section Analysis...................................... 20
Changes in Existing Law Made by the Bill, as Reported............ 21
Markup Transcript................................................ 23
Additional Views................................................. 103
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Anti-Spamming Act of 2001''.
SEC. 2. SPAMMING PROHIBITIONS.
(a) In General.--Part I of title 18, United States Code, is amended
by inserting after chapter 29 the following:
``CHAPTER 30--ELECTRONIC MAIL
``Sec.
``621. Unsolicited commercial electronic mail containing fraudulent
transmission information.
``622. Warning labels for electronic mail containing advertisements
harmful to minors.
``Sec. 621. Unsolicited commercial electronic mail containing
fraudulent transmission information
``(a) Whoever intentionally initiates in one or more transactions the
transmission of 10 or more unsolicited commercial electronic mail
messages to one or more protected computers in the United States,
knowing that each such message contains or is accompanied by header
information that is materially false or misleading as to the identity
of the person initiating the transmission shall be fined under this
title, and in the case of an offense under this section which occurs
after conviction for a prior offense under this section, shall be so
fined or imprisoned not more than one year, or both.
``(b) As used in this section--
``(1) the term `commercial electronic mail message' means an
electronic mail message the primary purpose of which is to
advertise or promote, for a commercial purpose, a product or
service (including content on an Internet website);
``(2) the term `header information' means the source,
destination, and routing information, including the originating
domain name and originating electronic mail address; and
``(3) the term `protected computer' has the meaning given
that term in section 1030(e)(2) of this title.
``(c)(1) A provider of Internet access service, if otherwise
permitted by the laws or rules of a court of a State, may bring in an
appropriate court of that State, or, if such laws or rules do not so
permit, may bring in an appropriate Federal court, an action to recover
for actual or statutory damages, as provided in paragraph (2), and for
costs, as provided in paragraph (4).
``(2) A person committing a violation of subsection (a) is liable to
a provider of Internet access service for either--
``(A) the actual damages suffered by the provider of Internet
access service; or
``(B) statutory damages, as provided in paragraph (3).
``(3) At any time before final judgment in an action, a provider of
Internet access service may elect to recover an award of statutory
damages for each violation of subsection (a) in the sum of $5 per
violation, not to exceed a total of $1,000,000, except that, during any
one-year period for which the defendant has transmitted in excess of
20,000,000 unsolicited commercial electronic mail messages, no such
limit on liability shall exist.
``(4) In any action brought under paragraph (1), the court may award
to a prevailing party reasonable litigation expenses incurred by that
party, including reasonable attorney's fees, as a part of the costs
awarded under section 1920 of title 28 against any party found in that
action to have committed a violation of subsection (a).
``Sec. 622. Warning labels for electronic mail containing
advertisements harmful to minors
``(a)(1) The Attorney General shall prescribe marks or notices to be
included in electronic mail that contains a sexually oriented
advertisement in order to inform the recipient of that fact.
``(2) Whoever, in any electronic mail that is carried on an
instrumentality in or affecting interstate or foreign commerce,
knowingly includes a sexually oriented advertisement but does not
include in such electronic mail the marks or notices prescribed by the
Attorney General under this section shall be fined under this title or
imprisoned not more than one year, or both.
``(b) As used in this section, the term `sexually oriented
advertisement' means any advertisement that depicts, in actual or
simulated form, or explicitly describes, in a predominantly sexual
context, human genitalia, any act of natural or unnatural sexual
intercourse, any act of sadism or masochism, or any other erotic
subject directly related to the foregoing, but material otherwise
within the definition of this subsection shall be deemed not to
constitute a sexually oriented advertisement if it constitutes only a
small and insignificant part of the whole, the remainder of which is
not primarily devoted to sexual matters.''.
(b) Clerical Amendment.--The table of chapters at the beginning of
part I of title 18, United States Code, is amended by inserting after
the item relating to chapter 29 the following new item:
``30. Electronic mail....................................... 621''.
SEC. 3. STUDY OF EFFECTS OF UNSOLICITED COMMERCIAL ELECTRONIC MAIL.
Not later than 18 months after the date of the enactment of this Act,
the Attorney General 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.
Purpose and Summary
The amendment in the nature of a substitute adopted by the
Committee completely replaces the text of H.R. 718. It is a
bipartisan targeted approach to address two specific problems
relating to unsolicited commercial electronic mail (``UCE'').
First, the amendment makes it illegal to conceal the identity
of the sender of the e-mail. This misdemeanor prohibition is
necessary because unscrupulous individuals conceal what is
known as point-of-origin, routing or header information in
order to defeat the preferences and filtering mechanisms
employed by Internet service providers (``ISPs'') and computer
users. Furthermore, those who peddle schemes to defraud
individuals, such as get-rich-quick schemes, and transmit
pornography via e-mail often conceal the origin of the e-mail
in furtherance of their unscrupulous desire to swindle
consumers or entice them to purchase pornography over the
Internet. There is no legitimate reason to falsify the header
information accompanying commercial e-mail.
The second problem addressed by the amendment is
unsolicited pornography sent via e-mail. This problem is
addressed by the Hart amendment which was offered by
Representative Melissa Hart. This provision directs the
Attorney General to prescribe marks to be included in all
pornographic e-mail. The amendment is modeled after a long-
standing postal statute, 39 U.S.C. Sec. 3010, which mandates
that marks be included on the envelope of pornographic material
sent through the United States Postal Service. This provision
will allow users to delete pornographic material without
viewing its contents and will assist parents in screening or
filtering out unwanted pornographic e-mail, thereby protecting
children from receiving and viewing pornography contained or
accompanying e-mail. In short, a recipient of a pornographic e-
mail will now have the ability to utilize technology to
automatically do the equivalent of throwing out unopened junk
mail.
Background and Need for the Legislation
Jurisdiction and Procedure
H.R. 718, the ``Unsolicited Commercial Electronic Mail Act
of 2001'' was introduced by Rep. Heather Wilson on February 14,
2001, and was referred to the Committee on Energy and Commerce
and the Committee on the Judiciary for a period to be
subsequently determined by the Speaker. The Committee on Energy
and Commerce ordered the bill, as amended, reported on March
28, 2001. On March 29, 2001, the Committee on the Judiciary
requested that its referral be extended to June 5, 2001.\1\ The
Committee on Energy and Commerce subsequently filed its report
on April 4, 2001.\2\ On that day, the Speaker granted an
extension to the Judiciary Committee ending not later than June
5, 2001.
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\1\ See Letter from the Honorable F. James Sensenbrenner to the
Honorable Dennis Hastert, Jr., March 29, 2001.
\2\ See Unsolicited Commercial Electronic Mail Act of 2001, H.
Rept. 107-41, Part 1 (April 4, 2001) (hereinafter ``Commerce Report'').
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H.R. 718 was referred to the House Judiciary Committee
because a number of provisions fall within the Committee's Rule
X jurisdiction, including:
Section 1--Short Title;
Section 2--Congressional Findings and Policy;
Section 3--Definitions--including paragraphs
(4), (5), (8), (9), and (12);
Section 4--Criminal Penalty for Unsolicited
Commercial Electronic Mail Containing Fraudulent
Routing Information;
Section 5(c)--Internet Service Provider
Immunity Provision;
Section 6(a)(5)--Enforcement by Court Order;
Section 6(b)--Private Right of Action;
Section 7--Effect on Other Laws;
Section 8--Study of Effects of Unsolicited
Commercial Electronic Mail;
Section 9--Separability; and
Section 10--Effective Date.
The amendment in the nature of a substitute adopted by the
House Committee on Commerce contained several additional
provisions that fall within the Committee's jurisdiction,
including, a prohibition on class action lawsuits (section
6(b)(4)) and a provision authorizing state attorneys general to
file suit on behalf of their citizens (section 6(c)). The
Committee also has pending before it H.R. 1017, the ``Anti-
Spamming Act of 2001,'' introduced by Rep. Bob Goodlatte, and
H.R. 95, the ``Unsolicited Commercial Electronic Mail Act of
2001,'' introduced by Rep. Gene Green. The Committee reviewed
H.R. 1017 and H.R. 718 in depth at its May 10, 2001, hearing.
Regulation of Electronic Commerce and Spam
The increased use of the Internet for electronic commerce
is desirable. In fact, the Congress has encouraged, through
such measures as the ``Electronic Signatures in Global and
National Commerce Act,'' \3\ the full use of the Internet to
conduct business. Businesses use e-mail, much like the regular
mail, to market their products and services. E-mail marketing
is viewed by many as a necessary component of electronic
commerce. The market efficiencies that the Internet can provide
consumers is facilitated by providing consumers with product
information, notices about specials and discounts, and other
wanted consumer information.
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\3\ P.L. 106-229.
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Electronic commerce is still in its infancy. Business
models are constantly changing to find the right formula for
success over the Internet. Electronic commerce is currently
experiencing a number of difficulties. For example, banner ad
revenue has fallen dramatically and many Internet companies
have or are going out of business or filing for bankruptcy.
Marketing, no matter how annoying, is integral to the
success of commerce, including electronic commerce. Members on
both sides of the aisle have raised serious concerns about
regulating e-mail marketing and its impact on the growth of
commerce. The Committee, in adopting its position, has chosen a
cautious approach regarding the regulation of electronic
commerce, particularly given this era of great technological
and market change.
Like any new technology, the Internet brings with it some
challenges. One such challenge is the use of e-mail to deceive,
cheat, defraud, and swindle consumers. Additionally, some mass
commercial and non-commercial e-mailers send pornography to
unwilling recipients. Some see the increased use of e-mail,
particularly UCE (also known as ``spam'' or ``junk e-mail''),
as intrusive, annoying, and costly to consumers and ISPs.
The debate about spam is often complicated because policy
makers often confuse or don't understand what constitutes spam.
The term ``spam'' is used to encompass a number of different
practices, some criminal, some annoying, and some benign. E-
mail fraud, e-mail pornography, and e-mail marketing are all
often erroneously lumped into the same category. They are
demonstrably different, and the amendment adopted by the
Committee recognizes those differences.
Fraudulent and Deceptive E-mail Content
There are generally two types of fraudulent or deceptive e-
mail. The first is e-mail that makes fraudulent claims, such as
the typical pyramid or other get-rich-quick scheme which is
intended to deceive, cheat, defraud, or swindle consumers. This
type of fraud falls directly under existing laws such as
section 5(a) of the Federal Trade Commission Act \4\ or the
Federal wire fraud statute.\5\ In addition, the Computer Fraud
and Abuse Act \6\ provides the Federal Government with the
statutory authority to investigate and prosecute those involved
in damaging computers or accessing them without authorization.
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\4\ 15 U.S.C. Sec. 45(a).
\5\ 18 U.S.C. Sec. 1343.
\6\ 18 U.S.C. Sec. 1030.
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On April 26, 2001, the Federal Trade Commission (``FTC''),
testified before the Senate Subcommittee on Communications of
the Committee on Commerce, Science and Transportation about
their efforts to address fraudulent UCE. Since 1994, when the
FTC first filed an enforcement action against deception on the
Internet, the Commission has brought 173 law enforcement
actions against more than 575 defendants to halt online
deception and fraud. Regarding deception and fraud, the FTC
testified as follows:
By no means is all UCE is [sic] fraudulent, but fraud
operators, who are often among the first to exploit any
technological innovation, have seized on the Internet's
capacity to reach literally millions of consumers
quickly and at a low cost through UCE. Not only are
fraud operators able to reach millions of individuals
with one message, but they can misuse the technology to
conceal their identity. Many spam messages contain
false information about the sender and where the
message was routed from, making it nearly impossible to
trace the UCE back to the actual sender. In the same
vein, UCE messages also often contain misleading
subject lines and extravagant earnings or performance
claims about goods and services. These types of claims
are the stock in trade of fraudulent schemes.
Bulk UCE burdens (indeed, sometimes cripples) Internet
service providers and frustrates their customers. The
FTC's main concern with UCE, however, is its widespread
use to disseminate false and misleading claims about
products and services. The Commission believes the
proliferation of deceptive bulk UCE on the Internet
poses a threat to consumer confidence in online
commerce and thus views the problem of deception as a
significant issue in the debate over UCE.\7\
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\7\ Written testimony of the Federal Trade Commission submitted to
the Senate Subcomm. on Communications of the Senate Comm. on Commerce,
Science and Transportation (April 26, 2001), available at , visited June 1, 2001.
Fraudulent e-mail is a problem that the FTC is attempting
to address, but some believe additional measures need to be
taken to punish those who would use fraud or deception to take
advantage of consumers. None of the spam bills pending before
Congress would directly address issues relating to this type of
fraudulent activity.
Technically Fraudulent E-mail
The second type of e-mail fraud is technical fraud.
Technical fraud, according to the Report to the Federal Trade
Commission of the Ad-Hoc Working Group on Unsolicited
Commercial Mail, ``is defined as the variety of practices, such
as relaying through third-party mail servers, dynamically
forging header information and registering false domain names,
used by those sending UCE to avoid detection, frustrate remove
requests, misdirect replies, and generally frustrate efforts by
users to prevent their continued receipt of UCE from the same
sender.'' \8\ Those who engage in the first type of fraud often
times attempt to conceal their true identities through
technical fraud. Technical fraud is used to defeat Internet
service providers' and computer users' e-mail filters,
preferences, and other technologies developed to combat
unwanted e-mail.
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\8\ Report to the Federal Trade Commission of the Ad-Hoc Working
Group on Unsolicited Commercial Email (hereinafter ``Ad-Hoc Report'')
(July 1998).
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Some Internet service providers have successfully used
state statutory or common law as a basis to litigate against
those who engage in technical fraud; however, most agree that
more needs to be done. The Ad-Hoc Report reviewed whether
Federal authorities could prosecute senders of UCE for using
falsified addressing information and falsified headers to
deceive consumers and concluded that the legality of such a
practice was unclear.\9\ The Ad-Hoc Working Group endorsed
public policies that ``prevent and/or prohibit the use of
fraudulent headers to send unsolicited commercial email
messages.'' \10\ All of the witnesses who testified before the
Committee endorsed the provisions in H.R. 1017 that address
technical fraud. Addressing technical fraud is the cornerstone
of the bipartisan compromise adopted by the Committee.
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\9\ Id. at 16.
\10\ Id. at 31.
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E-mail Pornography
E-mail pornography is a particularly troubling problem. E-
mail pornography is also a concern of the Energy and Commerce
Committee.\11\ E-mail pornographers obtain e-mail addresses
from a number of sources, including Internet chat rooms.
Technology enables them to send millions of unsolicited
pornographic e-mails to adults and children. Internet service
providers and the FTC have received numerous complaints about
such unwanted e-mail, but they have been virtuously powerless
to stop this practice. The Hart amendment, adopted by the
Committee, clearly and directly addresses this issue whereas
H.R. 718, as introduced and reported by the Energy and Commerce
Committee, treats pornographic e-mail in exactly the same
manner as all unsolicited commercial e-mail.
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\11\ Commerce Report at 9 (``There are also concerns that many
unsolicited commercial electronic mail messages contain material of an
adult nature that can be easily accessed by children from the family
computer, and in many instances these mail messages are intentionally
sent with incorrect routing information'').
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Unsolicited Commercial E-mail
Unsolicited commercial e-mail, unlike fraudulent e-mail, is
more difficult to define. Consumers and retailers often have
various relationships through various affiliates in which they
may or may not have prior business relationships. Some
consumers may give permission to receive information about a
certain product or type of product (i.e. womens clothing) but
such permission may not be specific to a given company.
Identifying the particular stage of e-mail marketing to
regulate in the retailer-consumer relationship is a difficult
issue and one the Committee rejected.
Furthermore, the Committee was not convinced that non-
fraudulent or non-pornographic e-mail marketing requires
regulation. Most legitimate users of e-mail advertising do not
engage in fraud or deception and utilize some form of
permission-based marketing. In their April 26, 2001, testimony,
the FTC noted that ``well-known manufacturers and sellers of
consumer goods and services do not send UCE. Rather, such
merchants use solicited e-mail to give consumers information
that they have requested about available products, services,
and sales.'' \12\
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\12\ Supra note 7. See also, Unsolicited Commercial Communications
and Data Protection, Report to the Commission of the European
Communities, 24-26 (January 2001) (``As for spam, it is clear that its
days are numbered, now that it is shunned by the marketing industry
itself as well as by the network operators and by a public which will
never be inclined to enter into a relationship of trust with at
spammer.'').
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The Committee Adopts a Cautious Approach to the Regulation of E-Mail
Marketing
The Committee specifically rejected the legal and
regulatory regime approved by the House Energy and Commerce
Committee because of concerns about the necessity of regulating
e-mail marketing and the proportionality of the proposed
enforcement mechanisms relative to the harm or damage caused by
non-fraudulent unsolicited commercial e-mail. The amendment in
the nature of a substitute does not contain many of the
unprecedented, complicated, and disproportionate enforcement
provisions contained in H.R. 718. H.R. 718 utilizes a number of
legal enforcement and regulatory tools to control UCE. These
provisions are disproportionate to the harm or damage caused by
spam. H.R. 718, as reported by the Energy and Commerce
Committee, contains two provisions which would empower Internet
service providers to effectively write Federal law. These
provisions raise serious Constitutional concerns.
First, an ISP's unsolicited commercial e-mail policy could
be enforced through litigation initiated by ISPs, individuals,
state attorneys general, and the Federal Trade Commission. The
second provision would deem an ISP policy a ``Federal trade
regulation rule'' under section 18 of the FTC Act. There is no
requirement that the ISP's policy be open to the public
pursuant to the Administrative Procedures Act as are Federal
trade regulation rules under current law.\13\ Thus, the
approximately 5,000 ISP's could write different policies
enforced by myriad legal actions without the due process
afforded by traditional rules and law. The Committee's research
has uncovered no precedent for these provisions, and concerns
were raised that they are unnecessary and raise constitutional
issues. Furthermore, because these various laws and policies
could be enforced in State or Federal courts, a consistent
application of the new proposed Federal cause of action is far
from certain.
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\13\ 15 U.S.C. Sec. 57a(b)(1).
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The Committee is also concerned about the regulation of on-
line commerce, including e-mail marketing. H.R. 718, if not
changed, would be the first major Federal regulation of online
commerce. At a time of great technological and market changes
in the electronic or Internet commerce arena, Congress should
be cautious when considering new regulations of e-commerce so
that it does not unintentionally stifle innovation in this
emerging market place. Furthermore, the law should not, at this
time, favor one method of conducting business over another.
H.R. 718, as introduced and reported by the Energy and Commerce
Committee, would apply onerous rules and regulations to online
marketing which don't exist in the offline world. The
consequence of favoring one method of commercial communication
(mail) over another (e-mail) could adversely impact the growth
of electronic commerce.
Another concern about the regulation of e-mail marketing
has to do with proportionality. The Committee is concerned
about making a Federal case out of a mere annoyance. Congress
should carefully consider proposals that would unleash the FTC,
state attorneys general, and the trial bar on U.S. businesses
for sending unsolicited commercial e-mail. UCE that is not
fraudulent or pornographic may be annoying; however, it can be
easily discarded by deleting it--the equivalent of throwing
junk mail away. Furthermore, most legitimate businesses are
interested in attracting new customers and are concerned about
annoying potential customers. Therefore, most legitimate
businesses offer some form of permission based marketing and
will readily remove one's name from a mailing list upon
request.
Finally, consumers bear some responsibility in stemming the
tide of spam. Consumers must be wary about giving out their e-
mail addresses to people or businesses with whom they are
unfamiliar. For example, by posting one's e-mail address on a
chat room, one should know that anyone with Internet access
potentially has access to that posted e-mail address. Online
pornographers will ``harvest'' e-mail addresses posted on
Internet chat rooms or message boards and then send
pornographic material to those individuals. The same common
sense rules that apply in the offline world also apply to the
online world, i.e. consumers should only give out their names,
addresses, and phone numbers to people and merchants that they
trust.
Amendment in the Nature of a Substitute
Technical Fraud
The amendment in the nature of a substitute would create a
new misdemeanor criminal provision to address the issue of
technical fraud. Technical fraud includes forging or falsifying
header and return information, thereby concealing the sender's
identity. Those who send fraudulent e-mail or pornography often
use technical fraud to conceal their true identities.
Furthermore, technical fraud is used to defeat Internet service
providers' and computer users' e-mail filters, preferences, and
other technologies designed to block unwanted e-mail. All of
the witnesses who testified before the Committee, the Federal
Trade Commission (FTC) in other testimony, and the Ad-Hoc
Working Group on Unsolicited Commercial E-Mail, which reported
to the FTC in July 1998, all support public policies addressing
fraudulently concealing one's identity. A first offense for
sending UCE with falsified or misleading header information
would be punishable by fine and a second offense would be
punishable by imprisonment.
Goodlatte Amendment
The amendment in the nature of a substitute also includes a
provision, offered as an amendment by Rep. Bob Goodlatte,
authorizing Internet service providers to file suit to recover
actual or statutory damages for engaging in technical fraud.
Rep. Goodlatte argued that ISP's, which have a vested business
interest in protecting its customers from receiving fraudulent
e-mail, would help deter the type of behavior the bill seeks to
prohibit. Furthermore, it is argued that spam causes ISPs to
incur tangible quantifiable costs, namely the costs associated
with maintaining computer networks that may be impaired by
large volumes of spam and the dissatisfaction of customers and
the consequent loss of goodwill. It is argued that ISPs would
use this authority as they do other statutory and common law
authorities to protect themselves and their customers. For
example, ISPs have successfully utilized state trespass laws to
prevent spammers from flooding their networks with unwanted e-
mail.\14\ The Goodlatte amendment is intended to supplement any
State or Federal authority already relied on by ISPs to protect
their networks and their customers.
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\14\ See e.g. CompuServe Inc. v. Cyber Promotions, Inc., 962 F.
Supp. 1015 (S.D. Ohio 1997); America Online, Inc. v. IMS, 24 F. Supp.2d
548 (E.D. Va. 1998); America Online, Inc. v. LCGM, Inc., 46 F. Supp.2d
444 (E.D. Va 1998). For a more detailed review of statutory and common
law legal theories utilized to address spam, see Credence E. Fogo, The
Postman Always Rings 4,000 Times: New Approaches to Curb Spam, 18 John
Marshall Journal of Computer and Information Law, 915 (2000); Michael
A. Fisher, The Right to Spam? Regulating Electronic Junk Mail, 23
Columbia-VLA Journal of Law and the Arts 357 (2000); Kenneth C.
Amaditz, Canning ``Spam'' in Virginia: Model Legislation to Control
Junk E-mail, 4 Va. J.L. & Tech. 4 (1999).
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Hart Amendment
The amendment in the nature of a substitute contains a
provision, offered as an amendment by Rep. Melissa Hart, that
directs the Attorney General to prescribe marks to be included
in all pornographic e-mail. The amendment is modeled after a
long-standing postal statute, 39 U.S.C. Sec. 3010, which
mandates that marks be included on the envelope of pornographic
material sent through the United States Postal Service. This
provision will allow users to delete pornographic material
without viewing its contents and will assist parents in
screening or filtering out unwanted pornographic e-mail,
thereby protecting children from receiving and viewing
pornography contained or accompanying e-mail. In short, a
recipient of a pornographic e-mail will now have the ability to
utilize technology to automatically do the equivalent of
throwing out unopened junk mail. Concerns were raised at the
markup that this provision raised constitutional concerns;
however, the Congressional Research Service, in a memorandum to
the Committee, concluded that the Hart amendment is
constitutional. The memorandum is reprinted in this report.
Schiff Amendment
Finally, the Committee adopted an amendment offered by Rep.
Adam Schiff which directs the Attorney General to conduct a
study of the effectiveness of the Act.
Congressional Research Service Memorandum Regarding the
Constitutionality of the Hart Amendment
Because concerns were raised at the markup about the
constitutionality of the Hart amendment, which would make it a
misdemeanor to knowingly send an e-mail that includes a
sexually oriented advertisement without a mark or notice
prescribed by the Attorney General, the Committee requested a
legal opinion from the American Law Division of the
Congressional Research Service (CRS) regarding the
constitutionality of the amendment. The opinion concludes that
the Hart amendment would not violate the First Amendment of the
U.S. Constitution. The CRS memorandum follows:
Hearings
The Committee held a legislative hearing on H.R. 718, the
``Unsolicited Commercial Electronic Mail Act of 2001,'' and
H.R. 1017, the ``Anti-Spamming Act of 2001'' on May 10, 2001.
Testimony was received from The Honorable Heather Wilson, U.S.
Representative from the First Congressional District in New
Mexico; Mr. Rick Lane, Director, eCommerce & Internet
Technology, U.S. Chamber of Commerce; Mr. Marc Lackritz,
President, Securities Industry Association; Mr. Paul Misener,
Vice President for Global Public Policy, Amazon.com
(representing Amazon.com and the National Retail Federation);
and Mr. Wayne Crews, Director of Technology Studies, Cato
Institute.
Committee Consideration
On May, 23, 2001, the Committee met in open session and
ordered favorably reported the bill H.R. 718, as amended, by
voice vote, a quorum being present.
Votes of the Committee
1. Mr. Watt offered an amendment to the Goodlatte amendment
to the amendment in the nature of a substitute which would have
expanded the private right of action proposed by the Goodlatte
amendment to allow customers of Internet service providers to
bring an action against a person who violates subsection (a).
The amendment was defeated by a rollcall vote of 10 to 17.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
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Mr. Hyde........................................................
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly....................................................
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Hutchinson.................................................. X
Mr. Cannon...................................................... X
Mr. Graham......................................................
Mr. Bachus...................................................... X
Mr. Scarborough.................................................
Mr. Hostettler..................................................
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Conyers..................................................... X
Mr. Frank....................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott.......................................................
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 10 17
----------------------------------------------------------------------------------------------------------------
2. Ms. Lofgren offered and amendment to the Goodlatte
amendment to the amendment in the nature of a substitute which
proposed to strike the provision in the Goodlatte amendment
which provides statutory damages, thereby limiting damages to
actual damages. The Lofgren amendment also proposed to permit
an ``e-mail recipient'' to sue for actual damages. The
amendment was defeated by a rollcall vote of 12 to 16.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Hutchinson.................................................. X
Mr. Cannon...................................................... X
Mr. Graham......................................................
Mr. Bachus...................................................... X
Mr. Scarborough.................................................
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Conyers..................................................... X
Mr. Frank....................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott.......................................................
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 12 16
----------------------------------------------------------------------------------------------------------------
3. Mr. Schiff offered an amendment to the amendment in the
nature of a substitute which proposed an additional misdemeanor
offense for failure to include within the header information an
identifier prescribed by the Attorney General which would have
informed the recipient that the electronic message was an
unsolicited commercial electronic message. The identifier would
have also permitted automatic filtering. The amendment was
defeated by a rollcall vote of 8 to 14.
ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Gekas.......................................................
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Hutchinson..................................................
Mr. Cannon...................................................... X
Mr. Graham......................................................
Mr. Bachus...................................................... X
Mr. Scarborough.................................................
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Conyers.....................................................
Mr. Frank.......................................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 8 14
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Performance Goals and Objectives
H.R. 718 does not authorize funding. Therefore, clause 3(c)
of rule XIII of the Rules of the House of Representatives is
inapplicable.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 718, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 5, 2001.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 718, the Anti-
Spamming Act of 2001.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Mark
Grabowicz (for Federal costs), who can be reached at 226-2860,
and Lauren Marks (for the private-sector impact), who can be
reached at 226-2940.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers Jr.
Ranking Member
H.R. 718--Anti-Spamming Act of 2001.
CBO estimates that implementing H.R. 718 would result in no
significant costs to the Federal Government. Because enactment
of the bill could affect direct spending and receipts, pay-as-
you-go procedures would apply, however, CBO estimates that any
impact on direct spending and receipts would not be
significant. H.R. 718 contains no intergovernmental mandates as
defined in the Unfunded Mandates Reform Act (UMRA) and would
impose no costs on state, local, or tribal governments. The
bill would impose a private-sector mandate as defined by UMRA
on individuals who send commercial electronic mail containing a
sexually oriented advertisement. Based on information provided
by government and industry sources, CBO expects that the direct
cost of complying with the mandate would fall well below the
annual threshold established by UMRA ($113 million in 2001,
adjusted annually for inflation).
H.R. 718 would impose new restrictions on the transmission
of unsolicited commercial electronic mail (UCE). The bill would
establish criminal penalties for knowingly sending certain UCE
that contains false identification information or sexually
oriented advertisements. Under the bill's provisions, providers
of internet access could initiate legal action against persons
who send UCE containing false identification information. H.R.
718 also would direct the Attorney General to prepare a report,
within 18 months of enactment, on the effectiveness and
enforcement of the bill's provisions.
CBO estimates that it would cost the Department of Justice
less than $500,000 to prepare the report required by the bill,
subject to the availability of appropriated funds. Because
H.R. 718 would establish a new Federal crime, the
government would be able to pursue cases that it otherwise
would not be able to prosecute. Under the bill, however, we
expect a relatively small number of cases would be pursued and
that any increase in costs for law enforcement, court
proceedings, or prison operations would not be significant. Any
such costs would be subject to the availability of appropriated
funds.
Because those prosecuted and convicted under H.R. 718 could
be subject to criminal fines, the government might collect
additional fines if the bill is enacted. Collections of such
fines are recorded in the budget as governmental receipts
(revenues), which are deposited in the Crime Victims Fund and
spent later. Any additional receipts and direct spending from
enacting H.R. 718 are not likely to be significant because of
the relatively small number of cases involved.
H.R. 718 would impose a private-sector mandate as defined
by UMRA on individuals who send electronic mail that contains a
sexually oriented advertisement. The bill would require the
senders to include marks or notices, to be prescribed by the
Attorney General, on all such messages that would inform
recipients of the sexual content of the message. Based on
information provided by government and industry sources, CBO
estimates that the direct cost of complying with this mandate
would fall well below the annual threshold established by UMRA
for private-sector mandates.
On April 13, 2001, CBO transmitted a cost estimate for H.R.
718, the Unsolicited Commercial Electronic Mail Act of 2001, as
reported by the House Committee on Energy and Commerce on April
4, 2001. CBO estimated that implementing that legislation would
cost about $6 million over the 2002-2006 period and would
increase revenues by about $13 million over the same period,
mostly from provisions affecting the Federal Trade Commission.
The CBO staff contacts for this estimate are Mark Grabowicz
(for Federal costs), who can be reached at 226-2860, and Lauren
Marks (for the private-sector impact), who can be reached at
226-2940. This estimate was approved by Peter H. Fontaine,
Deputy Assistant Director for Budget Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clauses 3 and 18 of
the Constitution.
Section-by-Section Analysis and Discussion and Discussion
Section 1. Short Title. Provides that the short title of
the act shall be the ``Anti-Spamming Act of 2001.''
Section 2. Spamming Prohibitions. Adds a new ``Chapter 30--
Electronic Mail'' to title 18 of the United States Code. Two
new sections, 621 and 622, would be included in chapter 30.
Section 621(a) would prohibit anyone from sending an
unsolicited commercial electronic mail message that contains
fraudulent transmission information. Specifically, the new
section would prohibit the intentional transmission of 10 or
more unsolicited commercial electronic mail message to one or
more protected computers in the United States knowing that the
message contains or is accompanied by header information that
is materially false or misleading as to the identity of the
person initiating the transmission. A first offense under this
section is punishable by fine under the applicable provisions
of title 18, United States Code, and subsequent offenses may be
punished by imprisonment for not more than 1 year.
Subsection (b)(1) of section 621 defines ``commercial
electronic mail message'' as ``an electronic mail message the
primary purpose of which is to advertise or promote, for a
commercial purpose, a product or service (including content on
an Internet website).'' Subsection (b)(2) defines ``header
information'' as ``the source, destination, and routing
information, including the originating domain name and
originating electronic mail address.'' Subsection (b)(3)
defines ``protected computer'' in the same manner as it is
defined by 18 U.S.C. Sec. 1030(e)(2).
Subsection (c) of section 621 provides that an Internet
service provider may bring a cause of action in an appropriate
state court, or, if not permitted by state laws or rules, in an
appropriate Federal court, against a person who commits a
violation of subsection (a). Such a person would be liable for
actual or statutory damages, an may be liable for costs.
Statutory damages are $5.00 per violation, not to exceed
$1,000,000, except that, no limit applies if during any 1-year
period the defendant transmitted in excess of 20,000,000
unsolicited commercial electronic mail messages.
New section 622 would prohibit the inclusion of a sexually
oriented advertisement in electronic mail unless it includes a
warning label. Specifically, section 622 directs the Attorney
General to prescribe marks or notices to be included in
electronic mail that contains a sexually oriented advertisement
in order to inform the recipient of that fact. Whoever
knowingly includes such an advertisement without including the
prescribed marks shall be fined under the applicable provisions
of title 18, United States Code, or imprisoned not more than 1
year, or both.
Section 622(b) defines ``sexually oriented advertisement''
as ``any advertisement that depicts, in actual or simulated
form, or explicitly describes, in a predominantly sexual
context, human genitalia, any act of sadism or masochism, or
any other erotic subject directly related to the foregoing, but
material otherwise within the definition of this subsection
shall be deemed not to constitute a sexually oriented
advertisement if it constitutes only a small and insignificant
part of the whole, the remainder of which is not primarily
devoted to sexual matters.''
Section 3. Study of Effects of Unsolicited Commercial
Electronic Mail. Directs the Attorney General to submit a
report to Congress with 18 months of enactment of the Act which
provides a detailed analysis of the effectiveness of the
enforcement provisions of the Act and the need (if any) for the
Congress to modify such provisions.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
Chap. Sec.
1. General provisions......................................... 1
* * * * * * *
30. Electronic mail............................................. 621
* * * * * * *
CHAPTER 30--ELECTRONIC MAIL
Sec.
621. Unsolicited commercial electronic mail containing fraudulent
transmission information.
622. Warning labels for electronic mail containing advertisements
harmful to minors.
Sec. 621. Unsolicited commercial electronic mail containing fraudulent
transmission information
(a) Whoever intentionally initiates in one or more
transactions the transmission of 10 or more unsolicited
commercial electronic mail messages to one or more protected
computers in the United States, knowing that each such message
contains or is accompanied by header information that is
materially false or misleading as to the identity of the person
initiating the transmission shall be fined under this title,
and in the case of an offense under this section which occurs
after conviction for a prior offense under this section, shall
be so fined or imprisoned not more than one year, or both.
(b) As used in this section--
(1) the term ``commercial electronic mail message''
means an electronic mail message the primary purpose of
which is to advertise or promote, for a commercial
purpose, a product or service (including content on an
Internet website);
(2) the term ``header information'' means the source,
destination, and routing information, including the
originating domain name and originating electronic mail
address; and
(3) the term ``protected computer'' has the meaning
given that term in section 1030(e)(2) of this title.
(c)(1) A provider of Internet access service, if otherwise
permitted by the laws or rules of a court of a State, may bring
in an appropriate court of that State, or, if such laws or
rules do not so permit, may bring in an appropriate Federal
court, an action to recover for actual or statutory damages, as
provided in paragraph (2), and for costs, as provided in
paragraph (4).
(2) A person committing a violation of subsection (a) is
liable to a provider of Internet access service for either--
(A) the actual damages suffered by the provider of
Internet access service; or
(B) statutory damages, as provided in paragraph (3).
(3) At any time before final judgment in an action, a
provider of Internet access service may elect to recover an
award of statutory damages for each violation of subsection (a)
in the sum of $5 per violation, not to exceed a total of
$1,000,000, except that, during any one-year period for which
the defendant has transmitted in excess of 20,000,000
unsolicited commercial electronic mail messages, no such limit
on liability shall exist.
(4) In any action brought under paragraph (1), the court may
award to a prevailing party reasonable litigation expenses
incurred by that party, including reasonable attorney's fees,
as a part of the costs awarded under section 1920 of title 28
against any party found in that action to have committed a
violation of subsection (a).
Sec. 622. Warning labels for electronic mail containing advertisements
harmful to minors
(a)(1) The Attorney General shall prescribe marks or notices
to be included in electronic mail that contains a sexually
oriented advertisement in order to inform the recipient of that
fact.
(2) Whoever, in any electronic mail that is carried on an
instrumentality in or affecting interstate or foreign commerce,
knowingly includes a sexually oriented advertisement but does
not include in such electronic mail the marks or notices
prescribed by the Attorney General under this section shall be
fined under this title or imprisoned not more than one year, or
both.
(b) As used in this section, the term ``sexually oriented
advertisement'' means any advertisement that depicts, in actual
or simulated form, or explicitly describes, in a predominantly
sexual context, human genitalia, any act of natural or
unnatural sexual intercourse, any act of sadism or masochism,
or any other erotic subject directly related to the foregoing,
but material otherwise within the definition of this subsection
shall be deemed not to constitute a sexually oriented
advertisement if it constitutes only a small and insignificant
part of the whole, the remainder of which is not primarily
devoted to sexual matters.
* * * * * * *
Markup Transcript
BUSINESS MEETING
WEDNESDAY, MAY 23, 2001
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10:06 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [chairman of the committee] presiding.
Chairman Sensenbrenner. The committee will be in order.
The next item on the agenda is H.R. 718, the Unsolicited
Commercial Electronic Mail Act of 2001, and I move its
favorable recommendation to the full House.
[H.R. 718 follows:]
Without objection, the bill will be considered as read and
open for amendment at any point, and the amendment in the
nature of a substitute, which the members have before them,
will be considered as read and considered as the original text
for purposes of amendment.
[The amendment in the nature of a substitute follows:]
Chairman Sensenbrenner. The Chair recognizes himself to
strike the last word.
The amendment in the nature of a substitute that all
members have before them is the product of bipartisan
cooperation between the majority and the minority, and I
appreciate the work of all members on this bill. Judiciary
Committee members on both sides of the aisle voiced concern
about sweeping legislation that would regulate e-mail
marketing, and this bipartisan substitute addresses those
concerns.
Specifically, the substitute would create a new misdemeanor
criminal provision to address the issue of technical fraud.
Technical fraud includes forging or falsifying header and
return information, thereby concealing the sender's identity.
Those who send fraudulent e-mail or pornography often use
technical fraud to conceal their true identities. Furthermore,
technical fraud is used to defeat Internet service providers'
and computer users' e-mail filters, preferences, and other
technologies designed to block unwanted e-mail.
All of the witnesses who testified before the committee,
the Federal Trade Commission in other testimony, and the Ad Hoc
Working Group on Unsolicited Commercial E-Mail, which reported
to the FTC in July 1998, all support public policies which
address fraudulently concealing one's identity.
The substitute, however, does not address generalized
concerns about unsolicited commercial e-mail, and the
substitute does not contain many of the unprecedented and
disproportionate enforcement provisions contained in H.R. 718.
The Wilson bill utilizes almost every legal enforcement
tool known to lawyers to regulate and to litigate issues
relating to unsolicited commercial e-mail. These provisions are
disproportionate to the harm or damage caused by spam.
In addition to a complicated, cumbersome, and punitive
regulatory regime, the Wilson bill contains two unprecedented
provisions which would empower the Internet service providers
to write Federal law. First, an ISP's unsolicited commercial e-
mail policy could be enforced by a private right of action,
State attorneys general, and the Federal Trade Commission. The
second provision would deem an ISP policy a Federal regulation
rule under Section 18 of the Federal Trade Commission Act.
There is no requirement that the ISP policy be open to the
public for comment, as are Federal Trade regulation rules under
the Administrative Procedures Act. Thus, approximately 5,000
ISPs could write different policies, enforced by myriad legal
actions, without due process afforded by traditional rules and
by law. The committee's research has uncovered no precedent for
these provisions, and I believe them to be unnecessary and may
raise constitutional issues.
I am also skeptical of the regulation of online commerce,
including e-mail marketing. H.R. 718, if not changed, would be
the first major Federal regulation of online commerce. Congress
should be cautious when considering new regulations of e-
commerce.
Congress has always supported and encouraged Internet
commerce in several ways. The e-signatures bill and the
Internet access tax moratorium were affirmative signals that
Congress wanted the efficiencies of the Internet to bring
choices, competition, and needed information to consumers.
Electronic commerce is still in its infancy. Business models
are constantly changing to find the right formula for success
over the Internet.
For example, banner ad revenue has fallen almost as much as
the stock prices of many dotcoms. Marketing, no matter how
annoying, is integral to the success of commerce, including
electronic commerce. Members on both sides of the aisle have
raised serious concerns about regulating e-mail marketing and
its impact on the growth of commerce, and I am convinced that a
go-slow approach is needed during this time of great
technological and market change.
Another concern about the regulation of e-marketing has to
do with proportionality. I am concerned about making a Federal
case out of a mere annoyance. Congress should carefully
consider proposals to unleash the FTC, State attorneys general,
and the trial bar on U.S. businesses for sending un-
commercial--unsolicited commercial e-mail. I believe that we
should do what we can to address fraudulent e-mail, but also
believe that we need to be careful and cautious about
regulating e-mail marketing.
We should not lump e-mail fraud, e-mail pornography, and e-
mail marketing all in the same category. They are demonstrably
different, and we should address the problems that actually
cause harm or damage. Congress should avoid falling victim to
the law of unintended consequences, particularly because
Internet commerce is still in its infancy. The substitute
forces on the issue of--focuses on the issue of fraud, which is
an appropriate area for government action.
[The statement of Mr. Sensenbrenner follows:]
Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a
Representative in Congress From the State of Wisconsin
The amendment in the nature of a substitute that all Members have
before them is the product of bipartisan cooperation between the
majority and minority, and I appreciate the work of all Members on this
bill. Judiciary Committee Members on both sides of the aisle voiced
concerns about sweeping legislation that would regulate e-mail
marketing and this bipartisan substitute addresses those concerns.
Specifically, the substitute would create a new misdemeanor
criminal provision to address the issue of technical fraud. Technical
fraud includes forging or falsifying header and return information,
thereby concealing the sender's identity. Those who send fraudulent e-
mail or pornography often use technical fraud to conceal their true
identities. Furthermore, technical fraud is used to defeat Internet
service providers' and computer users' e-mail filters, preferences, and
other technologies designed to block unwanted e- mail. All of the
witnesses who testified before the Committee, the Federal Trade
Commission (FTC) in other testimony, and the Ad-Hoc Working Group on
Unsolicited Commercial E-Mail, which reported to the FTC in July 1998,
all support public policies addressing fraudulently concealing one's
identity.
The substitute, however, does not addresses generalized concerns
about unsolicited commercial e-mail and the substitute does not contain
many of the unprecedented and disproportionate enforcement provisions
contained in H.R. 718. The Wilson bill utilizes almost every legal
enforcement tool known to lawyers to regulate and litigate issues
relating to unsolicited commercial e-mail. These provisions are
disproportionate to the harm or damage caused by spam. In addition to a
complicated, cumbersome, and punitive regulatory regime, the Wilson
bill contains two unprecedented provisions which would empower Internet
service providers to write federal law.
First, an ISP's unsolicited commercial e-mail policy could be
enforced by private right of action, state attorneys general, and the
Federal Trade Commission. The second provision would deem an ISP policy
a ``federal trade regulation rule'' under section 18 of the FTC Act.
There is no requirement that the ISP's policy be open to the public for
comment as are federal trade regulation rules under the Administrative
Procedures Act. Thus, the approximately 5,000 ISP's could write
different policies enforced by myriad legal actions without the due
process afforded by traditional rules and law. The Committee's research
has uncovered no precedent for these provisions, and I believe they are
unnecessary and may raise constitutional issues.
I am also skeptical of the regulation of on-line commerce,
including e- mail marketing. H.R. 718, if not changed, would be the
first major federal regulation of online commerce. Congress should be
cautious when considering new regulations of e-commerce.
Congress has supported and encouraged Internet commerce in several
ways. The E-signatures bill and Internet access tax moratorium were
affirmative signals that Congress wanted the efficiencies of the
Internet to bring choices, competition, and needed information to
consumers. Electronic commerce is still in its infancy. Business models
are constantly changing to find the right formula for success over the
Internet. For example, banner ad revenue has fallen almost as much as
the stock prices of many dot-coms. Marketing, no matter how annoying,
is integral to the success of commerce, including electronic commerce.
Members on both sides of the aisle have raised serious concerns about
regulating e-mail marketing and its impact on the growth of commerce,
and I am convinced that a go-slow approach is needed during this time
of great technological and market change.
Another concern about the regulation of e-mail marketing has to do
with proportionality. I am concerned about making a federal case out of
a mere annoyance. Congress should carefully consider proposals to
unleash the FTC, state attorneys general, and the trial bar on U.S.
businesses for sending unsolicited commercial e-mail.
I believe we should do what we can to address fraudulent e-mail,
but also believe we need to be careful and cautious about regulating e-
mail marketing. We should not lump e-mail fraud, e-mail pornography,
and e-mail marketing all in the same category. They are demonstrably
different, and we should address the problems that actually cause harm,
or damage.
Congress should also avoid falling victim to the law of unintended
consequences, particularly because Internet commerce is still in its
infancy. The substitute focuses on the issue of fraud which is an
appropriate area for government action. Again, I want to I urge my
colleagues to support the substitute and yield back the balance of my
time.
Again, I want to urge my colleagues to support the
substitute and now recognize the gentleman from Michigan, Mr.
Conyers.
Mr. Conyers. Thank you, Mr. Chairman. Our negotiations have
paid off again, and we now have a bill that really deals with
the major concern that this legislation brought with it
initially, and that was the First Amendment considerations by
being no more extensive than necessary. And we have resolved
those concerns by the elimination of a series of vague terms
and prohibitions and sentencing procedures which now would
require a second offense with over 10 or more e-mails to bring
about any imprisonment.
We've also excluded the language that would require that
718 has the force of law to Internet service provider policies
on blocking e-mails, which, again, was a First Amendment
consideration. And I think that we've got now a substitute that
people with differing philosophies can come together to deal
with a very annoying problem that now will be able to receive
congressional attention, and I think it'll remedy this problem
a great deal, and I urge my colleagues to accept this
substitute.
Chairman Sensenbrenner. Without--without objection, all
member's opening statements will be inserted in the record at
this point.
[The statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress From the State of Michigan
From scheduling the hearing to our negotiations over the past two
weeks, the Chairman has not only upheld this Committee's jurisdiction
but also worked with us to arrive at more reasonable legislation.
Immediately after the hearing, we took to him our concerns with the
original bill--he shared our concerns and was able to accept all of our
suggested changes. And that is why I am pleased to join him in offering
this substitute.
Our major concern was ensuring that the legislation complied with
First Amendment rights by being ``no more extensive than necessary.''
We resolved those concerns by eliminating vague terms and narrowing the
prohibition to commercial e-mails with ``materially false or
misleading'' header information. And the prohibition applies only to
ten or more e-mails, so that the transmission of just one e-mail is not
penalized.
We also eased the penalties themselves. The original bill provided
for a fine or even imprisonment for a first offense. Under the
Sensenbrenner- Conyers substitute, a first offense results in a
criminal fine with no possibility of imprisonment. For a second
offense, a violator can receive a fine, imprisonment for not more than
one year, or both. Moreover, there are no mandatory minimum sentences.
Finally, we excluded language from H.R. 718 that gave the force of
law to ISP policies on blocking e-mails. Not only did that language
raise First Amendment concerns, but it gave congressional imprimatur to
any ISP policy, even if that policy discriminated against competing
ISPs.
I'd like to thank the Chairman again for working with us to draft
this substitute and hope we can continue working together when the spam
bills reach the floor and possibility go to conference.
Chairman Sensenbrenner. Are there amendments? The gentleman
from North Carolina.
Mr. Coble. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Coble. And I will not utilize my entire 5 minutes, but
a concern's been raised that the legislation before us may
produce the unintended consequence of prohibiting intellectual
property owners attempting to protect their rights from sending
electronic notices to infringing parties. Now, I'm satisfied
that the nature--the amendment in the nature of a substitute to
H.R. 718 alleviates this concern. Still, we will continue to
monitor H.R. 718 as it moves forward to ensure that
intellectual property owners may use electronic mail as a means
of protecting their property.
The Digital Millennium Copyright Act, which Congress passed
in 1998, made great progress in protecting intellectual
property by applying traditional laws to the digital
environment. However, the protection in the DMCA would be
compromised, in my opinion, if intellectual property owners
were not able to pursue Internet pirates and infringers. And if
the gentleman from California, the ranking member of the
Subcommittee on Courts, Internet, and Intellectual Property,
would like to add further, I will happily yield to him.
Mr. Berman. Mr. Chairman, I thank the gentleman for
yielding, and I agree entirely with him that it is critical
that intellectual property owners be able to police their
property on the Internet. The anti-spam legislation in all
forms was not intended--in any of its forms was not intended to
injure legitimate business interactions. Therefore, I'm
encouraged that the amendment in the nature of a substitute
being offered by the Chair and ranking member takes care of the
intellectual property concerns. We just want to make sure as
the bill moves along that property owners--we keep these
intellectual property owners in mind as we move forward with
this anti-spam legislation. And I yield back.
Mr. Coble. I'll reclaim my time, Mr. Chairman, and yield
back my time.
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Massachusetts seek recognition?
Mr. Frank. To strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Frank. Mr. Chairman, I agree that the original bill
went too far. I was a cosponsor, and I think it was broader
than was wise. In particular, giving legal force to the
policies of the multiplicity of independent service providers
obviously was just not a very good idea. And I'm going to vote
for the substitute because it's better than nothing, but I am
concerned that it does not go far enough. And I have a question
for those who worked on the substitute and others who are
knowledgeable.
In the original bill, one provision which seemed to me
useful was allowing people to notify senders of their objection
and for them then to have a right not to get further
transmissions from that individual. What will the status of
that policy be if we just adopt the substitute? There was a
right to object to unsolicited mail and ask that it not be sent
again.
Now, you helped us by giving--making sure the address is
right, but will you have the right, if you get correctly
return-addressed mail, to say please don't send this to me
anymore? And I would yield to anyone who could answer that.
Chairman Sensenbrenner. Would the gentleman yield?
Mr. Frank. Yes.
Chairman Sensenbrenner. The substitute deals with fraud. It
does not--it does not deal with normal business practices,
similar to the Postal Service. You know, if somebody sticks a
stamp on a letter and addresses it to you, you know, it's
delivered to your mailbox.
Mr. Frank. Well, I appreciate that----
Chairman Sensenbrenner. What happens after it gets there is
up to you.
Mr. Frank. Well, I understand that. I do think unsolicited
mail is easier to deal with than unsolicited e-mail, which can
cause a clog and you get a kind of Gresham's law in which the
bad drives out the good when you have got to sort through a
lot. And I regret the absence in the substitute of a provision
that would allow people, having once been solicited, to tell
the person who had solicited them not to do that again. We've
followed that practice in some other areas of financial
privacy, and I think that model is a good one. I don't think it
interferes with First Amendment rights at all. And as I said, I
do think being the recipient of e-mail can be more of an
intrusion than the recipient of other mail which you can simply
throw out and don't have to sort through. Sorting through e-
mail can be a problem. I've had complaints about this.
So I do--I appreciate the fraud part, and I do agree that
718 went too far, particularly with regard to the independent
service providers. But I think we are leaving people
insufficiently protected, and it does seem to me people who
notify----
Mr. Goodlatte. Would the gentleman yield?
Mr. Frank.--sent them the material ought to have a right to
say no.
Yes, I'll yield to the gentleman from Virginia.
Mr. Goodlatte. I thank the gentleman for yielding. As you
may know, I have offered legislation on this matter as well,
and I share the gentleman's concern. My concern with regard to
what you're talking about--and I agree, we should have
ultimately some provision that provides for the ability to
request that your name--that you not be re-solicited, if you
will. But it is in the remedies portion of that. I don't want
to have a proliferation of lawsuits or whatever as a result of
that.
So I would be happy to continue to work with the
gentleman----
Mr. Frank. Well, I thank the gentleman for that. Yes, I
agree that probably a mandatory minimum sentence to which we
resort all too quickly would probably not be appropriate,
although the inappropriateness of mandatory minimum sentences
has not deterred us sufficiently in the past.
And I would be glad to work with the gentleman on that in
terms of other penalties. It might be that you had to spend 3
hours a day reading all your own e-mails. I can think of some
others.
But on that assurance, as I said--well, I'm going to vote
for the bill, anyway, and I'm not prepared with any
alternative. But I'm glad to hear that because I do think we
ought to be able to help people protect themselves from
having--from getting flooded and having their ability to read
what they want to read crowded out by what they don't want to
read, which is a different situation than the mail. I'd yield
again.
Mr. Goodlatte. If you'd yield further, the reality here
with this type of circumstance is that the Internet service
providers are what people really have to depend on to help them
fend off this enormous and rapidly growing flood of this type
of e-mail. And I'll be offering an amendment shortly that will
help in that regard as well.
Mr. Frank. I thank the gentleman. I yield back.
Chairman Sensenbrenner. Are there amendments?
Mr. Goodlatte. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Goodlatte.
Mr. Goodlatte. Mr. Chairman, I have an amendment at the
desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment offered by Mr. Goodlatte to the
amendment in the nature of a substitute to H.R. 718. On page 2,
after line 19, insert the following: (c)----
Mr. Goodlatte. Mr. Chairman, I'd ask unanimous consent that
the amendment be considered as read.
Chairman Sensenbrenner. Without objection, so ordered.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Goodlatte. Thank you, Mr. Chairman.
And, Mr. Chairman, let me start, in lieu of an opening
statement, by saying that I thank you for holding this markup
and congratulate you for the very narrowly tailored substitute
that you are offering that I think goes a long way toward
addressing this problem without encountering some of the
proliferation of litigation and micromanagement of our
commercial enterprise system, and goes a long way to avoiding
the problem of legitimate uses of commercial e-mail that help
make things easier for consumers and help make them aware of
things, including issues related to copyright, as the gentleman
from North Carolina mentioned, that I think are very important.
I would also note that this is a growing problem. I hear on
a weekly basis from constituents at home about their concern
about spam. It is growing exponentially. And I do think we need
to take measures to solve this problem, so I also commend the
gentlewoman from New Mexico for the legislation that she
offered. I think, however, this--this alternative moves us
closer to the objective we're trying to seek.
I have an amendment----
Ms. Lofgren. Would the gentleman--I'm sorry.
Mr. Goodlatte. I have an amendment that is intended to make
this process more effective. And the fact of the matter is that
right now law enforcement agencies are not going to give this
problem the kind of attention that most of my constituents,
most of all of our constituents would like them to give it.
They are overtaxed in terms of their commitment to various
enforcement measures, and this is not going to get as high a
priority as I would like to see.
We have an amendment that will give the Internet service
providers the ability to help protect the consumers, and they
have an incentive to do this because it causes enormous
problems on their systems. It can call--cause smaller ISPs to
crash when they're overloaded with spam, and it certainly hurts
their business reputation. They are, in effect, the carrier who
is providing this service to people who use e-mail.
So this amendment will help to give them a very narrowly
tailored cause of action. It does not give individuals a
private right of action, but it does give the ISPs a narrowly
tailored private right of action to enforce this. There is a--
--
Ms. Lofgren. Would the gentleman yield?
Mr. Goodlatte. Let me finish my statement. Then I'll be
happy to yield.
There is a very narrowly tailored precedent for this in the
Telephone Consumer Protection Act of 1991, which was enacted in
response to the overwhelming volume of unsolicited faxes, spam
faxes. You can all remember the complaints that came out about
that when people wanted to offer spamming of all kinds of
commercial advertisements over your fax machines. While there
are some exceptions to my statement, generally you don't get a
lot of unsolicited commercial spam over your fax machine, and
the reason is this Telephone Consumer Protection Act of 1991
that helped to ensure compliance with these sorts of consumer
protection laws. It had a $10 per violation--has, it's current
law, $10 per violation, up to $500,000 statutory damage
provision, and it has not led to a proliferation of lawsuits.
It's had the opposite effect because it has worked to deter
improper conduct and ensure better compliance with the law.
And that's exactly what this amendment is intended to do as
well, and I would urge my colleagues to adopt it, and I'd be
happy to yield to the gentlewoman from California.
Ms. Lofgren. Thank you, Mr. Goodlatte.
In reading this amendment, I certainly understand the
origin of the concern. My desire is to legislate as little as
possible in the area of the Internet, and I think you feel
similarly. And so the concern I have is whether this is
necessary when it is possible for ISPs to bring a trespass
action and protect themselves in that way.
Mr. Goodlatte. Well, reclaiming my time, I understand that,
and they definitely do have that right. The problem is that
they have very little--remember, they're doing this as a
service to their customers, and they have very little incentive
to do it if, when they go to court, they have experienced very
little by way of actual damages to themselves. And that's what
happens when they simply bring----
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Goodlatte. I would be happy to yield.
Chairman Sensenbrenner. Let me say I think this amendment
is an improvement to the bill. I'm not completely convinced
that we don't need to further refine the amendment before this
bill goes to the floor. But I think that the real meat of this
amendment is the statutory damages provision where the ISP does
not have to prove actual damages. You know, here in Section
2(B) of the amendment, it's $5 per violation, not to exceed a
total of a million, except that if during a 1-year period
somebody sends out in excess of 20 million items of spam, then
there's no such limit on liability.
So I think that this makes it pay for the ISP to go to
court to try to police its own self.
Ms. Lofgren. Would the gentleman----
Chairman Sensenbrenner. Without objection, the gentleman's
given 2 additional minutes.
Mr. Goodlatte. I'd be happy to continue to yield.
Ms. Lofgren. The question I have is--I mean, we're talking
about two goals here, if I'm understanding correctly. One is to
incentivize ISPs to bring actions to deter unsolicited spam,
and the second issue is to give remedies to ISPs who crash
because of the volume, which is really the trespass case.
So I'm just not sure that we need to--I mean, that's why we
have a delete button. I mean, I don't know that I'm yet
convinced that we need to incentivize ISPs to bring action
against----
Mr. Goodlatte. I think this is far superior to the
competing bill, which would----
Ms. Lofgren. Oh, I don't--I don't disagree with that.
Mr. Goodlatte.--incentivize everyone to bring actions. This
narrowly tailors it, and the evidence from the previous law,
the Telephone Consumer Protection Act, has been that it does
not incentivize action but, rather, it incentivizes people to
not send unsolicited commercial e-mails. And, remember, this
ties into the main portion of the chairman's substitute, so it
relates to fraudulent actions as well.
So this is a very, very narrowly tailored provision.
Ms. Lofgren. I should have noted, before I made any
comment, that I do very much appreciate that the substitute as
well as this amendment is a considerable improvement over the
underlying bill, and I do acknowledge that, although I do still
have questions, and I thank the gentleman for yielding.
Mr. Berman. Would the gentleman yield?
Mr. Goodlatte. I would be happy to yield to the gentleman
from California.
Mr. Berman. Could the gentleman illustrate just what are
the damages to an Internet service provider from conduit which
would violate Subsection (A) of the amendment?
Mr. Goodlatte. In many instances, an overload of spam can
cause the server of the Internet service provider to crash, and
that can have very substantial loss of all kinds of advertising
revenue, of harm to their business reputation and so on. But in
many instances, they are not heavily harmed themselves, but
their customers are harmed by being overloaded with e-mail,
many of which is of a fraudulent, illegal character.
And if we simply wait for people to report to the various
law enforcement agencies to attempt to enforce this and not
give the Internet service providers, who are really the carrier
in this case, the incentive to do this, what you wind up having
is no action taken at all to address this problem. So this
really adds some teeth to our legislation, and I think makes
it, frankly, more competitive with the measure that passed the
full House of Representatives last year by a 427 to 1 vote.
Mr. Berman. So, in effect, this is to give sort of real
meaning to what we're trying to discourage through the
provision by providing a relatively easy way to remedy the
problem.
Mr. Goodlatte. Without causing a proliferation of
litigation----
Mr. Berman. Thank you.
Mr. Goodlatte. It is narrowly targeted----
Mr. Frank. Would the gentleman yield?
Mr. Goodlatte. Yes, I would.
Mr. Frank. I just had a question. Is this going to be
precedential now, giving real meaning to what we do? I wonder
if that is something we are going to follow, and----
Mr. Goodlatte. No, I have cited the----
Mr. Frank.--it can be very complicated.
Mr. Goodlatte. We've already given real meaning in the
past.
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. Okay. The gentleman from Virginia
is recognized for 5 minutes.
Mr. Scott. Mr. Chairman, I rise in support of the
amendment, but I had some questions to ask about what it does.
It's been suggested that this, the amendment in the nature of a
substitute with the amendment, will stop the flood of
unsolicited e-mails. But the way I read it, it doesn't stop
anything except anonymous or where the return address is
misleading. Truthful e-mail, where it's coming from the vendor
himself, and they properly identified, it seems like it's
unlimited under the amendment in the nature of a substitute and
the amendment. There's no limit to the amount; is that right?
Mr. Goodlatte. If the gentleman would yield----
Mr. Scott. Yeah.
Mr. Goodlatte. That is partly correct, and that goes back
to what the gentleman from Massachusetts said about giving
individuals the right to be able to take their name off. That's
not in our legislation, but it may well be because it is
provided for in the legislation offered----
Mr. Scott. There's nothing in the bill that addresses fraud
or annoyance, one way or the other.
Mr. Goodlatte. Well, but here's the point. The Internet
service providers have mechanisms right now in place through
technology to help cut back on the flood of that type of
commercial e-mail. But what happens is that those who are bent
upon committing fraudulent activity, which the chairman's mark
addresses----
Mr. Scott. Well----
Mr. Goodlatte. If I could just finish that point.
Mr. Scott. You mentioned fraud. Where is fraud?
Mr. Goodlatte. The fraud is in the, in the chairman's
underlying----
Mr. Scott. I don't see fraud.
Mr. Goodlatte. You have to look at the chairman's
substitute.
Mr. Scott. I'm looking at it. I don't see fraud. I see
materially false and misleading. So, if you have the wrong
address, whether it's fraudulent or not, if you have your right
address and you're annoying people, that's no problem, but
false and misleading as to the identity of the person means
anonymous----
Mr. Goodlatte. If the gentleman would yield, what commonly
happens with this problem is that people steal other people's
identification and use that to send the spam because the
Internet service provider is able to detect large blocks of
data being submitted, and what happens is there is they're able
to block that. But if you break it down into a lot of smaller
blocks, using other people's identity that you have falsely
used, you are then able to circumvent the system. This is
targeted at that activity.
Mr. Boucher. Would the gentleman from Virginia yield?
Mr. Goodlatte. I yield to my colleague from Virginia.
Mr. Boucher. I thank the gentleman for yielding.
The question that the gentleman from Virginia has asked is
how is the bill effective in addressing the situation where the
spammer has not falsified any of the header information, where
he's using his own address? And the answer is that the Internet
service providers have now begun to use software that can
detect large volumes of e-mail that originate from a common
source simultaneously and the software used by the ISP
correctly interprets that e-mail to be spam. And so that filter
employed by the ISP is sufficient to keep that spam from
reaching the recipient.
What the spammers have now started to do, in order to
defeat that software, is change in each of the items of e-mails
that goes out and each of the items of spam that is sent a
little bit of the header information. The origination
information may be altered in each subsequent message. The time
that it is sent may be altered in each subsequent message just
sufficiently to defeat the software that is used by the ISP as
the filter.
And what the legislation that the gentleman from Virginia,
Mr. Goodlatte, has offered, which I am pleased to co-sponsor,
and what his amendment, which I strongly support, would help to
implement, is a means of criminalizing the way in which
spammers are now defeating the ISP's software because it would
say that you cannot falsify any of the header information. It
is a sound approach. It entirely addresses the concern that my
friend, to my left, from Virginia--that is where he normally
sits, on my left--has raised, and I think it is the right way,
in the most minimalist possible fashion, to address the genuine
problems associated with spam.
And I thank the gentleman for yielding.
Mr. Scott. Reclaiming my time, Mr. Chairman. I think
there's a typo at the bottom of Page 1, lines 15 and 16,
``such'' is mentioned twice, and I think that could probably be
taken out by unanimous consent.
I yield back.
Chairman Sensenbrenner. The question is on----
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner.--the adoption of the Goodlatte
amendment.
For what purpose does the gentleman from North Carolina
seek recognition?
Mr. Watt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. Mr. Chairman, unless I'm missing something here,
we have started with a bill that was designed to protect
consumers from annoying spam and have ended up with a bill that
really doesn't do anything to help consumers be protected from
annoying spam. And while this is a better bill than--probably
drafted better, it does less. And this amendment, while it is
better than nothing, doesn't give any remedy to the ultimate
customer, which is, I mean, we didn't start off necessarily to
protect the ISPs. I thought we started off this bill to protect
customers.
So, unless I'm missing something here, let me just ask Mr.
Goodlatte a question. In the--in the phone context, is it only
the phone company that can file a lawsuit against somebody who
keeps calling you, and you tell them to quit calling or is it
the customer?
Mr. Goodlatte. I don't know the answer to that. I suspect
it may also include the customer. However----
Mr. Watt. Okay. But that's the parallel here. We've given
a--your amendment gives a cause of action to the phone company,
the service provider, but no cause of action to the customer.
Mr. Goodlatte. Wood the gentleman yield?
Mr. Watt. I'll yield.
Mr. Goodlatte. I understand the gentleman's point. However,
in no way, shape or form is an Internet service provider to be
compared with the phone company which takes a complete hands-
off approach to what is going over its lines. The Internet
service provider very much right now is very dedicated to
controlling the amount of spam that goes over their system, and
so we're--they're the best tool, far better than the individual
consumer who, for $5, is not going to go to court to protect
themselves against spam. But the Internet service provider
faces a bigger problem.
Mr. Watt. Then what's the problem with giving an individual
customer the right to file a cause of action? I mean, that's
the ultimate protection we have. And, you know, we can
criminalize this stuff, you're absolutely right. The criminal
authorities are going to do absolutely nothing in this context.
The ISP may or may not do anything, but the ultimate
beneficiary of this bill ought to be the customer, it seems to
me. And----
Mr. Goodlatte. I understand the gentleman's concern, but I
do not believe that will be an effective remedy. It's a far
more effective remedy to have the ISP----
Mr. Watt. Let me see if I can get this----
Mr. Goodlatte.--power to protect the consumer.
Mr. Watt. Let me see if I can get this squarely before us,
Mr. Chairman. I have an amendment to the Goodlatte amendment at
the desk.
Chairman Sensenbrenner. The gentleman has been recognized
to strike the last word. You know, you've got to offer your
amendment at the beginning.
The gentleman from California--well, the gentleman from
North Carolina still has the time.
Mr. Watt. I ask unanimous consent to offer the amendment.
Chairman Sensenbrenner. Without objection, and the clerk
will report the amendment. The clerk is reporting the Watt
amendment.
The Clerk. Amendment offered by Mr. Watt to the Goodlatte
amendment to the amendment in the nature of a substitute to
H.R. 718. On Page 2, after line 19, insert the following: ``(c)
Private Right of Action--''
Mr. Watt. Mr. Chairman, I ask unanimous consent the
amendment to the amendment be considered----
Chairman Sensenbrenner. Without objection, so ordered.
[The amendment follows:]
Watt Amendment To Goodlatte Amendment
To H.R. 718
Offered by Mr. Sensenbrenner and Mr. Conyers
On page 2, after line 19, insert the following:
``(c) Private Right of Acton.--
``(1) Actions authorized.--A provider of Internet access
service or a customer of such provider, if otherwise permitted
by the laws or rules of a court of a State, may bring in an
appropriate court of that State, or, if such laws or rules do
not so permit, may bring in an appropriate Federal court, an
action to recover for actual or statutory damages, as provided
in subsection 2, and for costs, as provided in subsection 3.
``(2) Award of Damages.--A person committing a violation of
subsection (a) is liable to a provider of Internet access
service or a customer of such provider for either--
``(A) the actual damages suffered by the provider of
Internet access service; or
``(B) statutory damages, as provided in this paragraph. At
any time prior to final judgment in an action, a
provider of Internet access service may elect to
recover an award of statutory damages for each
violation of subsection (a) in the sum of $5 per
violation, not to exceed a total of $1 million:
Provided, That, during any one-year period for which
the defendant has transmitted in excess of 20 million
unsolicited commercial electronic mail messages, no
such limit on liability shall exist.
``(3) Attorneys Fees.--In any action brought under paragraph
(1), the court may, in its discretion, require the payment of
the costs of such action, and may assess reasonable costs,
including reasonable attorneys' fees, against any person found
to have committed a violation of subsection (a).''.
Chairman Sensenbrenner. And the gentleman from North
Carolina is recognized for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman. I hope this came out
good enough on the copy because I wrote it in.
Basically, what I'm doing, in two places, one on the first
line, on the first line of subparagraph (c), I'm inserting
language that would give a customer the same right to a cause
of action as the Internet access service provider.
And in paragraph (2), also, subparagraph (2), I'm inserting
that same, the same language.
Ms. Lofgren. Read it, Mel, because you can hardly read it.
What is it, ``or a customer--''
Mr. Watt. It says, ``A provider of Internet access service
or a customer of such provider,'' and that gets inserted on--in
that first line, and it gets inserted in the second line of
subparagraph (2).
Ms. Lofgren. Mr. Chairman?
Mr. Watt. Now, maybe--maybe this will never be used, but I,
I mean, if I'm a customer, I think all of this is designed for
the benefit of the ultimate customer. The Internet was not
designed for the ISPs, the--it wasn't, I mean, any more than
telephones were designed for the telephone company. Now maybe
that's not a good parallel. I acknowledge that there is a
difference, but I don't think criminalizing this is going to
make a snip of difference in what happens in our life. The
criminal law is never going to address this issue, and I don't
think Internet service providers are going to be the ultimate
people who address this issue. If you don't give the right to
the ultimate customer, then I think it's never going to be
addressed.
Mr. Goodlatte. Mr. Chairman?
Chairman Sensenbrenner. Would the gentleman yield back the
balance of his time? Would the gentleman yield back? Mr. Watt?
Mr. Watt. I do, yes, Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from Virginia, Mr. Goodlatte, seek recognition?
Mr. Goodlatte. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Chairman, I will have to oppose this amendment because
I think it's going to put us back in the direction of the major
complaint about the legislation passed out of the Commerce
Committee that it could provide a proliferation of litigation.
I don't know if it will or not. It provides for attorneys' fees
so somebody may think that because it provides for attorneys',
even if they only have $5 in damages, that they're going to go
ahead and bring a lawsuit for that purpose. I don't think that
is necessary.
And I think the clear distinction here between this and the
right of action that I don't know, but I assume may exist,
under the earlier law related to faxes is that Internet service
providers do have a very strong incentive, I do believe they
will be in there aggressively combating those who flagrantly
abuse this law and who do a multitude of faxes to thousands of
people, no one of whom has any real incentive to take the
action here, but they clearly do, and I think that we can
narrowly provide for a way to give consumers very good
protection without being accused of opening up--this up to a
proliferation of litigation, and therefore I have to oppose the
amendment to the amendment.
Ms. Lofgren. Would the gentleman yield?
Mr. Goodlatte. I yield to the gentlewoman.
Ms. Lofgren. Thank you for yielding.
I agree that this amendment offered by my esteemed
colleague is one that I cannot support, and it's not because I
don't care about consumers versus ISPs, it's we should not
legislate where there is no need for passing laws. And right
now the technology is more efficient to protect us than a
Federal law. I mean, there are free sites that if you e-mail
the offense--the offending spam to them for free, they will
block all further spam.
I mean, there's--we don't need to pass a law. We don't need
to clog up courts because the technology is way ahead of what
we're doing here, and therefore I, although I appreciate the
motivation of the amendment, I don't think it's an appropriate
thing to do, and I still have reservations about the underlying
Goodlatte amendment, at least as to 2(B).
But I yield back, and I thank the gentleman for yielding.
Mr. Issa. Mr. Chairman?
Mr. Goodlatte. I yield to the gentleman from California.
Mr. Issa. I'll make it very quick. I see that there is no
reason, again, for this amendment to Mr. Goodlatte's amendment.
However, trying to kill two birds with one stone, for my
colleagues, please understand from my experience specifically
in this industry that what Mr. Goodlatte is trying to do here
is to provide a legal remedy for that which cannot easily be
technologically caught, and that is extremely important because
this is a tool that the ISPs do not have today, and that is the
proliferation of ``sneaky'' mail, if you will, this fraudulent
mail.
By giving the ISPs the ability, on behalf of their
customers, to provide this type of protection for themselves
and their paying customers, we do what we really need to do,
while both the ISP and the individual customer, with Outlook
and other e-mail-receiving devices, have the ability to screen
those pieces of mail which have a consistent address after the
first time.
So, between the ISP and the consumer, we have tremendous
power in the technology today, and I recommend that you look
favorably on the Goodlatte amendment because it takes the one
piece of the puzzle that doesn't exist today, it closes that
loophole, and I believe we will all benefit very quickly from
this change in the power of the ISP. And then if it doesn't
work completely, I will be the first to come back to this body
and say we have to do more. But I believe this will take care
of 99 percent.
Ms. Jackson Lee. Would the gentleman yield? Would the
gentleman yield?
Mr. Issa. I'd be happy to yield to the gentlewoman from
Texas.
Ms. Jackson Lee. Let me, first of all, I support your
amendment, Mr. Goodlatte, and taking the gentleman's comments,
the prior speaker's comments, Issa, comments about the value of
this particular amendment to the ISP community, why not give
the same limited leverage, if you will, to a customer, as Mr.
Watt's amendment has offered?
And I guess I will ask the question and yield back to you.
Does your amendment do anything, and this collective management
amendment, do anything on the issue of pornography? Because
when the witnesses were before on the other bill, the Wilson
bill, they were talking about that. When I say ``the
witnesses,'' the members who were presenting their bills, they
were talking about that. Can you help me on both the question
as to why we wouldn't want to give the same privilege to the
customer, and also my last point is whether or not this is a
criminal action. I heard Mr. Boucher say that, and I don't see
it. It looks like a private right of action.
I yield back to the gentleman.
Mr. Goodlatte. Well, my time has expired. If the gentleman
would yield--if the chairman would yield me an additional
minute.
Ms. Jackson Lee. Can I yield him an additional minute?
Chairman Sensenbrenner. Without objection, the gentleman is
recognized for an additional minute.
Mr. Goodlatte. I thank the chairman.
Ms. Jackson Lee. I yield back. Thank you, Mr. Goodlatte.
Mr. Goodlatte. In response to the gentleman, yes, my
amendment will be a very effective tool to combat pornography
on the Internet because it will, that is one of the prime
violators of this false identification that is used for people
to spam other people. You'll hear some friends of yours or
constituents say, ``Well, I got somebody who I thought was a
friend of mine sent me pornographic material over the
Internet.'' Well, they didn't send it to you. Someone stole
their identification and sent it to them, and this is a very
serious problem. The Internet service providers want this
amendment. They strongly support this amendment in order to be
able to combat that.
My reservation about going a step further of giving it to
the individual consumer is that the criticism we have faced is
that we're going to provide for a proliferation of litigation,
particularly where we allow for attorneys' fees in this
amendment. And, therefore, people who have a $5 statutory
damage I don't think ought to be bringing an action like that.
Let me consoli--they can also--they can complain to the
Internet service provider. They can also complain to the
various Government enforcement agencies.
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Berman. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from California, Mr. Berman, seek recognition?
Mr. Berman. Thank you, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Berman. Yes. The gentleman from Virginia is persuading
of the wisdom of his amendment for two reasons: One is there is
actual damages to the Internet service provider when the volume
of mail as a result of this kind of false header, spam mail
causes the server to crash, but then the ISP can also be sort
of a surrogate plaintiff for all the annoyances and
inconveniences and other damages that the individual consumers
face.
It's hard for me to quite understand why giving the
individual consumer the right of action automatically results
in proliferation. You seem to think it is the attorneys' fees
part of that that makes that so. But the one flaw in this is
you have two provisions in here, actual damages and statutory
damages. Actual damages that the ISP suffers they collect for,
if it's not greater than the statutory damages. Now, as
surrogate, they collect what could be substantial amounts of
funds from the offender on behalf of the consumer, but the
provision to return it to the consumer isn't included in this
amendment.
So it almost--this becomes a new revenue source for them
for damages they didn't suffer, the consumer suffered.
Mr. Goodlatte. If the gentleman would yield, that problem
has been anticipated. That's why we put a, I think, a low cap
on this. It's comparable to the low cap that is on the other
previous bill.
Mr. Berman. Oh, I see.
Mr. Goodlatte. And the hope is that it will be a deterrent
rather than an incentive to do that.
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Massachusetts seek recognition?
Mr. Frank. To strike the requisite number of words.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Frank. I want to speak in favor of the gentleman's from
North Carolina's amendment. The gentlewoman from California
argued that the gentleman from North Carolina's amendment is
unnecessary because of technology, and I think she acknowledged
her uncertainty about her feelings about the underlying
amendment. I would think her argument would be, if it's
technologically unnecessary for the Watt amendment, then the
Goodlatte amendment is also technologically unnecessary, and I
appreciate the consistency with which she stated her point. But
it does seem to me it applies with equal force, both to the
underlying amendment and the secondary amendment.
And I'm all for the secondary amendment. I think we're
getting kind of ``big brotherly'' here. The notion is that the
consumer need not worry. Her independent service provider will
take care of her, and I think people may have developed this
kind of warm relationship with their ISP, and they may be
prepared to designate the ISP as their next friend and have the
ISP be the defender of their rights. But in those cases where
people aren't prepared to yield their rights to the ISP, I
think they ought to be able to retain them.
And, also, it seems to me there are a couple of points
here. One, the gentleman from Virginia correctly said the ISP
can step in when this becomes a flagrant abuse. Well, what's a
flagrant abuse as an ISP as a whole may be a higher threshold
than a flagrant abuse to an individual group of individuals. It
may well be that particular individuals are targeted by
particular marketing operations, but this doesn't rise to the
level of interference with the ISP.
It is possible for an individual to be given serious
problems with an excess of unwanted commercial e-mail long
before it's going to crash the system. And so it does seem to
me that the logic of giving this right of action to protect,
with all of the safeguards that the gentleman said. The
gentleman from North Carolina's amendment plugs into the
gentleman from Virginia's scheme. So the caps, and the low
level, the $5, that's all in there.
I just think that there is really very little argument for
the notion that the interest of the individual consumers and
the ISP will be so substantially identical that they can be
merged and that the individual can have that right given to the
ISP.
There is also the case that there may be some other
commercial interests involved between the ISP and some of the
marketers. Maybe there are other factors here. But the general
point is I think the gentleman from Virginia has a very
thoughtful scheme. It is a reasonable way to go.
The flaw I think is that it assumes that there is, as I
said, an identity or a virtual identity between the individual
consumer and the ISP. And some of the arguments he gave about
why the ISP will jump in, and clearly they would, don't apply.
There may be consumer problems that don't reach that level. So
I think that the gentleman from North Carolina's amendment is a
very reasonable one, and I intend to support it.
Ms. Hart. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the
gentlewoman from Pennsylvania, Ms. Hart, seek recognition?
Ms. Hart. Mr. Chairman, to address the issue that was
raised by----
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Hart. Thank you, Mr. Chairman. I move to strike the
last word.
In response to the issue raise by Ms. Jackson Lee regarding
none of these amendments addressing the issue that was brought
up at our hearing regarding pornography, I do have an amendment
at the desk to offer that may address her concerns.
I yield back the balance of my time.
Ms. Jackson Lee. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the
gentlewoman from Texas seek recognition?
Ms. Jackson Lee. To strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Jackson Lee. Let me, the, as I indicated, I am
supporting Mr. Goodlatte's amendment, but I'm also supporting
Mr. Watt's amendment. What I would suggest to Mr. Goodlatte is
the same attributes attributed to the ISP community, which is
that they would not be necessarily litigious, unnecessarily;
meaning just to litigate. They have a cause. And I would say to
you that users likewise, consumers, will pose or be in the same
category, that their real concern is to be able to use the
Internet unfettered and to not be attacked, if you will, by a
proliferation of unnecessary or unsolicited intrusions.
I would offer to say that this makes your amendment better,
if you can respond to their concerns, as well, and I just
looked at my colleague, Mr. Weiner, and he turned and said
class action. He'll probably speak on it himself. But the point
is there are a variety of ways that you can handle this. I
think that we are doing a much better task of responding to the
concerns if we allow the opportunity for the consumer to
likewise press their cause along with the ISP community.
The other point is I was not clear--I asked this question
before--this is a private right of action, as I understand it.
This is not a criminal action. And if anyone has a response to
that, and I heard my colleague from Virginia, Mr. Boucher, I
thought, say criminal. I don't want to put words in his mouth,
but this looks like a private action amendment versus criminal
charges. And if anyone has a basis of correcting that, I will--
--
Mr. Weiner. The base bill----
Ms. Jackson Lee. I'm sorry. I'll yield to Mr. Weiner.
Mr. Weiner. I think the reference was that the base bill
has a criminal charge.
Ms. Jackson Lee. The base bill. Thank you very much for
that clarification.
In any event, let me just say that I think that the
amendment should include protections for consumers, as well,
and I would support both amendments.
I yield back.
Mr. Weiner. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from New York, Mr. Weiner, seek recognition?
Mr. Weiner. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Weiner. Thank you, Mr. Chairman.
What troubles me in this debate about the Goodlatte
amendment is we seem to be misunderstanding who the victim of
spamming is and who we intended to be addressed when the
original, when H.R. 718 was considered in this committee. The
victim is the recipient of the e-mail. The victim who has very
little recourse that I think we're trying to address with all
of the legislation is that person.
I don't dispute Mr. Goodlatte's point that the ISP has the
incentive. I would argue they also have the tools to defend
themselves. There has been, several members here have talked
about the technological advantage that have allowed ISPs to
foil spammers that they wanted to stop. This seems to me the
ISPs have a technical problem that is going to find, in
eventuality, a technical solution.
Mr. Goodlatte has been forceful, and I think very clear-
minded, in this committee in reminding us that very often
technical problems need technical solutions. The victim of
spamming is the individual. And I have to tell you my concern
about the Goodlatte amendment is that, frankly, the idea that
this is going to weed out fraud I think might be oversold. I
think it's going to allow ISPs to harass its customers that it
doesn't like.
Materially false or misleading, that's not a very narrow
standard. If someone puts bob at mailhouse.com or joe at
mailhouse.com, and there's no one named Joe there or Joe Smith,
and there's no one named Joe Smith or administrator, I don't
think that this necessarily solves the problem that we seek to.
I'm concerned that we're trying, with the Goodlatte
amendment, to give the ISPs something that they should be doing
technologically, and all its indications are that they are. The
victims of spamming is the individual who gets spammed. And I
think that if you're going to give some civil course of action,
there is no--there hasn't been any argument from the other
side, from the opponents of the amendment to the amendment,
about why it is they shouldn't have that right.
You can say, well, that there's a greater incentive on the
ISPs to go out and do it. Well, perhaps that's right. It's not
really their--it's not really their problem to solve, and if it
is, they're the ones that have the technology to be able to
solve the problem, and I expect they will.
Mr. Cannon. Would the gentleman yield?
Mr. Weiner. Certainly.
Mr. Cannon. May I just point out I think, referring back to
the gentlewoman from California when she said that's the reason
we have a delete button, people on the Internet are not
victims. This is not a matter of victimization. Whatever your
conclusions about this amendment, I don't think we need to be
thinking in terms of people whom we've empowered with
technology as being victims.
Thank you.
Mr. Weiner. Oh, I mean, obviously there's got to be a
victim and a crime, and we have a bill here that--crime----
Mr. Cannon. This bill does not have crime. That's the
underlying bill, as you pointed out just a moment ago.
Mr. Weiner. I don't know. It says here in the committee
report that the first spamming offense is punishable by a fine
up to--of a fine up to $100,000 if death does not result.
I mean, spamming is pretty bad. It rarely results in death.
Mr. Watt. Will the gentleman yield?
Mr. Weiner. The second offense can trigger a fine,
imprisonment of not more than 1 year or both.
It sounds to me, Mr. Cannon, that that is a crime.
I would be glad to yield.
Mr. Watt. I would say to the gentleman that the underlying
civil action is a civil action for the same misconduct that the
underlying bill covers. It doesn't cover anything beyond the
underlying bill. So this is not a generalized cause of action
just because you get spammed. This is a cause of action for the
misconduct that occurs under the underlying bill for which you
have a criminal penalty, and now you turn around and say that
this criminal activity doesn't even justify a civil cause of
action.
Mr. Weiner. If I could just reclaim my time, very briefly.
Another thing that's complex about this is materially false and
misleading to whom? To the recipient? The ISP is then going to
step in, and then they're going to bring a case to court
saying, ``Well, the ISP found it misleading,'' or are they
going to have then bring in the recipients of the spam and get
them individually on the stand and say, ``Well, did you find
this misleading? Was this materially false, as far as you're
concerned?''
The ISP is not the victim here. So to give them the right
to go to court when they have other tools at their disposal;
i.e., a program which manages to stop this program.
I yield back my time.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from North Carolina, Mr. Watt to the
amendment offered by the gentleman from Virginia, Mr.
Goodlatte.
Those in favor will signify by saying aye.
Opposed, no.
The nos appear to have it.
Mr. Watt. Could we have a----
Chairman Sensenbrenner. A recorded vote is ordered.
This in favor of the Watt amendment will, as your names are
called, vote aye. Those opposed, will be vote no, and the clerk
will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Gekas?
Mr. Gekas. No.
The Clerk. Mr. Gekas, no. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Barr?
[No response.]
The Clerk. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Hutchinson?
Mr. Hutchinson. No.
The Clerk. Mr. Hutchinson, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Graham?
[No response.]
The Clerk. Mr. Bachus?
[No response.]
The Clerk. Mr. Scarborough?
[No response.]
The Clerk. Mr. Hostettler?
[No response.]
The Clerk. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no. Mr. Flake?
[No response.]
The Clerk. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Frank?
Mr. Frank. Aye.
The Clerk. Mr. Frank, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
[No response.]
The Clerk. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. No.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Lofgren. No.
The Clerk. I'm sorry?
Ms. Lofgren. I said no.
The Clerk. Oh, I'm sorry. Ms. Lofgren, no.
Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there additional members in the
room who wish to cast/change their vote?
The gentleman from Alabama?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no.
Chairman Sensenbrenner. Anybody else? If not, the clerk
will report.
The gentleman from Arizona, Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no.
Chairman Sensenbrenner. The gentleman from Georgia, Mr.
Barr?
Mr. Barr. No.
The Clerk. Mr. Barr, no.
Mr. Chairman, there are 10 ayes and 17 nays.
Chairman Sensenbrenner. And the amendment to the amendment
is not agreed to.
Ms. Lofgren. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from California,
for what purpose do you seek recognition?
Ms. Lofgren. I have an amendment to the amendment at the
desk.
Chairman Sensenbrenner. The clerk will report the amendment
to the amendment.
Ms. Lofgren. I ask unanimous consent that the amendment be
considered as read.
Chairman Sensenbrenner. Well, let's take a look. The clerk
will report----
The Clerk. Amendment offered by Ms. Lofgren to the
amendment offered by Mr. Goodlatte to the amendment in the
nature of a substitute to H.R. 718.
In Subsection (c)(2)----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The amendment follows:]
Chairman Sensenbrenner. And the gentlewoman from California
will be recognized for 5 minutes.
Ms. Lofgren. Thank you, Mr. Chairman.
In looking at the underlying Goodlatte amendment, I guess
I'm becoming convinced that there's value in providing a very
clear cause of action for an ISP that has been damaged through
the volume of e-mails. And I mentioned earlier an instance, it
wasn't an ISP issue, but it was a situation akin to this, where
a company in my county proceeded on a trespass cause of action
successfully because the intrusion on its system actually
caused damage to their servers, and I think that that is fair
enough. But it's not necessarily clear that that cause of
action is provided for in every State, and certainly under
Federal law. And so I think there is value in providing the
clear protection for someone damaged in that matter.
However, I am not convinced that Section (2)(B), which I
would strike under this amendment to the amendment, is
necessary. It seems to me that it would provide the opportunity
for individuals who did not suffer much damage to go in and
recover large amounts of money. Now, I understand there's a
million-dollar cap, but to me half a million dollars is real
money too. I mean, that's a lot of money, at least in my
household. And so I'm not sure that it's--that's necessary.
I also think, and I think this would be difficult to prove,
but there was a lot of discussion about providing rights for
the recipients of e-mail, that they are the ones who really
should be the subject of our concern. And so in my amendment, I
would suggest that we, in addition to the ISPs who could bring
action, we add e-mail recipients in Section (c)(1) and allow
individuals, as well as ISPs, to go to court and prove and
recover their actual damages, not a statutory scheme.
Now I'm not sure how an individual is going to prove that
they had an actual damage from spam, but if they can do so,
more power to them. I think that this proposal would really
codify the trespass type of cause of action, would allow for
ISPs to correct their actual damages from attacks or really
service access problems, and would avoid the concern that I
have, which is that we are legislating in an area that we don't
need to legislate, where the technology will provide more
protection than the Federal law.
I don't think that we ought to be passing laws
unnecessarily in the area of the Internet, and I hope that
the----
Mr. Conyers. Would the gentlelady yield?
Ms. Lofgren. I would certainly yield to the gentleman.
Mr. Conyers. Well, I think that this is a more perfect
solution really. I've been concerned about the ISPs getting
away with a million dollars in damage awards. These guys have
good lawyers too. So let's, let's turn it back to the e-mail
user, to the person that got spammed, and I think you'd do both
of these in a very commendable way. I'm going to support the
amendment.
Ms. Lofgren. Thank you. Mr. Chairman----
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The time belongs to the gentlewoman
from California.
Ms. Lofgren. Could I yield to Mr. Goodlatte, who I think
is----
Mr. Goodlatte. I seek my own time.
Ms. Lofgren. All right. I will yield to the gentleman.
Mr. Nadler. Would the gentlelady yield?
Ms. Lofgren. Yes.
Mr. Nadler. As I read your amendment, you do partially what
Mr. Scott wanted to do--I'm sorry, what Mr. Watt wanted to do.
I don't know why I did that--what Mr. Watt wanted to do. But
then you eliminate the actual damages, I mean, the statutory
damages.
Ms. Lofgren. Correct.
Mr. Nadler. And you limit it to actual damages. Can you
tell me under this, if the bill were amended as you want, what
the measure of damages from a spam is? How do you measure those
damages?
Ms. Lofgren. Well, that's why I'm saying I'm not sure how
an individual proves up actual damage from receiving an e-mail
that they can delete, but I will tell you how an ISP would
prove actual damages, which is the volume itself causes their
computers to crash, requires them to go out and purchase ten
more servers because they can't handle the volume of unwanted
e-mail. That's the kind of case that's been put together on the
trespass cases, and I think that's fair and legitimate.
Mr. Nadler. Can I ask you a further question?
Ms. Lofgren. Certainly.
Mr. Nadler. If the bill were banning unsought e-mail, I
understand your measure of damages for the ISP, but is
banning----
Chairman Sensenbrenner. The time of the gentlewoman has
expired.
Mr. Nadler. Mr. Chairman, could I ask unanimous consent for
one additional minute?
Chairman Sensenbrenner. Without objection.
Mr. Nadler. Thank you.
But the bill bans unsolicited fraudulent e-mail. How would
the--and the measure of damages is they have to buy an extra,
the mach--the computer or whatever, how would they know when
the headers are fraudulent?
Ms. Lofgren. Well, the Goodlatte amendment to the amendment
I think creates--it goes beyond the underlying bill. But I
would note that the underlying amendment put together by Mr.
Conyers and the chairman really relates to fraudulent headers,
not to fraudulent content. And I agree with that because just
because something's on the Internet doesn't make it exempt from
the underlying fraud statutes already in the criminal code. We
don't need to create another criminal code for the Internet.
I believe my time has expired.
Chairman Sensenbrenner. The gentlewoman's time has once
again expired.
The gentleman from Virginia, Mr. Goodlatte?
Mr. Goodlatte. Thank you, Mr. Chairman. I move to strike
the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Goodlatte. Mr. Chairman, I must reluctantly oppose this
amendment. I have great respect for the gentlewoman, but I
think the gentleman from New York's point is exactly the case
here, and that is that by removing the statutory damages, we're
taking out the provision that is based upon the precedent of
the 1991 law that gives the Internet service provider the
incentive to take an action here in the cases that don't
involve circumstances where their system crashes, and they can
actually show some significant damage.
But in those cases where, for example, you have the
pornographic spammer that we've been talking about earlier, we
are effectively taking away the incentive for them to act in
response to the complaints of their customers to take a
collective action. We're not expanding the number of cases of
litigation which she also does by adding the individual
recipient in here. But then if they can't show any actual
damages under the law, they're not going to take an action and
neither is the Internet service provider.
So I think this would have the contrary effect of what many
on the other side of the aisle spoke about earlier of wanting
to have some action taken. They wanted to go a step further
than I wanted to go, and many others wanted to go, and actually
give that statutory damage to the individual, as well as to the
ISP. But now we're going to go the opposite direction and not
have any incentive for any action to be taken, and we will not
have this added tool, which is based upon a law, a 1991 law,
that has worked well to have a strong disincentive.
The gentlewoman is right, a million dollars can be
considered a lot of money. The people we want to consider it a
lot of money are these fraudulent spammers. We want them to
say, ``Well, I'm not going to risk a million dollars, so I'm
not going to do this activity any more,'' and that's why I must
oppose the amendment.
Ms. Lofgren. Would the gentleman yield for----
Mr. Goodlatte. I would be happy to yield.
Ms. Lofgren. As the gentleman knows, because we've had an
opportunity to discuss this outside of the public hearing, I do
believe that there is a legitimate issue relative to sexually
explicit e-mails that I believe should be tagged so people can
be alert, so that they can delete them and not open them. But I
think that the proper remedy for that kind of damage or assault
is to go directly towards a requirement of labeling material
that's unsuitable for minors rather than creating a statutory
scheme.
Mr. Goodlatte. Reclaiming my time. I respect that, but
we've had several court challenges on our ability to define
exactly what that is that must be labeled. Here we don't get
into that issue, and there are plenty of other types of
fraudulent, false, misleading spam, where headers are stolen
and so on, that doesn't involve pornography, that consumers
would also want to have addressed.
Mr. Frank. Would the gentleman yield?
Mr. Goodlatte. I've had the frustration--I will in just a
second. I've had the frustration myself of trying to
unsubscribe when I've gotten unsolicited commercial e-mail and
have found that there's no way to find who it was that sent it
to me because they used a false e-mail address, and this tool
will address that.
I yield to the gentleman from Massachusetts.
Mr. Frank. I thank the gentleman.
The question of pornography has come up or sexually
oriented mail, and the gentlewoman referred to having markings
on it, and I know we're going to get an amendment on that. I
just want to point out, and people said, ``Well, if it's got
the marking on it, you can then delete it.''
I would also point out, for those people who find that
they're getting more e-mail than they can read, the marking
might also be interpreted for them as a reason to open it. So
we ought to be very clear that the markings on the pornography
can go both ways. There might be a signal that this is
something you want to read or there might be a signal it's
something you don't want to read, it seems to me, that's
somewhat content neutral.
Chairman Sensenbrenner. Would the gentleman yield back?
Mr. Goodlatte. I yield back. Thank you.
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from North Carolina seek recognition?
Mr. Watt. Thank you, Mr. Chairman. First of all, I would
like to----
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. I'd like to request a division of the----
Chairman Sensenbrenner. How does the gentleman propose to
divide the amendment?
Mr. Watt. I wish to divide the first part, the striking of
subparagraph (B) from the rest of the amendment, and I
obviously would speak in favor of the rest of the amendment.
It, more artfully, does----
Chairman Sensenbrenner. Okay. The question will be divided
in the amendment in front of the members, the first paragraph
which begins, ``In subsection (2),'' through the end of (B),
closed paren, period, is the first part that will be voted on,
and then the rest of the Lofgren amendment will be the second
part that's voted on.
And the gentleman from North Carolina is recognized for 5
minutes.
Mr. Watt. Thank you, Mr. Chairman. I will be brief.
I've already spoken on the second part. I think Ms.
Lofgren's wording is much more articulate than my wording was
in the prior amendment. It is essentially the same concept,
however.
But once you, if we were to adopt the second part,
basically, you would--the first part would eviscerate whatever
cause of action there would be because the amount of effort it
would take--well, I can argue both sides.
Mr. Conyers. Would the gentleman yield?
Mr. Watt. Let me argue both sides, as a good lawyer does. I
could argue, number one, that it might increase the amount of
litigation because, basically, any kind of conceivable harm
could be the basis of a cause of action, but I think it's more
likely to wipe out all causes of action because the harm to any
individual would be so de minimus that it would be virtually
not in an individual's interests to file a cause of action.
Mr. Conyers. Would the good lawyer yield?
Mr. Watt. Yes. Yes, sir.
Mr. Conyers. Did the author seek a division?
Mr. Watt. Yes.
Mr. Conyers. She did.
Ms. Lofgren. No, I didn't.
Mr. Watt. I did.
Mr. Conyers. Oh, you did.
Mr. Watt. Yes.
Mr. Conyers. But the author of the amendment that you're
dividing, did she seek an amendment--a division?
Mr. Watt. No.
Mr. Conyers. Oh, she didn't. Okay. I thank the good lawyer.
Mr. Watt. I yield to Ms. Lofgren.
Ms. Lofgren. I would just note that unless we strike the
statutory damage section, I would oppose the rest of the
amendment because the whole point I'm trying to make is that if
there--I don't want a lot of litigation about e-mail that you
can delete. I don't think we ought to be creating a whole
Federal statutory scheme for a minor annoyance.
On the other hand, if you can prove that you have actually
been damaged, I think that having a clear cause of action, both
for individuals, as well as ISPs, is appropriate. And so I
think each member, my understanding of the rules has a right
under our rules to divide the question.
Chairman Sensenbrenner. The chair has already ruled that
the question is divisible----
Ms. Lofgren. Right.
Chairman Sensenbrenner. Because any member may demand a
division of the question if there are two separate and distinct
propositions. And in your amendment, there are two separate and
distinct propositions. One is to strike the statutory damage
and remedy and the other is to include recipients of e-mail as
parties who have standing to bring actions in the court.
Mr. Watt. Mr. Chairman, may I reclaim my time just briefly?
Mr. Frank. Parliamentary inquiry.
Chairman Sensenbrenner. The gentleman has got the time, and
you cannot take a gentleman from the floor with a parliamentary
inquiry. The gentleman from North Carolina may proceed.
Mr. Frank. Will the gentleman yield for a parliamentary
inquiry?
Mr. Watt. I'll yield to the gentleman.
Mr. Frank. I wonder whether it might resolve this situation
if, by unanimous consent, we retain the division, but vote it
in reverse order on the two propositions, so that the second
proposition was voted on first.
Chairman Sensenbrenner. Without objection, proposition two
will be voted on----
Ms. Lofgren. I object.
Chairman Sensenbrenner. Objection is heard, and the
gentleman from North Carolina----
Mr. Watt. Mr. Chairman, let me reclaim my time.
Chairman Sensenbrenner. You have some time left.
Mr. Watt. First of all, they say the definition of a good
compromise is one that is uncomfortable for both sides, and
maybe Ms. Lofgren has gotten us to a point where we are
uncomfortable with both sides. So maybe we ought to vote this
up or down.
I think the private cause of action is worth having in the
bill, even though--even subject to striking out the statutory
damages. So I want to ask unanimous consent to withdraw my
request for a division of the question.
Chairman Sensenbrenner. Without objection, so ordered.
Does anyone else demand a division of the question?
Going once, going twice.
[Laughter.]
Chairman Sensenbrenner. If not, the question is on the
adoption of the Lofgren amendment, in total, to the Goodlatte
amendment.
Those in favor will say aye.
Opposed, no.
The nos appear to have it.
Ms. Lofgren. Mr. Chairman, I'd ask a recall vote.
Chairman Sensenbrenner. The rollcall will be ordered. The
question is shall the amendment offered by the gentlewoman from
California, Ms. Lofgren, to the amendment offered by the
gentleman from Virginia, Mr. Goodlatte, be adopted?
Those in favor will signify, as your names are called, by
saying aye; those opposed, no. And the clerk will call the
roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Gekas?
Mr. Gekas. No.
The Clerk. Mr. Gekas, no. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Barr?
Mr. Barr. No.
The Clerk. Mr. Barr, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Hutchinson?
Mr. Hutchinson. No.
The Clerk. Mr. Hutchinson, no. Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye. Mr. Graham?
[No response.]
The Clerk. Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no. Mr. Scarborough?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
[No response.]
The Clerk. Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Frank?
Mr. Frank. Aye.
The Clerk. Mr. Frank, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
[No response.]
The Clerk. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there additional members in the
room who desire to cast their vote or change their vote?
The gentleman from California?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Chairman Sensenbrenner. Anybody else who wishes to cast or
change their vote?
[No response.]
Chairman Sensenbrenner. If not, the clerk will report.
The Clerk. Mr. Chairman, there are 12 ayes and 16 nays.
Chairman Sensenbrenner. And the amendment is not agreed to.
The question now is on the adoption of the Goodlatte
amendment to the amendment in the nature of a substitute.
Those in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
Goodlatte amendment is adopted.
Are there further amendments? The gentlewoman from
Pennsylvania?
Ms. Hart. Thank you, Mr. Chairman. I have an amendment at
the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Ms. Hart. Mr. Chairman, I move that the----
Chairman Sensenbrenner. Well, let's let the clerk start
passing the amendment out before members waive their rights.
Without objection, the amendment is considered as read.
[The amendment follows:]
Chairman Sensenbrenner. The gentlewoman from Pennsylvania
is recognized for 5 minutes.
Ms. Hart. Thank you, Mr. Chairman.
As I discussed briefly earlier, we did have a concern
raised at the hearing, as well as having been raised today,
about pornographic and sexually explicit materials being sent
via e-mail advertising. I've also heard similar complaints from
my constituents, both now as a Member of Congress and also as I
served in the Pennsylvania State Senate. I've also discussed
with other members here in this body that this is an issue, and
we ought to address it. I think it's appropriate to address it
in this bill.
My amendment is based on the same principles as legislation
that we passed in Pennsylvania, basically, to label such e-
mails. It is modeled after similar laws, postal laws, that
require sexually oriented material to be labeled when it runs
through the regular mail system.
It accomplishes several things. The amendment requires the
Attorney General to create an identifying mark in the e-mail,
to alert individuals to e-mails containing such sexually
oriented material.
It also requires any individual sending such e-mail to have
the proper identification such as has been discussed in Mr.
Goodlatte's amendment, otherwise that sender would face tough
penalties.
We also, in the amendment, define sexually oriented
material in a manner that has already been found
constitutional. It's in the current postal law, Title 39. The
amendment, I believe, Mr. Chairman, is a common-sense solution
to a serious problem. It is based on, as I mentioned, Title 39,
where the postmaster may prescribe that identifying marks be
placed on mail that include sexually oriented material.
The Supreme Court upheld this law as constitutional in the
case of Rowan v. United States Postal Department and a decision
was followed in the case of Pent R. Books v. United States
Postal Department. These laws have been effective in curbing
the amount of sexually oriented material. I think these laws
have been on the books for about 30 years. Basically, they cite
the right of the receiver of mail not to be forced to receive
sexually oriented advertising, sexually oriented materials
unsolicited.
I believe these principles can be effective in giving
families control over the type of information that is sent to
their e-mail accounts, the same way now they currently have
control over what's sent to their mail boxes. Individuals can
be alerted before opening these e-mails containing sexually
oriented material, as was referred to by the gentleman from
Massachusetts, but also I think it's important that they can
also use currently available filtering software to eliminate
these ads so that their children can be protected.
Currently, these programs are available and can prevent
families from accessing pornographic sites, but e-mail
advertisements containing pornographic material are often
missed by that type of filtering software.
I would encourage my colleagues to support the amendment.
Ms. Lofgren. Would the gentlelady yield for a question?
Ms. Hart. Yes, Mr. Chairman.
Ms. Lofgren. I am very interested in doing something in
this area, and in fact have talked to several members on the
other side of the aisle about bringing forward a separate bill
instead of an amendment.
The question I have is whether the definition on line 14 on
the first page has been tested in court. Is that part of
existing law and is it sufficiently unvague to avoid
constitutional defects, in terms of court decisions, do you
know?
Chairman Sensenbrenner. The answer to her question is it is
taken right out of the Postal Statute, which is 39 US Code
3010.
Ms. Lofgren. Thank you very much then. I am happy then to
support this amendment, noting that, unfortunately, Mr. Frank
is correct, 16-year-old boys all over the country will be
looking for the marks, but there is an opportunity at least to
alert people, and I yield back.
Mr. Weiner. Will the gentlelady yield? Will the gentlelady
yield?
Ms. Lofgren. The time is to Congresswoman Hart.
Ms. Hart. I will yield.
Mr. Weiner. Does the Attorney General or the Justice
Department have a position on your amendment?
Ms. Hart. No. We have actually shared this with the
Attorney General, but we have not--I actually am not married to
the idea of the Attorney General actually handling this,
although I think it's the best idea, it's the most direct.
Mr. Weiner. Is there any--is there any reason why this
couldn't be done under state law?
Ms. Hart. Pardon me?
Mr. Weiner. Is there any reason why it couldn't be done
under state law? Is there a problem inherent in the Internet
that makes that a difficult thing to do?
Ms. Hart. Well, we actually--it's a problem, obviously,
with enforcement if you handle it another way. You're just
going to have it so limited and so difficult, and spotty
enforcement. We'd actually passed a state law in Pennsylvania
that contained basically the same language, but, however,
obviously, it doesn't cover enough----
Ms. Lofgren. Mr. Chairman, could you give the gentlelady an
additional 1 minute?
Ms. Hart. I need to respond, first of all, to Ms. Lofgren--
--
Chairman Sensenbrenner. Does the gentlelady want an
additional 2 minutes or not?
Ms. Hart. Please. Yeah, Ms. Lofgren suggested that----
Chairman Sensenbrenner. Does the gentlelady want an
additional 2 minutes because her time is expired?
Ms. Hart. Yes, Mr. Chairman, thank you.
Chairman Sensenbrenner. Without objection, the gentlelady
is recognized for two additional minutes.
Ms. Hart. A comment was made regarding labeling that would
direct people to open such e-mails, but again, if there's a
minor living in the parents' home, those parents should have
control over their Internet, and would be able to use filtering
software to filter out such advertising, because of the label.
So they'd know to expect the label and be able to filter out
that advertising----
Ms. Lofgren. Would the gentlelady yield? In an ideal world,
I would love to believe that's true, but as the mother of a 16-
year-old son, who is a better programmer than I, those ideals
don't always work out that way.
But I do believe that this is a step in the right
direction. Support----
Ms. Jackson Lee. Would the gentlelady yield?
Ms. Lofgren. Sure.
Ms. Jackson Lee. I raised a question earlier, and I
appreciate the amendment, and wanted to--I'm going to support
the amendment because I think this whole idea of intrusive e-
mail that can be characterized as pornographic should be
addressed, even though we want parents to work on it as well.
I would hope the gentlelady would be open--I'd hope the
gentlelady would be open--it looks like this amendment may be
moving toward passage--to considering whether or not the
Attorney General is the best arbiter or decider of the marks,
and that we could work together on that. But in any event,
because I would want it to be done as expeditiously as
possible, but in any event, I think the idea of curbing this
electronic mail is a very good one, and I yield back.
Chairman Sensenbrenner. The time of the gentlewoman is once
again expired. The gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Mr. Chairman, with two boys not yet 16, I come
to this with a great deal of interest.
Chairman Sensenbrenner. And the gentleman is recognized for
5 minutes to express his interest.
Mr. Conyers. At least 5 minutes. Okay. There's probably no
more complicated or difficult area in law than obscenity, and
so I congratulate the gentlelady from Pennsylvania, but I want
to remind her that in 1989 the Supreme Court struck down the
FCC's dial-a-porn regulations. That Communication Decency Act
in 1996 to regulate obscenity on the Internet, was struck down,
again by the Supreme Court. The law successor, the Child Online
Protection Act from two congresses ago, is currently being
challenged in the Court as we speak. At the very least, we need
to examine this, work on it together, probably have hearings. I
want to do this thing with--I'm very anxious to do this, and
I'm sympathetic to the good purposes behind it, and maybe if we
just want to make everybody know that we're all good guys
working on this, we can do it anyway.
But this amendment is probably--more than probably at this
reading, likely to violate the First Amendment. And I'd be
happy to work on this. Since this is commercial speech, the
operative standard in the court is the Central Hudson test,
saying that there must be a substantial government interest
directly advanced by reasonable means in order to regulate
obscenity.
Now, there is----
Ms. Hart. Gentleman yield?
Mr. Conyers. There is less obtrusive technology which could
respond to the problem. For example, an entire software
industry built on filters, so that people can screen obscene
materials. Are we sure that these filters cannot mitigate the
problem before us? In addition, it's unclear what good the
marking requirement would accomplish since such marks, as
already been indicated, actually encourage opening this kind of
e-mail.
So the--so this proposal finally applies to unsolicited as
well as solicited e-mails. What does that carry with it? It
means that even person who want to receive these advertisements
will be subject to the requirements, and I think that the
Supreme Court, in its presently constituted----
Ms. Hart. Will the gentleman yield?
Mr. Conyers.--would find that this would be an unnecessary
burden. I yield to the gentlelady from Pennsylvania.
Ms. Hart. Thank you. First, to answer your question about
the Communications Decency Act, what they did state--what the
Court stated is that the burden was too broad, and if it could
be made less restrictive, which I believe this amendment does,
then I believe it would withstand a challenge. And also--that's
all. I yield back.
Ms. Lofgren. Would the gentleman yield?
Mr. Conyers. That's not sufficient, and I don't think it
would be sufficient. So we've got a huge problem here, folks,
and I'd like to encourage all of us to come together around
this and craft something that we can all agree on, rather than
toss it up at this hour, a few minutes before we're going to
break.
Mr. Watt. Would the----
Mr. Conyers. I yield to the gentleman from North Carolina.
Mr. Watt. I thank the gentleman for yielding. Wouldn't one
of the ways to establish and document the Government interest
be to have the hearings that you're talking about----
Mr. Conyers. Exactly.
Mr. Watt. And to build a congressional record in support of
that, which this amendment currently lacks.
Mr. Conyers. Yield to Ms. Lofgren.
Ms. Lofgren. Thank you. That's why--I had actually talked
to several members on the other side of the aisle about
proceeding separately. I think it's important that whatever we
do be upheld by the courts. I don't--I greatly respect the
ranking member. I do think that the labeling is quite different
than the prohibition, and I think that--I am willing to support
this amendment today, but I do think it's important that we
state that our motivation is to protect minors, that the
definition that is encompassed in this amendment is really to
allow for the protection of minors, it's not just about
obscenity, and then also to provide for notice, because there
are individuals--I mean if you get an e-mail, you click it, and
there may be some stuff that you just don't want to see, and it
should be up to the----
Chairman Sensenbrenner. The gentlewoman's time has expired.
Ms. Lofgren. I would ask that the----
Mr. Conyers. I ask for 1 minute.
Chairman Sensenbrenner. The gentleman from Michigan.
Mr. Conyers. Could I yield 5 seconds to Mr. Frank for a
quiip?
Mr. Frank. I just want to say that if we're going to have
those hearings, I hope we will advertise them appropriately,
because I wouldn't want people to wander in and be offended by
the material that would be at the hearings. The Attorney
General's----
Chairman Sensenbrenner. The staff is directed to put a
sign--or to make a sign to put on the door, ``offensive
material inside.''
Mr. Frank. ``May be heard.'' And no waiting--you've got to
wait in line personally. No hiring someone to get in.
[Laughter.]
Chairman Sensenbrenner. Now, that is a restriction on
commerce that I don't think we ought to get in.
Mr. Conyers. I yield to the gentlelady from----
Chairman Sensenbrenner. Let me poll the----
Ms. Hart. I thank the gentleman for yielding.
Chairman Sensenbrenner. Excuse me. Excuse me. The time has
expired.
Let me poll the committee to see how much longer this is
going on. How many people more wish to speak on this amendment?
One, two, three, four----
Mr. Conyers. Let's hold a hearing.
Chairman Sensenbrenner. Five. I know of an amendment to be
offered by the gentleman from Utah, Mr. Cannon. How many other
amendments are there? You have an amendment, Mr. Schiff?
Mr. Schiff. Yes, Mr. Chairman, I have three.
Chairman Sensenbrenner. The gentleman from Michigan has a
request.
Mr. Conyers. Could I courteously ask the gentlelady from
Pennsylvania, viewing how long this could go on, to withdraw
this amendment and allow us all to consult with you?
Ms. Hart. In light of the simplicity of the amendment, I
would prefer not to do that. Again, we've gotten into--if I
have a moment?
Chairman Sensenbrenner. Well, if this is the case, the
committee will be recessed until 2:00 o'clock. I would ask the
members to come back promptly at 2:00 because the sequential on
this bill expires on June 5th, which means that we have to
report the bill out on June 5, so that there is time for
members to file additional dissenting or minority views.
The committee is recessed until 2:00 o'clock.
[Recess]
Chairman Sensenbrenner. The committee will come to order.
At the time the committee recessed, pending was an
amendment to the amendment in the nature of a substitute
offered by the gentlewoman from Pennsylvania, Ms. Hart.
All those in favor of the Hart Amendment will signify by
saying aye.
Opposed, no.
Ms. Jackson Lee. What are the ayes about?
Chairman Sensenbrenner. We're ayeing or noing about the
Hart Amendment. Those opposed, say no.
Ms. Jackson Lee. Mr. Chairman----
Chairman Sensenbrenner. The ayes appear to have it.
Ms. Jackson Lee. I'm an aye, but a question.
Chairman Sensenbrenner. Okay. The ayes have it both
wholeheartedly and questionably, and the amendment is agreed
to. Are there further amendments?
Ms. Jackson Lee. Can I make a parliamentary inquiry?
Chairman Sensenbrenner. The gentlewoman will state her
inquiry.
Ms. Jackson Lee. This bill, Mr. Chairman, you--did you
indicate how fast this bill would move?
Chairman Sensenbrenner. No, I didn't. Our sequential
expires on June 5th, which means that we have to report the
bill out today in order to give the 2 days necessary for the
filing of additional supplemental minority or dissenting views,
and have the report filed the day that we get back from recess.
If we don't file a report today, we end up losing jurisdiction,
and everything we've done is for naught.
Ms. Jackson Lee. Thank you, Mr. Chairman. It will give me
time to work with Ms. Hart in her office on some issues that I
have. Thank you very much, Mr. Chairman.
Chairman Sensenbrenner. I have a feeling that there will be
a negotiation in the Rules Committee because we are somewhat
going down a different road than the Commerce Committee has.
The gentleman from California; for what purpose do you seek
recognition?
Mr. Schiff. Mr. Chairman, I have three amendments at the
desk.
Chairman Sensenbrenner. Which ones do you want?
Mr. Schiff. Amendments 1, 2 and 3.
Chairman Sensenbrenner. Do you want to do them en bloc?
Mr. Schiff. I think I prefer to do them separately. I think
that at least two of them will be very quick, Mr. Chairman.
Chairman Sensenbrenner. Which one do you wish to offer
first?
Mr. Schiff. Amendment No. 1.
Chairman Sensenbrenner. Well, I have 18, 19 and 20.
Mr. Schiff. This is 18, 19 and 22, Mr. Chairman.
Mr. Goodlatte. Mr. Chairman, I reserve a point of order.
Chairman Sensenbrenner. Well, you've got to pick one.
Mr. Schiff. Yes, 18.
Chairman Sensenbrenner. The clerk will report Schiff No.
18.
The Clerk. Amendment to the amendment----
Mr. Goodlatte. I reserve a point of order, Mr. Chairman.
Chairman Sensenbrenner. Point of order is reserved.
The Clerk. Amendment to the Amendment in the Nature of a
Substitute to H.R. 718, offered by Mr. Schiff.
At the end of the amendment----
Mr. Schiff. Mr. Chairman, request waiving the reading.
The Chairman. Without objection, the amendment is
considered as read, and the gentleman from California is
recognized for 5 minutes.
[The amendment follows:]
Mr. Schiff. Thank you, Mr. Chairman. This amendment very
simply requires that the Attorney General submit a report to
Congress providing an analysis of the effectiveness and
enforcement of the provisions of the act, and make suggestions
or modifications if necessary.
In light of the fact that the amendments to the original
bill reduced the penalties and changed the nature of the bill,
I think it all the more important to make sure that those
changes which reduced the penalties for violations, that we
have some measure of whether it's effective in that form. This
would simply require the Attorney General to report to
Congress, and I urge an aye vote.
Mr. Goodlatte. Mr. Chairman.
Chairman Sensenbrenner. The gentleman yield back the
balance of his time?
Mr. Schiff. I do, Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from Virginia seek recognition?
Mr. Goodlatte. Mr. Chairman, I withdraw my objection, and
support the amendment.
Chairman Sensenbrenner. The question is the adoption of
Schiff Amendment No. 1. Those in favor will signify by saying
aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
amendment is agreed to.
The gentleman from California?
Mr. Schiff. Mr. Chairman, on Amendment 019, this amendment
would simply express----
Chairman Sensenbrenner. Does the gentleman offer Amendment
019?
Mr. Schiff. Yes, Mr. Chairman.
Chairman Sensenbrenner. Clerk will report the amendment.
The Clerk. Amendment to the Amendment in the Nature of a
Substitute to H.R. 718, offered by Mr. Schiff.
At the end of the amendment, add the following----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read, and the gentleman from California is
recognized for 5 minutes.
[The amendment follows:]
Mr. Schiff. Mr. Chairman, this amendment simply
acknowledges that e-mails are international in nature, and any
action that we take in Congress has to be mindful of the fact
that people will be sending e-mails solicited and otherwise
from around the world. And this expresses the sense of
Congress, that the President should provide for the Federal
Government to engage and participate in governments around the
world, to develop internationally accepted and consistent
standards to address the issue of unsolicited commercial
electronic mail. I waive the balance of my time and urge an aye
vote.
Chairman Sensenbrenner. The gentleman from Virginia?
Mr. Goodlatte. Mr. Chairman, move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes
Mr. Goodlatte. Thank you, Mr. Chairman. Mr. Chairman, I
have some concerns about this amendment, and the reason is that
it goes beyond the scope of what the Chairman's mark I think
intended to encompass with regard to the type of unsolicited
commercial or electronic mail that we're dealing with. This is
broader than the scope of the narrowly crafted legislation that
is before the committee in terms of the fact that it covers
more than just the types of fraudulent and false and misleading
e-mails that are covered under the legislation, and therefore,
unless it's narrowed, I would be forced to----
Chairman Sensenbrenner. Would the gentleman yield?
Mr. Goodlatte. I would yield.
Chairman Sensenbrenner. I would like to join in the
opposition of the gentleman from Virginia. This rejects the
bipartisan compromise that deals with fraud and criminal
penalties, and gets this committee down the road of regulation,
which is something that the bipartisan compromise attempted to
avoid, so I would urge the rejection of this amendment.
Ms. Lofgren. Would the gentleman yield?
Mr. Goodlatte. I yield to the gentlewoman from California.
Ms. Lofgren. I join in concern over the amendment. I
appreciate the good motives behind the amendment, because
indeed, the author is correct, the Internet is an international
environment, but I think it does get into--at least down the
road, more of a regulatory approach than I think we're trying
to get.
And I would just note also that, unfortunately, in our
interface with some in the international community, they do not
have the same spirit of nonregulatory approach to the Internet
that is common here in the US. So it's not always a wonderful
experience to try and coordinate with our international
partners.
Mr. Goodlatte. Thank you. I yield back.
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Massachusetts seek recognition?
Mr. Frank. To strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Frank. Mr. Chairman, I noted your point that this
violates the bipartisan compromise, and I guess that makes it
about 100 percent for me. I haven't seen a bipartisan
compromise this year that I liked. I don't know when the word
``partisan'' took on negative connotations. I'm going to say
I'm not the world's most complete historian, but I tried hard
to think about a functioning democracy in modern times that
didn't have parties, and parties being necessary to democracy,
apparently. I don't understand why we're supposed to have them,
and then ignore them. And the fact that something is
bipartisan, I used to be neutral about it. Now I'm starting to
go negative.
But I want to support the gentleman's amendment, and I--I
hadn't fully understood this--the context I guess. I find
myself in this--more on the side of the bipartisan compromise
in the Commerce Committee than the bipartisan compromise in the
Judiciary Committee, because I do not think limiting ourselves
to fraudulently addressed mail is a sufficient answer. As I
said before, I do think they over reached with the ISP part,
but I think it's a perfectly reasonable thing.
And I have to say then, the gentlewoman from California,
the fact that other nations don't agree with us ought not to be
the basis on which we refuse to talk to them. I guess if people
agree with you, you probably don't have to talk to them. You
have--you know, we have to conclude very few treaties with
people who agree with us exactly. The whole notion of
international conversation is to try and bridge gaps. So I
think this is an important amendment, and I think it--I look
forward to those negotiations because some of us are going to
be trying to get something that's between the two bills, and
for that reason, I support this particular amendment.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from California, Mr. Schiff.
Mr. Schiff. Mr. Chairman----
Chairman Sensenbrenner. Those in favor will signify by
saying aye.
Those opposed no.
The noes appear to have it. The noes have it, and the
amendment is not agreed to.
Are there further amendments?
Mr. Schiff. Yes, Mr. Chairman.
Chairman Sensenbrenner. Then we will have to come back
after the last vote in this series. Please be prompt because we
need a reporting quorum of 19 members. Otherwise, we're going
to lose jurisdiction in this bill.
Mr. Frank. Parliamentary inquiry, Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Massachusetts.
Mr. Frank. If we lose jurisdiction, that means the Commerce
direction is the only one in the field?
Chairman Sensenbrenner. That's right. Are there further
amendments? If not----
Mr. Schiff. Yes, Mr. Chairman, I have one further
amendment.
Chairman Sensenbrenner. Well, then the committee will be
recessed until immediately after the last vote in this series.
Again, I ask the members to come back promptly so that we have
a reporting quorum. Otherwise we will lose jurisdiction.
And the committee stands recessed.
[Recess.]
Chairman Sensenbrenner. The committee will come to order.
When the committee recessed, the bill was open to amendment at
any point. The gentleman from Utah, Mr. Cannon.
Mr. Cannon. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to the Amendment in the Nature of a
Substitute to H.R. 718 offered by Mr. Cannon and Mr. Berman.
Page 2, line 19----
Mr. Cannon. Mr. Chairman, I ask unanimous consent that the
amendment be considered as read.
Chairman Sensenbrenner. Without objection. The gentleman is
recognized for 5 minutes.
[The amendment follows:]
Mr. Cannon. Thank you, Mr. Chairman. Since the advent of
the Internet, we have been given an incredible tool for both
communication and trade, the ability to send electronic mail
messages to one another. But as with any tool, it can be a boon
when used properly, or a burden when it is not. The reason
we're here today is just one of those burdens, unsolicited
commercial e-mail or spam. By far the number one complaint of
the vast majority of American Web users is their receipt of
spam. Clearly, a requirement to have accurate header
information is necessary so that the sources of unsolicited e-
mail can be identified and consumers are able to have their
addresses stricken from the spam list.
However, to ultimately resolve this problem, you must stop
the spammer from obtaining the e-mail addresses in the first
place. Many responsible websites pledge never to sell, rent or
lease their users' e-mail addresses. It seems, however, that
much spam is derived from harvested e-mail addresses from
various websites. As in the past year alone, AOL Time Warner,
e-Bay, Microsoft, Verizon, Register.com, and others have all
been harvested, much to the detriment of their relationship
with their users. Because no technology can completely protect
people against this kind of scavenging, a distinct chill is
being placed upon e-commerce. The sad fact is that American
consumers are becoming reluctant to engage in any commerce,
because they now feel that the Internet is not a safe place to
do business. They feel that their website cannot protect their
e-mail address.
That's why I'm offering an amendment to address this issue.
But adding a narrow prohibition against this kind of behavior,
my anti-harvesting amendment will help to eliminate consumer
frustration and would thus encourage e-commerce. The proposed
anti-harvesting amendment would create a cause of action for
website only when a person uses automated means to harvest e-
mails from a third-party website without that website's
consent, and with the intent to transmit spam to enable others
to--or to enable others to transmit spam.
The proposed amendment also includes a statutory damages
provision of up to $500,000. This type of statutory damages
provision will assist in making sure that harvesters do not
consider lower level finds as simply the cost of doing
business.
I'll face the efforts of my friend, Bob Goodlatte, the bill
being considered today, coupled with my anti-harvesting
amendment, will help eliminate spam. Taken together, this
package will add up to consumer confidence on the Internet. It
will also take--it will also be a step closer to the day when
and individual--an individual's e-mail address will be as
public or private, as the individual consumer wants it to be.
Without an anti-harvesting provision, only one-half of the spam
problem will be addressed. I accordingly offer this amendment
and urge my colleagues----
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Cannon.--to adopt this harvesting language. Yes.
Chairman Sensenbrenner. I thank the gentleman for yielding,
and appreciate his concerns, and would endeavor to work with
him on this and other issues. You should know that many have
concerns about this amendment because it is argued the
amendment prejudices the database and privacy debates. Every
week interested parties meet with the staff from this committee
and that of the Energy and Commerce Committee to work out
issues involving the database bill. This amendment may confuse
that process, and thus, in my opinion, is not appropriate at
this time, although it would be appropriate at sometime in the
future.
Furthermore, the amendment may impact the privacy debate
because it prohibits the collection of information for
marketing purposes. The substitute avoids the pitfall of
regulating electronic commerce, including e-mail marketing.
I appreciate the gentleman's efforts on this issue, and
will further review the matter and work with you as this
legislation makes its way through the legislative process, but
again, I do not believe that this is the proper time and place
to offer the amendment.
Mr. Cannon. If the Chairman will work with us----
Mr. Berman. Would the gentleman yield?
Mr. Cannon.--we will be happy to continue working on it,
and reclaiming my time, I'd like to yield to the gentleman from
California, Mr. Berman.
Mr. Berman. Yes. Thank you, Mr. Chairman. I never--the
argument about it prejudicing the database bill, I never fully
understood, but the one thing I know is, having gotten some
reports about that process, it's already confusing.
But I just--I appreciate the gentleman yielding, and I just
wanted to agree with him that there should be an effort to deal
with this at the source, and I support the anti-harvesting
amendment. There is a belief out there that the robot
harvesting, about which Mr. Cannon speaks, is covered by the
Computer Fraud and Abuse Act already, known as Section 1030.
Under this act, however, the plaintiff must prove that he or
she has suffered at least 5,000 in damages or that his or her
computer systems have been harmed.
It's difficult, however, to calculate the harm done to the
reputation of the harvested website or to the entire system of
e-commerce when consumers receive fraudulent e-mail, and they
unfairly hold the harvested website--the harvested website, and
by extension, e-commerce as a whole, responsible.
So I support the amendment because it gets at the root of
spam. Spammers can't send their unsolicited e-mail messages
without addresses to send their messages to.
I appreciate the gentleman yielding, and I yield back.
Mr. Goodlatte. Would the gentleman yield?
Mr. Cannon. I ask unanimous consent for an extra 2 minutes,
Mr. Chairman?
Chairman Sensenbrenner. Without objection.
Mr. Cannon. Who asked for time?
Mr. Goodlatte. I did.
Mr. Cannon. Oh, certainly, Mr. Goodlatte.
Mr. Goodlatte. I appreciate the gentleman yielding, and I
share his concern about the nature of--of this problem. I also
share the concern addressed by the Chairman, in that this does
effectively broaden the scope of what we're trying to do,
because again, this goes beyond the issue of fraudulent, false
and misleading e-mails covered under the narrow substitute that
the Chairman has offered, and therefore, if the gentleman would
withdraw, I certainly also commit to trying to find a way to
address this problem.
Mr. Cannon. Great. Thank you. Let me just point out that on
the recess, I--one of my staffers had an e-mail from--that was
with a fraudulent header, Diane at abcmxk, something odd like
that. When you clicked on the--on the button to de-list, you
got a most vulgar site coming up. In fact, I think it called
itself filthy, but it was awful. This is a serious problem, and
with the assurance of the Chairman and the gentleman from
Virginia, I would withdraw my motion.
Mr. Berman. We now think better of abc.
Chairman Sensenbrenner. The amendment is withdrawn. Are
there further amendments? The gentleman from California.
Mr. Schiff. Thank you, Mr. Chairman. I'd like to offer
Amendment 0.22.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to the Amendment in the Nature of a
Substitute to H.R. 718 offered by Mr. Schiff.
Page 1, line 12----
Mr. Schiff. Mr. Chairman, request waiving reading of the
amendment.
Chairman Sensenbrenner. Without objection, the gentleman is
recognized for 5 minutes.
[The amendment follows:]
Mr. Schiff. Thank you, Mr. Chairman. This amendment would
simply require that in unsolicited commercial e-mail, in the
subject field, the textual message would include ADV: for
advertisement. This would allow the consumer who gets a flood
of e-mails, to look at the list of e-mails and identify,
without having to go through the laborious process of opening
each one of them, which are unsolicited e-mails and which are
not. Then the consumer can make the decision whether to spend
his or her time opening them or simply deleting them, or employ
a filtration device that will automatically delete them if the
consumer doesn't want to get unsolicited e-mails. It is, in
that respect, I think, infinitely preferable both to compiling
a list of people who don't want to receive e-mails and forcing
direct marketers or others to check a list. It's also, I think,
less cumbersome than a opt-out or an opt-in process. It is, in
fact, California law already.
The honorable woman from Pennsylvania introduced an
amendment which passed--just passed this committee, pertaining
to sexually explicit materials. California law in fact does
what that gentlewoman's amendment does, and what this amendment
does. It requires ADV to appear in advertisements, and ADLT
when those advertisements are not intended for those under 18.
This is really designed to address the broader problem of
unsolicited e-mail, and I think does it in probably the least
restrictive means possible.
Unless there's any objection that this exceeds the
bipartisan scope of what the committee is addressing, it does
so no more and no less than the gentlewoman's amendment from
Pennsylvania.
I think that this offers really a minimal investment or
requirement on behalf of the marketers. On the other hand, it
provides a great opportunity for consumers to make decisions
for themselves about how much unsolicited e-mail they wish to
read. I would urge your aye vote and reserve the balance of my
time.
Chairman Sensenbrenner. The gentleman has to yield back his
time under the 5-minute rule. The gentleman yield back?
Mr. Schiff. Yes, Mr. Chairman.
Chairman Sensenbrenner. The chair recognizes himself for 5
minutes in opposition to the amendment.
This amendment regulates e-mail marketing. There's no
question about it. And it disadvantages electronic commerce
because it has a different standard for the identifying of
advertising materials on the Internet than if one sent
advertising through the mail.
The bipartisan compromise between Mr. Conyers and myself
decided to have a minimum or nonexistent regulation of the
Internet, but instead go down the line of having misdemeanor
penalties for those who violate the purposes of the law. This
goes back to the scheme of regulation in the Wilson Bill, and I
believe ought to be rejected.
I yield back the balance of my time.
Mr. Goodlatte. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia.
Mr. Goodlatte. Move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Goodlatte. Thank you, Mr. Chairman. I won't use that
amount of time. I want to join with you in opposition to the
amendment, which I know is well intentioned by the gentleman
from California, but I think it raises additional First
Amendment questions regarding the commercial speech doctrine.
Commercial speech can indeed by regulated differently than
other forms of free speech, but there are limitations on what
can be done in that regard, and I do not believe that the
requirement of labeling all commercial communications as such
is within the scope of that doctrine, and therefore, I think
that's one additional reason not to support this amendment. But
it also does drastically expand the scope of the legislation
that this committee is crafting, and therefore, I would oppose
the amendment.
Ms. Lofgren. Would the gentleman yield?
Mr. Goodlatte. I would be happy to yield.
Ms. Lofgren. I would--I concur with the judgment made by
yourself and the Chairman, and would note that to the extent
that there is any burden on the First Amendment by
Congresswoman Hart's amendment, it is counterbalanced by our
motivation, which is to prevent minors from being exposed to
indecent material. There is no such--which is a
constitutionally permissible goal. There is no such
countervailing rationale in non-explicit e-mails. And I would
thank the gentleman for yielding.
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Goodlatte. Yes.
Chairman Sensenbrenner. The gentleman from Alabama, for
what purpose do you seek recognition?
Mr. Bachus. On the amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Bachus. Mr. Chairman, and members of the committee, I
will tell you that as a user of the Internet, that this
amendment does have some appeal to me. The amount of
unsolicited commercial e-mails that I receive has basically
eliminated my ability to use e-mail at my home in a practical
manner. And while this may not be the appropriate time, I think
in the future we have to seriously consider an amendment of
this type.
If, as the sponsor has said, that California does this, and
I think that's what he said, you know, I would wonder how that
it passes constitutional muster there, but it's
unconstitutional when offered here. So I will say to the
sponsor and other members of the committee, at some point if
those of us we represent who use the Internet continue to be
frustrated by the large amount of unsolicited commercial e-
mail, I think this approach is something we ought to seriously
consider.
And I commend the gentleman for his thought, although I
will probably not support his amendment at this time, but it is
to me a very close question.
Mr. Chairman, I'm not sure that the public interest isn't
in supporting his amendment.
Chairman Sensenbrenner. The gentleman yield back? The
gentleman from Alabama yield back his time?
Mr. Bachus. Yes.
Chairman Sensenbrenner. For what purpose does the gentleman
from New York----
Mr. Weiner. Move to strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Weiner. I just--I mean it's very clear to me that the
gentleman's amendment is within the narrow confines of this
bill. The bill talks about regulating commercial electronic--
unsolicited commercial electronic mail by indicating
information in the header field, by regulating information in
the heading field that would be material, false or misleading.
All the gentleman is doing is adding a piece of information to
the header field, clearly within the scope of this bill,
indicating what type of content is therein, and thereby
protecting anyone from saying it's misleading. If they put in
ADV, then they are--that's a disclosure that ultimately may
protect businesses from being sued in this--what has turned
into the ISP enrichment act.
I think it's also--it's also worth noting that the
gentleman's argument seems consistent to me. If we're going to
put PRN in the Re line, why not say ADV? I think we're really
doing nothing all that different, and I would remind my
colleagues why we're here. We're here because our constituents
are getting spam advertisements on their laptop and on their
desktop, and if you're going to put--if you're going to put a
chill on that, perhaps the best thing to do is just make is
possible for people to exercise what the gentlewoman from
California has espoused--and I kind of agree with--is the
delete button. And a surefire way to know if you have an
advertisement is if you put advertisement. And, frankly, we
have these kinds of disclosures elsewhere in the law.
I yield the balance of my time to Mr. Schiff.
Mr. Schiff. Mr. Chairman, very briefly on the
constitutional point, in fact, I think this amendment has much
greater chance of surviving constitutional tests than the
amendment already approved by the committee, because this
amendment doesn't call for a decision to be made about whether
something meets the test of the explicit nature of the prior
amendment. In fact, any amendment--or any transmission that is
an unsolicited commercial e-mail would be required to carry
this, and the breadth of it actually strengthens it from a
constitutional point of view, rather than having to decide
between different types of speech, what is salacious and what
is not.
This is why I think the California law is constitutional,
but the California law is, I think, going to be ineffective
because it really only pertains to e-mails that are generated
from within the State. If this is to be effective, it really
needs to be done nationally.
And just as the objection was made on this side of the
committee to the gentlewoman's amendment, that this wasn't the
right time and the right place, with all due respect, I think
it is equally the right time and the right place, as it was for
the prior amendment.
Ms. Lofgren. Would the gentleman yield?
Mr. Schiff. Yes.
Ms. Lofgren. One of the additional questions I have about
the amendment is, although we've talked about commercial
electronic messages, we don't really define what that is, and
how will this relate to political speech that is not initiated
by candidates, and what is the constitutionality of that?
For example, Buzz Flash, which is arguably commercial.
They're trying to make money. It is political speech. It is not
candidate generated. It does engage in unsolicited, you know,
communication, and would have to be burdened in this way, and
I'm not sure constitutionally how we can do that.
Mr. Schiff. It would apply to political speech the same
degree, no more, no less than the bill does already in applying
terms like materially false or misleading. This will apply and
will be subject to the same criticism.
Mr. Weiner. Would the gentleman allow me to reclaim my--
under the definition of the bill, political speech is not
covered by commercial electronic mail message, because it is
not to advertise or promote for a commercial purpose or product
or service.
Ms. Lofgren. Well, I think it is very gray. I mean, if you
take a look for--I don't want to pick on Buzz Flash, because
it's one of my favorite little areas, but I don't think it's--I
don't think it's clear, and I thank the gentleman for yielding
to make that point.
Mr. Schiff. Thank you. Just to reclaim the final balance of
the time. If we're serious about doing something about this
problem, there aren't a lot of great options. A cause of
action, I think, is a very minimal--minimally effective way to
address the problem. Giving consumers the cause of action is
even more minimalist. This gives real relief to a very real
problem, and it does so in a way that poses the least possible
restriction on commercial unsolicited e-mails in the sense that
all they need to do is put the ADV in the header, and it's so
less cumbersome than an opt-in or opt-out. It really has a lot
to be said for it, and I would urge your aye vote.
Chairman Sensenbrenner. The time of the gentleman has
expired. The question is on the Amendment No. 20 by the
gentleman from California to the Amendment in the Nature of a
Substitute.
Those in favor will signify by saying aye.
Opposed, no.
The noes appear to have it. The noes have it.
Mr. Schiff. Request a rollcall.
Chairman Sensenbrenner. A rollcall is requested. Those in
favor of the Schiff Amendment will, as your names are called,
answer aye. Those opposed, no. And the clerk will call the
roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Gekas?
[No response.]
The Clerk. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Barr?
Mr. Barr. No.
The Clerk. Mr. Barr, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Hutchinson?
[No response.]
The Clerk. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Graham?
[No response.]
The Clerk. Mr. Bachus?
Mr. Bachus. Aye.
The Clerk. Mr. Bachus, aye. Mr. Scarborough?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
[No response.]
The Clerk. Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
[No response.]
The Clerk. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
[No response.]
The Clerk. Mr. Scott?
[No response.]
The Clerk. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. No.
The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
Ms. Jackson Lee. Pass.
The Clerk. Ms. Jackson Lee, pass. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there additional members who
desire to cast or change their vote? The gentleman from North
Carolina?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Chairman Sensenbrenner. The gentlewoman from Texas?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye.
Chairman Sensenbrenner. Other members? Other members? If
not, the clerk will report.
The Clerk. Mr. Chairman, there are 8 ayes and 14 nays.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments?
Ms. Jackson Lee. Mr. Chairman.
Chairman Sensenbrenner. The gentlewoman from Texas.
Ms. Jackson Lee. Yes, Mr. Chairman. I have an amendment at
the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Mr. Chairman, Amendment to the Amendment in the
Nature of a Substitute to H.R. 718 offered by Ms. Jackson Lee.
Mr. Goodlatte. Mr. Chairman, I reserve a point of order.
Chairman Sensenbrenner. A point of order is reserved.
Without objection, the amendment is considered as read, and the
gentlewoman from Texas is recognized for 5 minutes.
[The amendment follows:]
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
As I discussed earlier, we all have a neutral concern and
interest in pornography. I am going to withdraw this amendment.
I'd appreciate if the gentleman would withhold his point of
order. But I wanted to bring to the members' attention language
that I thought, even though it was in a particular section, was
somewhat maybe even exclusive, the language ``unnatural and
natural sexual acts'', and so I have sought to broaden that to
make it where it refers to sexual acts, which allows for the
coverage of anything that is untoward with respect to young
people or anyone else.
I'm going to pursue this with--as this bill moves through
the House--and try to ensure that the language keeps within
certain protected features, but as well covers all aspects
without having to have someone scratch their head about what is
defined as ``natural and unnatural.''
So I would ask my colleagues to consider this. I'm going to
withdraw the amendment, but I do want to have acknowledged the
presentation of the amendment, and then I intend to work on
this as we move this legislation to the floor.
Chairman Sensenbrenner. The amendment is withdrawn. Are
there further amendments? If not, the question is on the
Amendment in the Nature of a Substitute as Amended.
All those in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
Amendment in the Nature of a Substitute is agreed to.
The question now occurs on the motion to report to bill
H.R. 718 favorably as amended by the Amendment in the Nature of
a Substitute as Amended.
All in favor, say aye.
Opposed, no.
The ayes have it, and the motion to report favorably is
adopted.
Without objection, the Chairman is authorized to move to go
to conference pursuant to House rules. Without objection, the
staff is directed to make any technical and conforming changes,
and all members will be given 2 days, as provided by House
rules, in which to submit additional dissenting supplemental or
minority views.
This concludes the business before the committee today. Let
me thank the members for their patience in coming back this
afternoon. We have fulfilled our mandate under the sequential
referral. We will have other opportunities to do that in bills
that we get from the Commerce Committee. I appreciate the
indulgence of members, and let me say this isn't the last time
we're going to fix up the Commerce Committee's work.
The committee is adjourned.
[Whereupon, at 4:13 p.m., the committee was adjourned.]
Additional Views
I strongly support the Sensenbrenner-Conyers substitute
amendment to H.R. 718; however, I am writing additional views
to indicate my concern that the Hart amendment would violate
the First Amendment. The Hart amendment requires the Attorney
General to prescribe marks or labels for e-mails containing
``sexually-oriented advertisements'' that senders of such e-
mails must then include in all such transmissions.\1\ The
penalty for violations of the amendment's provisions includes a
fine, imprisonment for not more than 1 year, or both.\2\
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\1\ H.R. 718, Sec. 2 (proposing 18 U.S.C. Sec. 622(a)). The
amendment defines a ``sexually-oriented advertisement'' as ``any
advertisement that depicts, in actual or simulated form, or explicitly
describes, in a predominantly sexual context, human genitalia, any act
of natural or unnatural sexual intercourse, any act of sadism or
masochism, or any other erotic subject directly related to the
foregoing, but material otherwise within the definition of this
subsection shall be deemed not to constitute a sexually oriented
advertisement if it constitutes only a small and insignificant part of
the whole, the remainder of which is not primarily devoted to sexual
matters.''
\2\ Id. Pursuant to 18 U.S.C. Sec. 3559, any violation of the Hart
amendment would be classified as a Class A misdemeanor. The fine
amounts for all offenses are specified in 18 U.S.C. Sec. 3571. If the
offender is an individual, the maximum fine is either $250,000 (if
death results) or $100,000 (if death does not result). If the offender
is an organization, the maximum fine is either $500,000 (if death
results) or $200,000 (if death does not result).
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I agree with the general objective of the amendment--
keeping sexually-oriented materials away from those who do not
want them and minors who should not have them--but do not
believe the amendment has been written with the necessary care
to pass constitutional scrutiny. I would remind the Members
that there are few more complicated or difficult area of the
law than Federal regulations and restrictions of speech. This
is evidenced by the Supreme Court's 1989 decision to strike
down the Federal Communication Commission's dial-a-porn
regulations,\3\ and its 1997 decision to invalidate portions of
the Communications Decency Act (``CDA''), which regulated
pornography on the Internet.\4\
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\3\ Sable Comm'ns of California v. FCC, 492 U.S. 115 (1989).
\4\ Reno v. ACLU, 521 U.S. 844 (1997) (striking down portions of
the Communications Decency Act of 1996, Pub. L. No. 104-104, title V,
110 Stat. 56 (1996)). The CDA's successor, the Child Online Protection
Act, also is being reviewed in the Supreme Court. ACLU v. Reno, 217
F.3d 162 (3d Cir. 2000) (affirming trial court issuance of preliminary
injunction against enforcement of Child Online Protection Act of 1998,
Pub. L. No. 105-277, 112 Stat. 2681 (1998), a statute intended to
protect minors from harmful material on the Internet), cert. granted
and rev'd sub nom. Ashcroft v. ACLU, No. 00-1293 (2001).
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Another recent law, the Children's Internet Protection Act of 2000,
is also now the subject of First Amendment challenges. Multnomah County
Public Library v. United States, No. 01-CV-1322 (E.D. Pa. filed Mar.
20, 2001); American Library Ass'n v. United States, No. 01-CV-1303
(E.D. Pa. filed Mar. 20, 2001). That law directs that schools or
libraries receiving Federal funds to obtain computers for Internet
access must utilize technological filters to block access by minors to
materials on the Internet having sexual content. Children's Internet
Protection Act of 2000, Pub. L. No. 106-554 (2000).
The Supreme Court also has struck down a Federal statute regulating
the advertising of contraceptives on the grounds that it violated the
First Amendment. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60
(1983).
This line of cases should serve as a signal that, if we are
to legislate on this matter, we must do so in a deliberative
manner that respects constitutional freedoms. Unfortunately, I
do not believe the Hart amendment will withstand First
Amendment scrutiny because it contains overbroad restrictions
on commercial speech, and may well be found to be void for
vagueness and to compel speech.
I. The Amendment Proposes an Overbroad Regulation of Commercial Speech
It is entirely clear that the protections of the First
Amendment extend to speech on the Internet,\5\ which the Hart
amendment proposes to regulate. It is also entirely clear that
the First Amendment applies to advertisements or commercial
speech, such as the e-mails covered by the Hart amendment.\6\
In this regard, the Court has stated that the constitutional
test for any regulation of truthful and non-misleading
commercial speech is whether the law (1) pertains to a
substantial government interest and (2) is reasonably and
narrowly tailored to that interest.\7\ In this case, it is not
clear that the government has a substantial interest in marking
sexually-oriented ads, nor is the proposal narrowly tailored to
any such alleged interest.
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\5\ Reno, 521 U.S. at 844.
\6\ The Supreme Court has ruled that ``speech is not stripped of
First Amendment protection merely because it appears'' as a commercial
advertisement. Bigelow v. Virginia, 421 U.S. 808, 818 (1975). The Court
later affirmed that speech that ``does no more than propose a
commercial transaction'' is protected by the First Amendment. Virginia
State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S.
748 (1976).
\7\ 44 Liquormart v. Rhode Island, 517 U.S. 484 (1996); Central
Hudson Gas v. Public Service Comm'n, 447 U.S. 557 (1980). See also
Letter from Marvin J. Johnson, Legislative Counsel, ACLU, to the
Honorable F. James Sensenbrenner, Jr., Chair, House Comm. on the
Judiciary, & the Honorable John Conyers, Jr., Ranking Member, House
Comm. on the Judiciary 3 (May 23, 2001) [hereinafter ACLU Letter].
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As to the substantial government interest prong, the Hart
amendment presumes that the government has a substantial
interest in making consumers and parents aware that they are
receiving sexually-oriented advertisements via e-mail. There
is, however, no legislative history or congressional finding to
support this presumption. The Committee did not hold hearings
where any mention was made--either by witnesses or Members--of
a need or desire to mark e-mails containing sexually-oriented
advertisements. To the contrary, those hearings that Congress
did hold on e-mail elicited testimony that the primary problem
for e-mail users was the receipt of bulk, unsolicited
commercial e-mail, otherwise known as spam.\8\ This is not to
say that Federal legislation addressing e-mails with sexual
content is not needed, but merely that the legislative
groundwork has not been laid for such a law.
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\8\ See, e.g., Senate Commerce Comm. Hearing (statement of Jason
Catlett, President and Founder, Junkbusters Corp.); H.R. Rep. No. 41,
107th Cong., 1st Sess. 9 (2001).
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As to the second prong, the amendment would not appear to
be sufficiently narrowly tailored to pass constitutional
scrutiny. For example, the intended beneficiaries of the
amendment are presumably people who do not want to open e-mails
with sexually-oriented ads. Unfortunately, even those who have
asked for such ads would see the mark and possibly be deterred
from requesting sexually-oriented advertisements.\9\ Proponents
of the amendment argue that it merely mirrors labeling
regulations that exist for regular mail, pointing to 39 U.S.C.
Sec. 3010(a) and its implementing regulations, which require
distributors of postal mail with sexually-oriented
advertisements in them to print ``Sexually-Oriented Ad'' on a
sealed inner envelope that goes in a regular mailer to
recipients.\10\ Those regulations, however, applied only to
solicitors sending sexually-oriented ads to people who had
requested them; the regulations did not apply to unsolicited
ads.\11\ Under the Hart amendment, the marks and labels must be
applied to all e-mails, regardless of whether they were
solicited or unsolicited.
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\9\ It has been recognized that restrictions imposed for the
benefit of people not wanting solicitations are reviewed differently
when they impact people who do want them. Pent-R-Books v. United States
Postal Service, 328 F. Supp. 297 (1971), aff'd in part and rev'd in
part, 538 F. 2d 519 (1976), and cert denied, 430 U.S. 906 (1977)
(upholding postal regulation on applying marks to postal mail with
sexually-oriented ads in them because marks were applied to mailings
only for people who had not requested the materials).
\10\ See Markup of H.R. 718, House Comm. on the Judiciary, 107th
Cong., 1st Sess. (May 23, 2001) [hereinafter H.R. 718 Markup]. Portions
of 39 U.S.C. Sec. 3010 were reviewed and upheld in 1971. Pent-R-Books,
328 F. Supp. at 297.
\11\ Pent-R-Books, 328 F. Supp. at 313-14.
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In addition, it is not at all clear that technology, which
is much less obtrusive than Federal legislation, could not be
used to respond to the problem. For example, there is an entire
software industry built on filters so people can screen obscene
materials, and there are Internet Service Providers that will
filter out e-mails for their customers.\12\ Considering that
technology is available and being further refined, the courts
may well question the need for an intrusive new labeling
requirement. Furthermore, the restriction may not be reasonably
related to the government's interest. It is possible that the
marking requirement would do exactly the opposite of what it is
intended to do, as such marks actually could encourage children
to view sexually-oriented ads.
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\12\ See John Schwartz, Schools Get Tools to Track Students' Use of
Internet, N.Y. Times, May 21, 2001, at C6; Steve Woodward, AOL Selects
RuleSpace to Patrol the Internet, Oregonian, May 3, 2001, at B1.
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II. The Amendment May be Void for Vagueness
The Hart amendment also could be found constitutionally
void on the grounds that it is vague. The Court has delineated
a ``strict prohibition of statutes which burden speech in terms
that are so vague as either to allow including protected speech
in the prohibition or leaving an individual without clear
guidance as to the nature of speech for which he can be
punished.'' \13\ As one of the leading constitutional law
treatises has observed, ``to the extent that the law is vague
and relates to fundamental constitutional rights, it might have
an `in terrorem' effect and deter persons from engaging in
activities, such as constitutionally-protected speech, that are
of particular constitutional importance.'' \14\ The American
Civil Liberties Union has further noted:
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\13\ Ronald D. Rotunda & John E. Nowak, 4 Treatise on
Constitutional Law: Substance and Procedure Sec. 20.9 (2d ed. 1992).
\14\ Id.
Laws are supposed to ``give the person of ordinary
intelligence a reasonable opportunity to know what is
prohibited.'' . . . Failure to clearly define when
speech transgresses the regulation or law [as the Hart
amendment fails to do] will unconstitutionally force
people to conform their speech to ``that which is
unquestionably safe.'' \15\
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\15\ ACLU Letter at 4 (quoting Grayned v. City of Rockford, 408
U.S. 104, 108 (1972) & Baggett v. Bullitt, 377 U.S. 360, 372 (1964)).
In this case, the proposal's definition of ``sexually-
oriented advertisement'' \16\ may well be seen as unnecessarily
vague, could implicate e-mails that its proponents might not
intend for labeling, and therefore could chill otherwise lawful
speech. More specifically, the definition does not specify what
is meant by ``natural or unnatural sexual intercourse'' or
``any other erotic subject,'' and could require the labeling of
an e-mail containing an ad for a book about sexual health or
even an ad that contains double entendres.\17\ Furthermore, in
an apparent effort to ensure that e-mails with minimal sexual
content do not have to be labeled, the definition carves out e-
mails having sexual content that ``constitutes only a small and
insignificant part of the whole, the remainder of which is not
primarily devoted to sexual matters.'' \18\ Unfortunately, the
amendment does not specify what is meant by ``a small and
insignificant part''--that term could implicate e-mails where
10 percent of the content is sexually-oriented or even where 2
percent is so oriented.
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\16\ H.R. 718, Sec. 2 (proposing 18 U.S.C. Sec. 622(b)). This
definition comes from 39 U.S.C. Sec. 3010, which requires the labeling
of postal materials with sexually-oriented ads in them.
\17\ See ACLU Letter at 3.
\18\ See H.R. 718, Sec. 2 (proposing 18 U.S.C. Sec. 622(b)).
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III. The Amendment May Unconstitutionally Compel Speech
It also can be argued that the Hart amendment's labeling
requirement represents an unconstitutional compulsion of speech
in violation of the First Amendment. The Supreme Court has held
that requiring private entities to provide disclosures
implicates the First Amendment.\19\ The Court has further ruled
in the commercial context that, when the government requires
disclosures, ``an advertiser's rights are reasonably protected
as long as disclosure requirements are reasonably related to
the State's interest in preventing deception of consumers.''
\20\ In this case, the Hart amendment requires disclosures of
e-mails containing sexually-oriented commercial speech but is
not intended to ``prevent deception of consumers.'' For that
reason, the requirement could be seen as unconstitutional.
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\19\ Riley v. National Fed'n of the Blind, 487 U.S. 781 (1988)
(striking down a state statute requiring professional fundraisers for
charities to disclose to potential donors the gross percentage of
revenues retained in prior charitable solicitations).
\20\ Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651,
652 n.14 (1984).
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Proponents of the labeling requirement may argue that other
forms of media--movies, television shows, and music--are
labeled for sexual or violent content. There is, however, a
significant difference between that labeling and what the Hart
amendment proposes. Current labeling of content is done
voluntarily by the private industries that distribute the media
so that potential purchasers (or their parents) will be aware
of what is being provided. Efforts in Congress to require
labeling of those media have been previously rejected on the
grounds they would violate the First Amendment.\21\
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\21\ See, e.g., 145 Cong. Rec. H4491-H4499 (daily ed. June 17,
1999) (debate on Wamp amendment to H.R. 1501, which was defeated 161-
266).
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CONCLUSION
The protections of the First Amendment should not turn back
at the doorstep of commercial speech. In fact, it is the
protection that commercial speech receives that ensures that
the right to engage in non-commercial speech will be limited in
only the most extreme circumstances. For that reason,
limitations on commercial speech must be reasonably and
narrowly drafted to areas in which the government maintains a
substantial regulatory interest. Unfortunately, the Hart
amendment subjects a class of commercial speech to lesser
constitutional protection than it otherwise deserves and does
so without the foundation of even a single congressional
hearing. I urge the Members to reconsider this hastily-drafted
provision as we move to the floor.
John Conyers, Jr.