    [United States Statutes at Large, Volume 117, 108th Congress, 1st Session]
    [From the U.S. Government Publishing Office, www.gpo.gov]

    117 STAT. 2699

    Public Law 108-187
    108th Congress

    An Act

    To regulate interstate commerce by imposing limitations and penalties on
    the transmission of unsolicited commercial electronic mail via the
    Internet. <>

    Be it enacted by the Senate and House of Representatives of the
    United States of America in Congress assembled, <>

    SECTION 1. <> SHORT TITLE.

    This Act may be cited as the ``Controlling the Assault of Non-
    Solicited Pornography and Marketing Act of 2003'', or the ``CAN-SPAM Act
    of 2003''.

    SEC. 2. <> CONGRESSIONAL FINDINGS AND POLICY.

    (a) Findings.--The Congress finds the following:
    (1) Electronic mail has become an extremely important and
    popular means of communication, relied on by millions of
    Americans on a daily basis for personal and commercial purposes.
    Its low cost and global reach make it extremely convenient and
    efficient, and offer unique opportunities for the development
    and growth of frictionless commerce.
    (2) The convenience and efficiency of electronic mail are
    threatened by the extremely rapid growth in the volume of
    unsolicited commercial electronic mail. Unsolicited commercial
    electronic mail is currently estimated to account for over half
    of all electronic mail traffic, up from an estimated 7 percent
    in 2001, and the volume continues to rise. Most of these
    messages are fraudulent or deceptive in one or more respects.
    (3) The receipt of unsolicited commercial electronic mail
    may result in costs to recipients who cannot refuse to accept
    such mail and who incur costs for the storage of such mail, or
    for the time spent accessing, reviewing, and discarding such
    mail, or for both.
    (4) The receipt of a large number of unwanted messages also
    decreases the convenience of electronic mail and creates a risk
    that wanted electronic mail messages, both commercial and
    noncommercial, will be lost, overlooked, or discarded amidst the
    larger volume of unwanted messages, thus reducing the
    reliability and usefulness of electronic mail to the recipient.
    (5) Some commercial electronic mail contains material that
    many recipients may consider vulgar or pornographic in nature.
    (6) The growth in unsolicited commercial electronic mail
    imposes significant monetary costs on providers of Internet
    access services, businesses, and educational and nonprofit
    institutions that carry and receive such mail, as there is a
    finite volume of mail that such providers, businesses, and

    [[Page 2700]]
    117 STAT. 2700

    institutions can handle without further investment in
    infrastructure.
    (7) Many senders of unsolicited commercial electronic mail
    purposefully disguise the source of such mail.
    (8) Many senders of unsolicited commercial electronic mail
    purposefully include misleading information in the messages'
    subject lines in order to induce the recipients to view the
    messages.
    (9) While some senders of commercial electronic mail
    messages provide simple and reliable ways for recipients to
    reject (or ``opt-out'' of) receipt of commercial electronic mail
    from such senders in the future, other senders provide no such
    ``opt-out'' mechanism, or refuse to honor the requests of
    recipients not to receive electronic mail from such senders in
    the future, or both.
    (10) Many senders of bulk unsolicited commercial electronic
    mail use computer programs to gather large numbers of electronic
    mail addresses on an automated basis from Internet websites or
    online services where users must post their addresses in order
    to make full use of the website or service.
    (11) Many States have enacted legislation intended to
    regulate or reduce unsolicited commercial electronic mail, but
    these statutes impose different standards and requirements. As a
    result, they do not appear to have been successful in addressing
    the problems associated with unsolicited commercial electronic
    mail, in part because, since an electronic mail address does not
    specify a geographic location, it can be extremely difficult for
    law-abiding businesses to know with which of these disparate
    statutes they are required to comply.
    (12) The problems associated with the rapid growth and abuse
    of unsolicited commercial electronic mail cannot be solved by
    Federal legislation alone. The development and adoption of
    technological approaches and the pursuit of cooperative efforts
    with other countries will be necessary as well.

    (b) Congressional Determination of Public Policy.--On the basis of
    the findings in subsection (a), the Congress determines that--
    (1) there is a substantial government interest in regulation
    of commercial electronic mail on a nationwide basis;
    (2) senders of commercial electronic mail should not mislead
    recipients as to the source or content of such mail; and
    (3) recipients of commercial electronic mail have a right to
    decline to receive additional commercial electronic mail from
    the same source.

    SEC. 3. <> DEFINITIONS.

    In this Act:
    (1) Affirmative consent.--The term ``affirmative consent'',
    when used with respect to a commercial electronic mail message,
    means that--
    (A) the recipient expressly consented to receive the
    message, either in response to a clear and conspicuous
    request for such consent or at the recipient's own
    initiative; and
    (B) if the message is from a party other than the
    party to which the recipient communicated such consent,
    the recipient was given clear and conspicuous notice at

    [[Page 2701]]
    117 STAT. 2701

    the time the consent was communicated that the
    recipient's electronic mail address could be transferred
    to such other party for the purpose of initiating
    commercial electronic mail messages.
    (2) Commercial electronic mail message.--
    (A) In general.--The term ``commercial electronic
    mail message'' means any electronic mail message the
    primary purpose of which is the commercial advertisement
    or promotion of a commercial product or service
    (including content on an Internet website operated for a
    commercial purpose).
    (B) Transactional or relationship messages.--The
    term ``commercial electronic mail message'' does not
    include a transactional or relationship message.
    (C) Regulations <> regarding
    primary purpose.--Not later than 12 months after the
    date of the enactment of this Act, the Commission shall
    issue regulations pursuant to section 13 defining the
    relevant criteria to facilitate the determination of the
    primary purpose of an electronic mail message.
    (D) Reference to company or website.--The inclusion
    of a reference to a commercial entity or a link to the
    website of a commercial entity in an electronic mail
    message does not, by itself, cause such message to be
    treated as a commercial electronic mail message for
    purposes of this Act if the contents or circumstances of
    the message indicate a primary purpose other than
    commercial advertisement or promotion of a commercial
    product or service.
    (3) Commission.--The term ``Commission'' means the Federal
    Trade Commission.
    (4) Domain name.--The term ``domain name'' means any
    alphanumeric designation which is registered with or assigned by
    any domain name registrar, domain name registry, or other domain
    name registration authority as part of an electronic address on
    the Internet.
    (5) Electronic mail address.--The term ``electronic mail
    address'' means a destination, commonly expressed as a string of
    characters, consisting of a unique user name or mailbox
    (commonly referred to as the ``local part'') and a reference to
    an Internet domain (commonly referred to as the ``domain
    part''), whether or not displayed, to which an electronic mail
    message can be sent or delivered.
    (6) Electronic mail message.--The term ``electronic mail
    message'' means a message sent to a unique electronic mail
    address.
    (7) FTC act.--The term ``FTC Act'' means the Federal Trade
    Commission Act (15 U.S.C. 41 et seq.).
    (8) Header information.--The term ``header information''
    means the source, destination, and routing information attached
    to an electronic mail message, including the originating domain
    name and originating electronic mail address, and any other
    information that appears in the line identifying, or purporting
    to identify, a person initiating the message.
    (9) Initiate.--The term ``initiate'', when used with respect
    to a commercial electronic mail message, means to originate or
    transmit such message or to procure the origination or

    [[Page 2702]]
    117 STAT. 2702

    transmission of such message, but shall not include actions that
    constitute routine conveyance of such message. For purposes of
    this paragraph, more than one person may be considered to have
    initiated a message.
    (10) Internet.--The term ``Internet'' has the meaning given
    that term in the Internet Tax Freedom Act (47 U.S.C. 151 nt).
    (11) Internet access service.--The term ``Internet access
    service'' has the meaning given that term in section 231(e)(4)
    of the Communications Act of 1934 (47 U.S.C. 231(e)(4)).
    (12) Procure.--The term ``procure'', when used with respect
    to the initiation of a commercial electronic mail message, means
    intentionally to pay or provide other consideration to, or
    induce, another person to initiate such a message on one's
    behalf.
    (13) Protected computer.--The term ``protected computer''
    has the meaning given that term in section 1030(e)(2)(B) of
    title 18, United States Code.
    (14) Recipient.--The term ``recipient'', when used with
    respect to a commercial electronic mail message, means an
    authorized user of the electronic mail address to which the
    message was sent or delivered. If a recipient of a commercial
    electronic mail message has one or more electronic mail
    addresses in addition to the address to which the message was
    sent or delivered, the recipient shall be treated as a separate
    recipient with respect to each such address. If an electronic
    mail address is reassigned to a new user, the new user shall not
    be treated as a recipient of any commercial electronic mail
    message sent or delivered to that address before it was
    reassigned.
    (15) Routine conveyance.--The term ``routine conveyance''
    means the transmission, routing, relaying, handling, or storing,
    through an automatic technical process, of an electronic mail
    message for which another person has identified the recipients
    or provided the recipient addresses.
    (16) Sender.--
    (A) In general.--Except as provided in subparagraph
    (B), the term ``sender'', when used with respect to a
    commercial electronic mail message, means a person who
    initiates such a message and whose product, service, or
    Internet web site is advertised or promoted by the
    message.
    (B) Separate lines of business or divisions.--If an
    entity operates through separate lines of business or
    divisions and holds itself out to the recipient
    throughout the message as that particular line of
    business or division rather than as the entity of which
    such line of business or division is a part, then the
    line of business or the division shall be treated as the
    sender of such message for purposes of this Act.
    (17) Transactional or relationship message.--
    (A) In general.--The term ``transactional or
    relationship message'' means an electronic mail message
    the primary purpose of which is--
    (i) to facilitate, complete, or confirm a
    commercial transaction that the recipient has
    previously agreed to enter into with the sender;

    [[Page 2703]]
    117 STAT. 2703

    (ii) to provide warranty information, product
    recall information, or safety or security
    information with respect to a commercial product
    or service used or purchased by the recipient;
    (iii) to provide--
    (I) notification concerning a change
    in the terms or features of;
    (II) notification of a change in the
    recipient's standing or status with
    respect to; or
    (III) at regular periodic intervals,
    account balance information or other
    type of account statement with respect
    to,
    a subscription, membership, account, loan, or
    comparable ongoing commercial relationship
    involving the ongoing purchase or use by the
    recipient of products or services offered by the
    sender;
    (iv) to provide information directly related
    to an employment relationship or related benefit
    plan in which the recipient is currently involved,
    participating, or enrolled; or
    (v) to deliver goods or services, including
    product updates or upgrades, that the recipient is
    entitled to receive under the terms of a
    transaction that the recipient has previously
    agreed to enter into with the sender.
    (B) Modification of definition.--The Commission by
    regulation pursuant to section 13 may modify the
    definition in subparagraph (A) to expand or contract the
    categories of messages that are treated as transactional
    or relationship messages for purposes of this Act to the
    extent that such modification is necessary to
    accommodate changes in electronic mail technology or
    practices and accomplish the purposes of this Act.
    SEC. 4. PROHIBITION <> AGAINST PREDATORY AND
    ABUSIVE COMMERCIAL E-MAIL.

    (a) Offense.--
    (1) In general.--Chapter 47 of title 18, United States Code,
    is amended by adding at the end the following new section:
    ``Sec. 1037. Fraud and related activity in connection with
    electronic mail

    ``(a) In General.--Whoever, in or affecting interstate or foreign
    commerce, knowingly--
    ``(1) accesses a protected computer without authorization,
    and intentionally initiates the transmission of multiple
    commercial electronic mail messages from or through such
    computer,
    ``(2) uses a protected computer to relay or retransmit
    multiple commercial electronic mail messages, with the intent to
    deceive or mislead recipients, or any Internet access service,
    as to the origin of such messages,
    ``(3) materially falsifies header information in multiple
    commercial electronic mail messages and intentionally initiates
    the transmission of such messages,
    ``(4) registers, using information that materially falsifies
    the identity of the actual registrant, for five or more
    electronic

    [[Page 2704]]
    117 STAT. 2704

    mail accounts or online user accounts or two or more domain
    names, and intentionally initiates the transmission of multiple
    commercial electronic mail messages from any combination of such
    accounts or domain names, or
    ``(5) falsely represents oneself to be the registrant or the
    legitimate successor in interest to the registrant of 5 or more
    Internet Protocol addresses, and intentionally initiates the
    transmission of multiple commercial electronic mail messages
    from such addresses,

    or conspires to do so, shall be punished as provided in subsection (b).
    ``(b) Penalties.--The punishment for an offense under subsection (a)
    is--
    ``(1) a fine under this title, imprisonment for not more
    than 5 years, or both, if--
    ``(A) the offense is committed in furtherance of any
    felony under the laws of the United States or of any
    State; or
    ``(B) the defendant has previously been convicted
    under this section or section 1030, or under the law of
    any State for conduct involving the transmission of
    multiple commercial electronic mail messages or
    unauthorized access to a computer system;
    ``(2) a fine under this title, imprisonment for not more
    than 3 years, or both, if--
    ``(A) the offense is an offense under subsection
    (a)(1);
    ``(B) the offense is an offense under subsection
    (a)(4) and involved 20 or more falsified electronic mail
    or online user account registrations, or 10 or more
    falsified domain name registrations;
    ``(C) the volume of electronic mail messages
    transmitted in furtherance of the offense exceeded 2,500
    during any 24-hour period, 25,000 during any 30-day
    period, or 250,000 during any 1-year period;
    ``(D) the offense caused loss to one or more persons
    aggregating $5,000 or more in value during any 1-year
    period;
    ``(E) as a result of the offense any individual
    committing the offense obtained anything of value
    aggregating $5,000 or more during any 1-year period; or
    ``(F) the offense was undertaken by the defendant in
    concert with three or more other persons with respect to
    whom the defendant occupied a position of organizer or
    leader; and
    ``(3) a fine under this title or imprisonment for not more
    than 1 year, or both, in any other case.

    ``(c) Forfeiture.--
    ``(1) In general.--The <> court, in imposing
    sentence on a person who is convicted of an offense under this
    section, shall order that the defendant forfeit to the United
    States--
    ``(A) any property, real or personal, constituting
    or traceable to gross proceeds obtained from such
    offense; and
    ``(B) any equipment, software, or other technology
    used or intended to be used to commit or to facilitate
    the commission of such offense.

    [[Page 2705]]
    117 STAT. 2705

    ``(2) Procedures.--The <> procedures
    set forth in section 413 of the Controlled Substances Act (21
    U.S.C. 853), other than subsection (d) of that section, and in
    Rule 32.2 of the Federal Rules of Criminal Procedure, shall
    apply to all stages of a criminal forfeiture proceeding under
    this section.

    ``(d) Definitions.--In this section:
    ``(1) Loss.--The term `loss' has the meaning given that term
    in section 1030(e) of this title.
    ``(2) Materially.--For purposes of paragraphs (3) and (4) of
    subsection (a), header information or registration information
    is materially falsified if it is altered or concealed in a
    manner that would impair the ability of a recipient of the
    message, an Internet access service processing the message on
    behalf of a recipient, a person alleging a violation of this
    section, or a law enforcement agency to identify, locate, or
    respond to a person who initiated the electronic mail message or
    to investigate the alleged violation.
    ``(3) Multiple.--The term `multiple' means more than 100
    electronic mail messages during a 24-hour period, more than
    1,000 electronic mail messages during a 30-day period, or more
    than 10,000 electronic mail messages during a 1-year period.
    ``(4) Other terms.--Any other term has the meaning given
    that term by section 3 of the CAN-SPAM Act of 2003.''.
    (2) Conforming amendment.--The chapter analysis for chapter
    47 of title 18, United States Code, is amended by adding at the
    end the following:
    ``Sec.
    ``1037. Fraud and related activity in connection with electronic
    mail.''.

    (b) United <> States Sentencing
    Commission.--
    (1) Directive.--Pursuant to its authority under section
    994(p) of title 28, United States Code, and in accordance with
    this section, the United States Sentencing Commission shall
    review and, as appropriate, amend the sentencing guidelines and
    policy statements to provide appropriate penalties for
    violations of section 1037 of title 18, United States Code, as
    added by this section, and other offenses that may be
    facilitated by the sending of large quantities of unsolicited
    electronic mail.
    (2) Requirements.--In carrying out this subsection, the
    Sentencing Commission shall consider providing sentencing
    enhancements for--
    (A) those convicted under section 1037 of title 18,
    United States Code, who--
    (i) obtained electronic mail addresses through
    improper means, including--
    (I) harvesting electronic mail
    addresses of the users of a website,
    proprietary service, or other online
    public forum operated by another person,
    without the authorization of such
    person; and
    (II) randomly generating electronic
    mail addresses by computer; or
    (ii) knew that the commercial electronic mail
    messages involved in the offense contained or
    advertised an Internet domain for which the
    registrant of the domain had provided false
    registration information; and

    [[Page 2706]]
    117 STAT. 2706

    (B) those convicted of other offenses, including
    offenses involving fraud, identity theft, obscenity,
    child pornography, and the sexual exploitation of
    children, if such offenses involved the sending of large
    quantities of electronic mail.

    (c) Sense of Congress.--It is the sense of Congress that--
    (1) Spam has become the method of choice for those who
    distribute pornography, perpetrate fraudulent schemes, and
    introduce viruses, worms, and Trojan horses into personal and
    business computer systems; and
    (2) the Department of Justice should use all existing law
    enforcement tools to investigate and prosecute those who send
    bulk commercial e-mail to facilitate the commission of Federal
    crimes, including the tools contained in chapters 47 and 63 of
    title 18, United States Code (relating to fraud and false
    statements); chapter 71 of title 18, United States Code
    (relating to obscenity); chapter 110 of title 18, United States
    Code (relating to the sexual exploitation of children); and
    chapter 95 of title 18, United States Code (relating to
    racketeering), as appropriate.
    SEC. 5. OTHER <> PROTECTIONS FOR USERS OF
    COMMERCIAL ELECTRONIC MAIL.

    (a) Requirements for Transmission of Messages.--
    (1) Prohibition of false or misleading transmission
    information.--It is unlawful for any person to initiate the
    transmission, to a protected computer, of a commercial
    electronic mail message, or a transactional or relationship
    message, that contains, or is accompanied by, header information
    that is materially false or materially misleading. For purposes
    of this paragraph--
    (A) header information that is technically accurate
    but includes an originating electronic mail address,
    domain name, or Internet Protocol address the access to
    which for purposes of initiating the message was
    obtained by means of false or fraudulent pretenses or
    representations shall be considered materially
    misleading;
    (B) a ``from'' line (the line identifying or
    purporting to identify a person initiating the message)
    that accurately identifies any person who initiated the
    message shall not be considered materially false or
    materially misleading; and
    (C) header information shall be considered
    materially misleading if it fails to identify accurately
    a protected computer used to initiate the message
    because the person initiating the message knowingly uses
    another protected computer to relay or retransmit the
    message for purposes of disguising its origin.
    (2) Prohibition of deceptive subject headings.--It is
    unlawful for any person to initiate the transmission to a
    protected computer of a commercial electronic mail message if
    such person has actual knowledge, or knowledge fairly implied on
    the basis of objective circumstances, that a subject heading of
    the message would be likely to mislead a recipient, acting
    reasonably under the circumstances, about a material fact

    [[Page 2707]]
    117 STAT. 2707

    regarding the contents or subject matter of the message
    (consistent with the criteria used in enforcement of section 5
    of the Federal Trade Commission Act (15 U.S.C. 45)).
    (3) Inclusion of return address or comparable mechanism in
    commercial electronic mail.--
    (A) In general.--It is unlawful for any person to
    initiate the transmission to a protected computer of a
    commercial electronic mail message that does not contain
    a functioning return electronic mail address or other
    Internet-based mechanism, clearly and conspicuously
    displayed, that--
    (i) a recipient may use to submit, in a manner
    specified in the message, a reply electronic mail
    message or other form of Internet-based
    communication requesting not to receive future
    commercial electronic mail messages from that
    sender at the electronic mail address where the
    message was received; and
    (ii) remains capable of receiving such
    messages or communications for no less than 30
    days after the transmission of the original
    message.
    (B) More detailed options possible.--The person
    initiating a commercial electronic mail message may
    comply with subparagraph (A)(i) by providing the
    recipient a list or menu from which the recipient may
    choose the specific types of commercial electronic mail
    messages the recipient wants to receive or does not want
    to receive from the sender, if the list or menu includes
    an option under which the recipient may choose not to
    receive any commercial electronic mail messages from the
    sender.
    (C) Temporary inability to receive messages or
    process requests.--A return electronic mail address or
    other mechanism does not fail to satisfy the
    requirements of subparagraph (A) if it is unexpectedly
    and temporarily unable to receive messages or process
    requests due to a technical problem beyond the control
    of the sender if the problem is corrected within a
    reasonable time period.
    (4) Prohibition of transmission of commercial electronic
    mail after objection.--
    (A) In general.--If a recipient makes a request
    using a mechanism provided pursuant to paragraph (3) not
    to receive some or any commercial electronic mail
    messages from such sender, then it is unlawful--
    (i) for the sender to initiate the
    transmission to the recipient, more than 10
    business days after the receipt of such request,
    of a commercial electronic mail message that falls
    within the scope of the request;
    (ii) for any person acting on behalf of the
    sender to initiate the transmission to the
    recipient, more than 10 business days after the
    receipt of such request, of a commercial
    electronic mail message with actual knowledge, or
    knowledge fairly implied on the basis of objective
    circumstances, that such message falls within the
    scope of the request;
    (iii) for any person acting on behalf of the
    sender to assist in initiating the transmission to
    the recipient, through the provision or selection
    of addresses to which the message will be sent, of
    a commercial electronic

    [[Page 2708]]
    117 STAT. 2708

    mail message with actual knowledge, or knowledge
    fairly implied on the basis of objective
    circumstances, that such message would violate
    clause (i) or (ii); or
    (iv) for the sender, or any other person who
    knows that the recipient has made such a request,
    to sell, lease, exchange, or otherwise transfer or
    release the electronic mail address of the
    recipient (including through any transaction or
    other transfer involving mailing lists bearing the
    electronic mail address of the recipient) for any
    purpose other than compliance with this Act or
    other provision of law.
    (B) Subsequent affirmative consent.--A prohibition
    in subparagraph (A) does not apply if there is
    affirmative consent by the recipient subsequent to the
    request under subparagraph (A).
    (5) Inclusion of identifier, opt-out, and physical address
    in commercial electronic mail.--(A) It is unlawful for any
    person to initiate the transmission of any commercial electronic
    mail message to a protected computer unless the message
    provides--
    (i) clear and conspicuous identification that the
    message is an advertisement or solicitation;
    (ii) clear and conspicuous notice of the opportunity
    under paragraph (3) to decline to receive further
    commercial electronic mail messages from the sender; and
    (iii) a valid physical postal address of the sender.
    (B) Subparagraph (A)(i) does not apply to the transmission
    of a commercial electronic mail message if the recipient has
    given prior affirmative consent to receipt of the message.
    (6) Materially.--For purposes of paragraph (1), the term
    ``materially'', when used with respect to false or misleading
    header information, includes the alteration or concealment of
    header information in a manner that would impair the ability of
    an Internet access service processing the message on behalf of a
    recipient, a person alleging a violation of this section, or a
    law enforcement agency to identify, locate, or respond to a
    person who initiated the electronic mail message or to
    investigate the alleged violation, or the ability of a recipient
    of the message to respond to a person who initiated the
    electronic message.

    (b) Aggravated Violations Relating to Commercial Electronic Mail.--
    (1) Address harvesting and dictionary attacks.--
    (A) In general.--It is unlawful for any person to
    initiate the transmission, to a protected computer, of a
    commercial electronic mail message that is unlawful
    under subsection (a), or to assist in the origination of
    such message through the provision or selection of
    addresses to which the message will be transmitted, if
    such person had actual knowledge, or knowledge fairly
    implied on the basis of objective circumstances, that--
    (i) the electronic mail address of the
    recipient was obtained using an automated means
    from an Internet website or proprietary online
    service operated by another person, and such
    website or online service included, at the time
    the address was obtained, a notice stating that
    the operator of such website or online

    [[Page 2709]]
    117 STAT. 2709

    service will not give, sell, or otherwise transfer
    addresses maintained by such website or online
    service to any other party for the purposes of
    initiating, or enabling others to initiate,
    electronic mail messages; or
    (ii) the electronic mail address of the
    recipient was obtained using an automated means
    that generates possible electronic mail addresses
    by combining names, letters, or numbers into
    numerous permutations.
    (B) Disclaimer.--Nothing in this paragraph creates
    an ownership or proprietary interest in such electronic
    mail addresses.
    (2) Automated creation of multiple electronic mail
    accounts.--It is unlawful for any person to use scripts or other
    automated means to register for multiple electronic mail
    accounts or online user accounts from which to transmit to a
    protected computer, or enable another person to transmit to a
    protected computer, a commercial electronic mail message that is
    unlawful under subsection (a).
    (3) Relay or retransmission through unauthorized access.--It
    is unlawful for any person knowingly to relay or retransmit a
    commercial electronic mail message that is unlawful under
    subsection (a) from a protected computer or computer network
    that such person has accessed without authorization.

    (c) Supplementary Rulemaking Authority.--The Commission shall by
    regulation, pursuant to section 13--
    (1) modify the 10-business-day period under subsection
    (a)(4)(A) or subsection (a)(4)(B), or both, if the Commission
    determines that a different period would be more reasonable
    after taking into account--
    (A) the purposes of subsection (a);
    (B) the interests of recipients of commercial
    electronic mail; and
    (C) the burdens imposed on senders of lawful
    commercial electronic mail; and
    (2) specify additional activities or practices to which
    subsection (b) applies if the Commission determines that those
    activities or practices are contributing substantially to the
    proliferation of commercial electronic mail messages that are
    unlawful under subsection (a).

    (d) Requirement To Place Warning Labels on Commercial Electronic
    Mail Containing Sexually Oriented Material.--
    (1) In general.--No person may initiate in or affecting
    interstate commerce the transmission, to a protected computer,
    of any commercial electronic mail message that includes sexually
    oriented material and--
    (A) fail to include in subject heading for the
    electronic mail message the marks or notices prescribed
    by the Commission under this subsection; or
    (B) fail to provide that the matter in the message
    that is initially viewable to the recipient, when the
    message is opened by any recipient and absent any
    further actions by the recipient, includes only--
    (i) to the extent required or authorized
    pursuant to paragraph (2), any such marks or
    notices;

    [[Page 2710]]
    117 STAT. 2710

    (ii) the information required to be included
    in the message pursuant to subsection (a)(5); and
    (iii) instructions on how to access, or a
    mechanism to access, the sexually oriented
    material.
    (2) Prior affirmative consent.--Paragraph (1) does not apply
    to the transmission of an electronic mail message if the
    recipient has given prior affirmative consent to receipt of the
    message.
    (3) Prescription <> of marks and notices.--
    Not later than 120 days after the date of the enactment of this
    Act, the Commission in consultation with the Attorney General
    shall prescribe clearly identifiable marks or notices to be
    included in or associated with commercial electronic mail that
    contains sexually oriented material, in order to inform the
    recipient of that fact and to facilitate filtering of such
    electronic mail. The <> Commission shall publish in the Federal Register
    and provide notice to the public of the marks or notices
    prescribed under this paragraph.
    (4) Definition.--In this subsection, the term ``sexually
    oriented material'' means any material that depicts sexually
    explicit conduct (as that term is defined in section 2256 of
    title 18, United States Code), unless the depiction constitutes
    a small and insignificant part of the whole, the remainder of
    which is not primarily devoted to sexual matters.
    (5) Penalty.--Whoever knowingly violates paragraph (1) shall
    be fined under title 18, United States Code, or imprisoned not
    more than 5 years, or both.
    SEC. 6. BUSINESSES <> KNOWINGLY PROMOTED BY
    ELECTRONIC MAIL WITH FALSE OR MISLEADING
    TRANSMISSION INFORMATION.

    (a) In General.--It is unlawful for a person to promote, or allow
    the promotion of, that person's trade or business, or goods, products,
    property, or services sold, offered for sale, leased or offered for
    lease, or otherwise made available through that trade or business, in a
    commercial electronic mail message the transmission of which is in
    violation of section 5(a)(1) if that person--
    (1) knows, or should have known in the ordinary course of
    that person's trade or business, that the goods, products,
    property, or services sold, offered for sale, leased or offered
    for lease, or otherwise made available through that trade or
    business were being promoted in such a message;
    (2) received or expected to receive an economic benefit from
    such promotion; and
    (3) took no reasonable action--
    (A) to prevent the transmission; or
    (B) to detect the transmission and report it to the
    Commission.

    (b) Limited Enforcement Against Third Parties.--
    (1) In general.--Except as provided in paragraph (2), a
    person (hereinafter referred to as the ``third party'') that
    provides goods, products, property, or services to another
    person that violates subsection (a) shall not be held liable for
    such violation.
    (2) Exception.--Liability for a violation of subsection (a)
    shall be imputed to a third party that provides goods, products,
    property, or services to another person that violates subsection
    (a) if that third party--

    [[Page 2711]]
    117 STAT. 2711

    (A) owns, or has a greater than 50 percent ownership
    or economic interest in, the trade or business of the
    person that violated subsection (a); or
    (B)(i) has actual knowledge that goods, products,
    property, or services are promoted in a commercial
    electronic mail message the transmission of which is in
    violation of section 5(a)(1); and
    (ii) receives, or expects to receive, an economic
    benefit from such promotion.

    (c) Exclusive Enforcement by FTC.--Subsections (f) and (g) of
    section 7 do not apply to violations of this section.
    (d) Savings Provision.--Except as provided in section 7(f)(8),
    nothing in this section may be construed to limit or prevent any action
    that may be taken under this Act with respect to any violation of any
    other section of this Act.

    SEC. 7. <> ENFORCEMENT GENERALLY.

    (a) Violation Is Unfair or Deceptive Act or Practice.--Except as
    provided in subsection (b), this Act shall be enforced by the Commission
    as if the violation of this Act were an unfair or deceptive act or
    practice proscribed under section 18(a)(1)(B) of the Federal Trade
    Commission Act (15 U.S.C. 57a(a)(1)(B)).
    (b) Enforcement by Certain Other Agencies.--Compliance with this Act
    shall be enforced--
    (1) under section 8 of the Federal Deposit Insurance Act (12
    U.S.C. 1818), in the case of--
    (A) national banks, and Federal branches and Federal
    agencies of foreign banks, by the Office of the
    Comptroller of the Currency;
    (B) member banks of the Federal Reserve System
    (other than national banks), branches and agencies of
    foreign banks (other than Federal branches, Federal
    agencies, and insured State branches of foreign banks),
    commercial lending companies owned or controlled by
    foreign banks, organizations operating under section 25
    or 25A of the Federal Reserve Act (12 U.S.C. 601 and
    611), and bank holding companies, by the Board;
    (C) banks insured by the Federal Deposit Insurance
    Corporation (other than members of the Federal Reserve
    System) and insured State branches of foreign banks, by
    the Board of Directors of the Federal Deposit Insurance
    Corporation; and
    (D) savings associations the deposits of which are
    insured by the Federal Deposit Insurance Corporation, by
    the Director of the Office of Thrift Supervision;
    (2) under the Federal Credit Union Act (12 U.S.C. 1751 et
    seq.) by the Board of the National Credit Union Administration
    with respect to any Federally insured credit union;
    (3) under the Securities Exchange Act of 1934 (15 U.S.C. 78a
    et seq.) by the Securities and Exchange Commission with respect
    to any broker or dealer;
    (4) under the Investment Company Act of 1940 (15 U.S.C. 80a-
    1 et seq.) by the Securities and Exchange Commission with
    respect to investment companies;
    (5) under the Investment Advisers Act of 1940 (15 U.S.C.
    80b-1 et seq.) by the Securities and Exchange Commission with
    respect to investment advisers registered under that Act;

    [[Page 2712]]
    117 STAT. 2712

    (6) under State insurance law in the case of any person
    engaged in providing insurance, by the applicable State
    insurance authority of the State in which the person is
    domiciled, subject to section 104 of the Gramm-Bliley-Leach Act
    (15 U.S.C. 6701), except that in any State in which the State
    insurance authority elects not to exercise this power, the
    enforcement authority pursuant to this Act shall be exercised by
    the Commission in accordance with subsection (a);
    (7) under part A of subtitle VII of title 49, United States
    Code, by the Secretary of Transportation with respect to any air
    carrier or foreign air carrier subject to that part;
    (8) under the Packers and Stockyards Act, 1921 (7 U.S.C. 181
    et seq.) (except as provided in section 406 of that Act (7
    U.S.C. 226, 227)), by the Secretary of Agriculture with respect
    to any activities subject to that Act;
    (9) under the Farm Credit Act of 1971 (12 U.S.C. 2001 et
    seq.) by the Farm Credit Administration with respect to any
    Federal land bank, Federal land bank association, Federal
    intermediate credit bank, or production credit association; and
    (10) under the Communications Act of 1934 (47 U.S.C. 151 et
    seq.) by the Federal Communications Commission with respect to
    any person subject to the provisions of that Act.

    (c) Exercise of Certain Powers.--For the purpose of the exercise by
    any agency referred to in subsection (b) of its powers under any Act
    referred to in that subsection, a violation of this Act is deemed to be
    a violation of a Federal Trade Commission trade regulation rule. In
    addition to its powers under any provision of law specifically referred
    to in subsection (b), each of the agencies referred to in that
    subsection may exercise, for the purpose of enforcing compliance with
    any requirement imposed under this Act, any other authority conferred on
    it by law.
    (d) Actions by the Commission.--The Commission shall prevent any
    person from violating this Act in the same manner, by the same means,
    and with the same jurisdiction, powers, and duties as though all
    applicable terms and provisions of the Federal Trade Commission Act (15
    U.S.C. 41 et seq.) were incorporated into and made a part of this Act.
    Any entity that violates any provision of that subtitle is subject to
    the penalties and entitled to the privileges and immunities provided in
    the Federal Trade Commission Act in the same manner, by the same means,
    and with the same jurisdiction, power, and duties as though all
    applicable terms and provisions of the Federal Trade Commission Act were
    incorporated into and made a part of that subtitle.
    (e) Availability of Cease-and-Desist Orders and Injunctive Relief
    Without Showing of Knowledge.--Notwithstanding any other provision of
    this Act, in any proceeding or action pursuant to subsection (a), (b),
    (c), or (d) of this section to enforce compliance, through an order to
    cease and desist or an injunction, with section 5(a)(1)(C), section
    5(a)(2), clause (ii), (iii), or (iv) of section 5(a)(4)(A), section
    5(b)(1)(A), or section 5(b)(3), neither the Commission nor the Federal
    Communications Commission shall be required to allege or prove the state
    of mind required by such section or subparagraph.
    (f) Enforcement by States.--
    (1) Civil action.--In any case in which the attorney general
    of a State, or an official or agency of a State, has reason to
    believe that an interest of the residents of that State has been
    or is threatened or adversely affected by any person who

    [[Page 2713]]
    117 STAT. 2713

    violates paragraph (1) or (2) of section 5(a), who violates
    section 5(d), or who engages in a pattern or practice that
    violates paragraph (3), (4), or (5) of section 5(a), of this
    Act, the attorney general, official, or agency of the State, as
    parens patriae, may bring a civil action on behalf of the
    residents of the State in a district court of the United States
    of appropriate jurisdiction--
    (A) to enjoin further violation of section 5 of this
    Act by the defendant; or
    (B) to obtain damages on behalf of residents of the
    State, in an amount equal to the greater of--
    (i) the actual monetary loss suffered by such
    residents; or
    (ii) the amount determined under paragraph
    (3).
    (2) Availability of injunctive relief without showing of
    knowledge.--Notwithstanding any other provision of this Act, in
    a civil action under paragraph (1)(A) of this subsection, the
    attorney general, official, or agency of the State shall not be
    required to allege or prove the state of mind required by
    section 5(a)(1)(C), section 5(a)(2), clause (ii), (iii), or (iv)
    of section 5(a)(4)(A), section 5(b)(1)(A), or section 5(b)(3).
    (3) Statutory damages.--
    (A) In general.--For purposes of paragraph
    (1)(B)(ii), the amount determined under this paragraph
    is the amount calculated by multiplying the number of
    violations (with each separately addressed unlawful
    message received by or addressed to such residents
    treated as a separate violation) by up to $250.
    (B) Limitation.--For any violation of section 5
    (other than section 5(a)(1)), the amount determined
    under subparagraph (A) may not exceed $2,000,000.
    (C) Aggravated damages.--The court may increase a
    damage award to an amount equal to not more than three
    times the amount otherwise available under this
    paragraph if--
    (i) the court determines that the defendant
    committed the violation willfully and knowingly;
    or
    (ii) the defendant's unlawful activity
    included one or more of the aggravating violations
    set forth in section 5(b).
    (D) Reduction of damages.--In assessing damages
    under subparagraph (A), the court may consider whether--
    (i) the defendant has established and
    implemented, with due care, commercially
    reasonable practices and procedures designed to
    effectively prevent such violations; or
    (ii) the violation occurred despite
    commercially reasonable efforts to maintain
    compliance the practices and procedures to which
    reference is made in clause (i).
    (4) Attorney fees.--In the case of any successful action
    under paragraph (1), the court, in its discretion, may award the
    costs of the action and reasonable attorney fees to the State.
    (5) Rights <> of federal
    regulators.--The State shall serve prior written notice of any
    action under paragraph (1) upon

    [[Page 2714]]
    117 STAT. 2714

    the Federal Trade Commission or the appropriate Federal
    regulator determined under subsection (b) and provide the
    Commission or appropriate Federal regulator with a copy of its
    complaint, except in any case in which such prior notice is not
    feasible, in which case the State shall serve such notice
    immediately upon instituting such action. The Federal Trade
    Commission or appropriate Federal regulator shall have the
    right--
    (A) to intervene in the action;
    (B) upon so intervening, to be heard on all matters
    arising therein;
    (C) to remove the action to the appropriate United
    States district court; and
    (D) to file petitions for appeal.
    (6) Construction.--For purposes of bringing any civil action
    under paragraph (1), nothing in this Act shall be construed to
    prevent an attorney general of a State from exercising the
    powers conferred on the attorney general by the laws of that
    State to--
    (A) conduct investigations;
    (B) administer oaths or affirmations; or
    (C) compel the attendance of witnesses or the
    production of documentary and other evidence.
    (7) Venue; service of process.--
    (A) Venue.--Any action brought under paragraph (1)
    may be brought in the district court of the United
    States that meets applicable requirements relating to
    venue under section 1391 of title 28, United States
    Code.
    (B) Service of process.--In an action brought under
    paragraph (1), process may be served in any district in
    which the defendant--
    (i) is an inhabitant; or
    (ii) maintains a physical place of business.
    (8) Limitation on state action while federal action is
    pending.--If the Commission, or other appropriate Federal agency
    under subsection (b), has instituted a civil action or an
    administrative action for violation of this Act, no State
    attorney general, or official or agency of a State, may bring an
    action under this subsection during the pendency of that action
    against any defendant named in the complaint of the Commission
    or the other agency for any violation of this Act alleged in the
    complaint.
    (9) Requisite scienter for certain civil actions.--Except as
    provided in section 5(a)(1)(C), section 5(a)(2), clause (ii),
    (iii), or (iv) of section 5(a)(4)(A), section 5(b)(1)(A), or
    section 5(b)(3), in a civil action brought by a State attorney
    general, or an official or agency of a State, to recover
    monetary damages for a violation of this Act, the court shall
    not grant the relief sought unless the attorney general,
    official, or agency establishes that the defendant acted with
    actual knowledge, or knowledge fairly implied on the basis of
    objective circumstances, of the act or omission that constitutes
    the violation.

    (g) Action by Provider of Internet Access Service.--
    (1) Action authorized.--A provider of Internet access
    service adversely affected by a violation of section 5(a)(1),
    5(b), or 5(d), or a pattern or practice that violates paragraph
    (2), (3), (4), or (5) of section 5(a), may bring a civil action
    in

    [[Page 2715]]
    117 STAT. 2715

    any district court of the United States with jurisdiction over
    the defendant--
    (A) to enjoin further violation by the defendant; or
    (B) to recover damages in an amount equal to the
    greater of--
    (i) actual monetary loss incurred by the
    provider of Internet access service as a result of
    such violation; or
    (ii) the amount determined under paragraph
    (3).
    (2) Special definition of ``procure''.--In any action
    brought under paragraph (1), this Act shall be applied as if the
    definition of the term ``procure'' in section 3(12) contained,
    after ``behalf'' the words ``with actual knowledge, or by
    consciously avoiding knowing, whether such person is engaging,
    or will engage, in a pattern or practice that violates this
    Act''.
    (3) Statutory damages.--
    (A) In general.--For purposes of paragraph
    (1)(B)(ii), the amount determined under this paragraph
    is the amount calculated by multiplying the number of
    violations (with each separately addressed unlawful
    message that is transmitted or attempted to be
    transmitted over the facilities of the provider of
    Internet access service, or that is transmitted or
    attempted to be transmitted to an electronic mail
    address obtained from the provider of Internet access
    service in violation of section 5(b)(1)(A)(i), treated
    as a separate violation) by--
    (i) up to $100, in the case of a violation of
    section 5(a)(1); or
    (ii) up to $25, in the case of any other
    violation of section 5.
    (B) Limitation.--For any violation of section 5
    (other than section 5(a)(1)), the amount determined
    under subparagraph (A) may not exceed $1,000,000.
    (C) Aggravated damages.--The court may increase a
    damage award to an amount equal to not more than three
    times the amount otherwise available under this
    paragraph if--
    (i) the court determines that the defendant
    committed the violation willfully and knowingly;
    or
    (ii) the defendant's unlawful activity
    included one or more of the aggravated violations
    set forth in section 5(b).
    (D) Reduction of damages.--In assessing damages
    under subparagraph (A), the court may consider whether--
    (i) the defendant has established and
    implemented, with due care, commercially
    reasonable practices and procedures designed to
    effectively prevent such violations; or
    (ii) the violation occurred despite
    commercially reasonable efforts to maintain
    compliance with the practices and procedures to
    which reference is made in clause (i).
    (4) Attorney fees.--In any action brought pursuant to
    paragraph (1), the court may, in its discretion, require an
    undertaking for the payment of the costs of such action, and
    assess reasonable costs, including reasonable attorneys' fees,
    against any party.

    [[Page 2716]]
    117 STAT. 2716

    SEC. 8. <> EFFECT ON OTHER LAWS.

    (a) Federal Law.--(1) Nothing in this Act shall be construed to
    impair the enforcement of section 223 or 231 of the Communications Act
    of 1934 (47 U.S.C. 223 or 231, respectively), chapter 71 (relating to
    obscenity) or 110 (relating to sexual exploitation of children) of title
    18, United States Code, or any other Federal criminal statute.
    (2) Nothing in this Act shall be construed to affect in any way the
    Commission's authority to bring enforcement actions under FTC Act for
    materially false or deceptive representations or unfair practices in
    commercial electronic mail messages.
    (b) State Law.--
    (1) In general.--This Act supersedes any statute,
    regulation, or rule of a State or political subdivision of a
    State that expressly regulates the use of electronic mail to
    send commercial messages, except to the extent that any such
    statute, regulation, or rule prohibits falsity or deception in
    any portion of a commercial electronic mail message or
    information attached thereto.
    (2) State law not specific to electronic mail.--This Act
    shall not be construed to preempt the applicability of--
    (A) State laws that are not specific to electronic
    mail, including State trespass, contract, or tort law;
    or
    (B) other State laws to the extent that those laws
    relate to acts of fraud or computer crime.

    (c) No Effect on Policies of Providers of Internet Access Service.--
    Nothing in this Act shall be construed to have any effect on the
    lawfulness or unlawfulness, under any other provision of law, of the
    adoption, implementation, or enforcement by a provider of Internet
    access service of a policy of declining to transmit, route, relay,
    handle, or store certain types of electronic mail messages.

    SEC. 9. <> DO-NOT-E-MAIL REGISTRY.

    (a) In General.--Not <> later than 6
    months after the date of enactment of this Act, the Commission shall
    transmit to the Senate Committee on Commerce, Science, and
    Transportation and the House of Representatives Committee on Energy and
    Commerce a report that--
    (1) sets forth a plan and timetable for establishing a
    nationwide marketing Do-Not-E-Mail registry;
    (2) includes an explanation of any practical, technical,
    security, privacy, enforceability, or other concerns that the
    Commission has regarding such a registry; and
    (3) includes an explanation of how the registry would be
    applied with respect to children with e-mail accounts.

    (b) Authorization To Implement.--The Commission may establish and
    implement the plan, but not earlier than 9 months after the date of
    enactment of this Act.

    SEC. 10. <> STUDY OF EFFECTS OF COMMERCIAL
    ELECTRONIC MAIL.

    (a) In General.--Not <> later than 24
    months after the date of the enactment of this Act, the Commission, in
    consultation with the Department of Justice and other appropriate
    agencies, shall submit a report to the Congress that provides a detailed
    analysis of the effectiveness and enforcement of the provisions of this
    Act and the need (if any) for the Congress to modify such provisions.

    [[Page 2717]]
    117 STAT. 2717

    (b) Required Analysis.--The Commission shall include in the report
    required by subsection (a)--
    (1) an analysis of the extent to which technological and
    marketplace developments, including changes in the nature of the
    devices through which consumers access their electronic mail
    messages, may affect the practicality and effectiveness of the
    provisions of this Act;
    (2) analysis and recommendations concerning how to address
    commercial electronic mail that originates in or is transmitted
    through or to facilities or computers in other nations,
    including initiatives or policy positions that the Federal
    Government could pursue through international negotiations,
    fora, organizations, or institutions; and
    (3) analysis and recommendations concerning options for
    protecting consumers, including children, from the receipt and
    viewing of commercial electronic mail that is obscene or
    pornographic.
    SEC. 11. IMPROVING <> ENFORCEMENT BY PROVIDING REWARDS FOR
    INFORMATION ABOUT VIOLATIONS; LABELING.

    The Commission shall transmit to the Senate Committee on Commerce,
    Science, and Transportation and the House of Representatives Committee
    on Energy and Commerce--
    (1) a report, within 9 months after the date of enactment of
    this Act, that sets forth a system for rewarding those who
    supply information about violations of this Act, including--
    (A) procedures for the Commission to grant a reward
    of not less than 20 percent of the total civil penalty
    collected for a violation of this Act to the first
    person that--
    (i) identifies the person in violation of this
    Act; and
    (ii) supplies information that leads to the
    successful collection of a civil penalty by the
    Commission; and
    (B) procedures to minimize the burden of submitting
    a complaint to the Commission concerning violations of
    this Act, including procedures to allow the electronic
    submission of complaints to the Commission; and
    (2) a report, within 18 months after the date of enactment
    of this Act, that sets forth a plan for requiring commercial
    electronic mail to be identifiable from its subject line, by
    means of compliance with Internet Engineering Task Force
    Standards, the use of the characters ``ADV'' in the subject
    line, or other comparable identifier, or an explanation of any
    concerns the Commission has that cause the Commission to
    recommend against the plan.

    SEC. 12. RESTRICTIONS ON OTHER TRANSMISSIONS.

    Section 227(b)(1) of the Communications Act of 1934 (47 U.S.C.
    227(b)(1)) is amended, in the matter preceding subparagraph (A), by
    inserting ``, or any person outside the United States if the recipient
    is within the United States'' after ``United States''.

    SEC. 13. <> REGULATIONS.

    (a) In General.--The Commission may issue regulations to implement
    the provisions of this Act (not including the amendments made by
    sections 4 and 12). Any such regulations shall be issued in accordance
    with section 553 of title 5, United States Code.

    [[Page 2718]]
    117 STAT. 2718

    (b) Limitation.--Subsection (a) may not be construed to authorize
    the Commission to establish a requirement pursuant to section 5(a)(5)(A)
    to include any specific words, characters, marks, or labels in a
    commercial electronic mail message, or to include the identification
    required by section 5(a)(5)(A) in any particular part of such a mail
    message (such as the subject line or body).

    SEC. 14. <> APPLICATION TO WIRELESS.

    (a) Effect on Other Law.--Nothing in this Act shall be interpreted
    to preclude or override the applicability of section 227 of the
    Communications Act of 1934 (47 U.S.C. 227) or the rules prescribed under
    section 3 of the Telemarketing and Consumer Fraud and Abuse Prevention
    Act (15 U.S.C. 6102).
    (b) FCC <> Rulemaking.--The Federal Communications
    Commission, in consultation with the Federal Trade Commission, shall
    promulgate rules within 270 days to protect consumers from unwanted
    mobile service commercial messages. The Federal Communications
    Commission, in promulgating the rules, shall, to the extent consistent
    with subsection (c)--
    (1) provide subscribers to commercial mobile services the
    ability to avoid receiving mobile service commercial messages
    unless the subscriber has provided express prior authorization
    to the sender, except as provided in paragraph (3);
    (2) allow recipients of mobile service commercial messages
    to indicate electronically a desire not to receive future mobile
    service commercial messages from the sender;
    (3) take into consideration, in determining whether to
    subject providers of commercial mobile services to paragraph
    (1), the relationship that exists between providers of such
    services and their subscribers, but if the Commission determines
    that such providers should not be subject to paragraph (1), the
    rules shall require such providers, in addition to complying
    with the other provisions of this Act, to allow subscribers to
    indicate a desire not to receive future mobile service
    commercial messages from the provider--
    (A) at the time of subscribing to such service; and
    (B) in any billing mechanism; and
    (4) determine how a sender of mobile service commercial
    messages may comply with the provisions of this Act, considering
    the unique technical aspects, including the functional and
    character limitations, of devices that receive such messages.

    (c) Other Factors Considered.--The Federal Communications Commission
    shall consider the ability of a sender of a commercial electronic mail
    message to reasonably determine that the message is a mobile service
    commercial message.
    (d) Mobile Service Commercial Message Defined.--In this section, the
    term ``mobile service commercial message'' means a commercial electronic
    mail message that is transmitted directly to a wireless device that is
    utilized by a subscriber of commercial mobile service (as such term is
    defined in section 332(d) of the Communications Act of 1934 (47 U.S.C.
    332(d))) in connection with such service.

    SEC. 15. <> SEPARABILITY.

    If any provision of this Act or the application thereof to any
    person or circumstance is held invalid, the remainder of this Act and
    the application of such provision to other persons or circumstances
    shall not be affected.

    [[Page 2719]]
    117 STAT. 2719

    SEC. 16. <> EFFECTIVE DATE.

    The provisions of this Act, other than section 9, shall take effect
    on January 1, 2004.

    Approved December 16, 2003.

    LEGISLATIVE HISTORY--S. 877:
    ---------------------------------------------------------------------------

    SENATE REPORTS: No. 108-102 (Comm. on Commerce, Science, and
    Transportation).
    CONGRESSIONAL RECORD, Vol. 149 (2003):
    Oct. 22, considered and passed Senate.
    Nov. 21, considered and passed House, amended.
    Nov. 25, Senate concurred in House amendment with an
    amendment.
    Dec. 8, House concurred in Senate amendment.