(Sec. 5) Authorizes an Internet service provider (ISP) to decline to transmit such messages to its subscribers without compensation from the sender. Holds harmless an ISP for any action taken to block the transmission or receipt of such messages, or for the retransmission of such messages as an intermediary without knowledge that the transmission violates this Act.
(Sec. 6) Prohibits a person from using or disclosing domain name registration data if: (1) such use violates policies of that registrar that are clearly posted on its website; and (2) the data is used for transmitting or enabling the transmission of unsolicited bulk commercial e-mail. Holds harmless (with limitations) a registrar that fails or refuses to disclose such information on good faith that the information would be used to perform a prohibited act.
(Sec. 7) Outlines procedures for Federal Trade Commission (FTC) notification of alleged violators concerning the transmission of unsolicited commercial e-mail. Requires such notification to: (1) direct the person to discontinue further transmissions of such e-mail; (2) direct the person to immediately delete the e-mail addresses of such recipients from its directories or mailing lists; and (3) prohibit the person from transferring a mailing list that contains such addresses. Provides for enforcement of such requirements.
(Sec. 8) Directs the FTC to enforce this Act in the same manner as an FTC trade regulation.
(Sec. 9) Authorizes any ISP adversely affected by a violation under this Act, or a State on behalf of its residents, to bring an enforcement action in the appropriate district court.
(Sec. 12) Directs the FTC to report to Congress on: (1) the effectiveness of this Act in preventing or reducing the volume of unsolicited bulk commercial e-mail; (2) enforcement actions taken; and (3) the need, if any, for Congress to modify this Act.
[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 2542 Introduced in Senate (IS)]
106th CONGRESS
2d Session
S. 2542
To protect individuals, families, and ISPs from unsolicited bulk
commercial e-mail.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 11, 2000
Mr. Burns (for himself, Mr. Wyden, Mr. Lieberman, Ms. Landrieu, and Mr.
Torricelli) introduced the following bill; which was read twice and
referred to the Committee on Commerce, Science, and Transportation
_______________________________________________________________________
A BILL
To protect individuals, families, and ISPs from unsolicited bulk
commercial e-mail.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF SECTIONS.
-(a) Short Title.--This Act may be cited as the ``Controlling the
Assault of Non-Solicited Pornography and Marketing Act of 2000''.
(b) Table of Sections.--The table of sections for this Act is as
follows:
Sec. 1. Short title; table of sections.
Sec. 2. Findings.
Sec. 3. Public policy statement.
Sec. 4. Prohibited acts.
Sec. 5. Rules applicable to ISPs.
Sec. 6. Rules applicable to domain registrar information.
Sec. 7. Notification of violators.
Sec. 8. Enforcement of orders.
Sec. 9. Remedies available to ISPs.
Sec. 10. Enforcement by States.
Sec. 11. Effect on other laws.
Sec. 12. Commission study into effects of unsolicited bulk commercial
electronic mail.
Sec. 13. Definitions.
Sec. 14. Effective date.
SEC. 2. FINDINGS.
The Congress makes the following findings:
(1) There is a right of free speech on the Internet.
(2) The Internet has increasingly become a critical mode of
global communication and now presents unprecedented
opportunities for the development and growth of global commerce
and an integrated worldwide economy. In order for global
commerce on the Internet to reach its full potential,
individuals and entities using the Internet and other online
services should be prevented from engaging in activities that
prevent other users and ISPs from having a reasonably
predictable, efficient, and economical online experience.
(3) Unsolicited commercial e-mail can be an important
mechanism through which businesses advertise and attract
customers in the online environment.
(4) The receipt of unsolicited commercial e-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.
(5) Unsolicited commercial e-mail may impose significant
monetary costs on interactive computer services, businesses,
and educational and nonprofit institutions that carry and
receive such mail, as there is a finite volume of mail that
such providers, businesses, and institutions can handle without
further investment. The sending of such mail is increasingly
and negatively affecting the quality of service provided to
customers of interactive computer service, and shifting costs
from the sender of the advertisement to the interactive
computer service.
(6) While some senders of unsolicited commercial e-mail
provide simple and reliable ways for recipients to reject (or
``opt-out'' of) receipt of unsolicited commercial e-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 e-mail from such senders in the
future, or both.
(7) An increasing number of senders of unsolicited
commercial e-mail and unsolicited pandering e-mail purposefully
disguise the source of such mail so as to prevent recipients
from responding to such mail quickly and easily.
(8) Many senders of unsolicited commercial e-mail and
unsolicited pandering e-mail collect or harvest e-mail
addresses of potential recipients without the knowledge of
those recipients and in violation of the rules or terms of
service of the database from which such addresses are
collected.
(9) Because recipients of unsolicited commercial e-mail and
unsolicited pandering e-mail are unable to avoid the receipt of
such mail through reasonable means, such mail may invade the
privacy of recipients.
(10) In legislating against certain abuses on the Internet,
Congress should be very careful to avoid infringing in any way
upon constitutionally protected rights, including the rights of
assembly, free speech, and privacy.
SEC. 3. PUBLIC POLICY STATEMENT.
The Congress makes the following statement of public policy:
(1) There is substantial government interest in regulation
of unsolicited bulk commercial e-mail.
(2) The cost to the public of Internet use is increased by
costs incurred by ISPs for the transmission and retransmission
of unsolicited commercial e-mail.
(3) Recipients of unsolicited commercial e-mail have a
right to decline to receive or have their children receive
unsolicited commercial e-mail.
SEC. 4. PROHIBITED ACTS.
(a) Return Address Required.--It is unlawful for any person to
initiate the transmission of an unsolicited commercial e-mail message
to any person within the United States unless the message contains a
valid and legitimately obtained e-mail address, conspicuously
displayed, to which a recipient may send a reply to the sender asking
the sender to send no further unsolicited bulk commercial e-mail
messages to the recipient at the e-mail address at which the message
was received.
(b) Transmission After Requested Stop.--It is unlawful for a sender
to initiate the transmission of an unsolicited bulk commercial e-mail
message to a recipient who sent a reply under subsection (a) asking the
sender not to send further such e-mail to the recipient if the e-mail
message is sent more than 10 days after the sender received the reply.
(c) Falsification of Transmission Information.--It is unlawful for
any person to initiate the transmission of an unsolicited commercial e-
mail message to any person in the United States with false or
misleading e-mail transmission address or routing information. For
purposes of this subsection, information is misleading if it is
intended, or reasonably may be expected, to mislead the recipient about
the origin of the e-mail message or the address to which a reply may be
sent under subsection (a).
(d) Sale or Distribution of Prohibited Software.--It is unlawful
for any person knowingly to sell, give, or otherwise distribute, or to
possess with the intent to sell, give, or distribute any software,
that--
(1) is primarily designed or produced for the purpose of
facilitating or enabling the falsification of unsolicited
commercial e-mail transmission or routing information;
(2) has limited commercially-significant purposes or uses
other than to facilitate or enable the falsification of e-mail
transmission or routing information; or
(3) is marketed for the purpose of facilitating or enabling
the falsification of e-mail transmission or routing
information.
SEC. 5. RULES APPLICABLE TO ISPS.
(a) Transmission Without Compensation.--Notwithstanding any other
provision of law to the contrary, an ISP may decline to transmit
unsolicited commercial e-mail messages to its subscribers without
compensation from the sender.
(b) ISP Held Harmless for Good Faith Private Enforcement.--An ISP
is not liable, under any Federal or State civil or criminal law, for
any action it takes in good faith to block the transmission or receipt
of unsolicited commercial e-mail.
(c) Innocent Retransmission.--An ISP the facilities of which are
used only as an intermediary, retransmitter, or relay for unsolicited
bulk commercial e-mail transmitted in violation of section 4 is not
liable for any harm resulting from the transmission or receipt of that
e-mail unless it permits the transmission or retransmission of such e-
mail with actual knowledge that the transmission is prohibited by
section 4.
SEC. 6. RULES APPLICABLE TO DOMAIN REGISTRAR INFORMATION.
(a) Unlawful Disclosure or Use.--It is unlawful for any person
within the United States to use or disclose domain name registration
data, obtained from a domain name registrar, domain name registry, or
other domain registration authority if--
(1) that use or disclosure violates policies of that
registrar, registry, or authority that are clearly and
conspicuously posted on its website; and
(2) the data is used for the purpose of transmitting or
enabling the transmission of unsolicited bulk commercial e-mail
in violation of section 4.
(b) No Liability for Failure To Disclose.--Except as provided in
subsection (c), a domain name registrar, domain name registry, or other
domain registration authority is not liable from any harm resulting
from its failure or refusal to disclose domain name registration data
if that failure or refusal is based on a good faith belief that
disclosure of the data would result in its being used to transmit, or
enable the transmission of, an unsolicited commercial e-mail message in
violation of section 4.
(c) Limitation.--Subsection (b) does not permit a domain name
registrar, domain name registry, or other domain registration authority
to limit or restrict access to domain name registration data if that
access is sought for the purpose of--
(1) enforcing intellectual property rights;
(2) law enforcement; or
(3) consumer protection.
SEC. 7. NOTIFICATION OF VIOLATORS.
(a) Notification Process.--
(1) In general.--The Commission shall send a notification
of alleged violation to any person who violates section 4 if--
(A) the Commission has been notified, in such form
and manner as the Commission may prescribe, by a
recipient or Internet Service Provider that an
unsolicited bulk commercial e-mail message has been
received that was transmitted in violation of section
4; or
(B) the Commission has other reason to believe that
such person has violated or is violating section 4.
(2) Recipient's children to be personally identified.--If
requested by a recipient of an unsolicited bulk commercial e-
mail message that was transmitted in violation of section 4,
the Commission shall include the e-mail address of any child of
the recipient in the notice.
(3) Terms of notification.--The notification shall--
(A) direct the person to which it is addressed to
refrain from initiating or transmitting further
unsolicited bulk commercial e-mail messages to any e-
mail address described in the notification or to an
Internet Service Provider designated in the
notification more than 10 days after the date on which
the notification is issued; and
(B) direct that person to delete, immediately, the
e-mail address of any recipient or recipient's child
named in the notification from all of that person's e-
mail directories or mailing lists (except for the
purpose of complying with the notification); and
(C) prohibit that person from transferring, with or
without consideration, or otherwise making available,
to any other person a mailing list that contains the e-
mail address of any recipient or recipient's child
named in the notification (except for the purpose of
complying with the notification).
(b) Enforcement of Notification Terms.--
(1) Notice.--If the Commission finds that a person has
failed to comply with the terms of a notification issued under
subsection (a), the Commission shall serve a complaint, by
registered or certified mail, on that person--
(A) setting forth the Commission's finding and the
reasons therefore; and
(B) requiring that person to respond in writing to
the Commission within 15 days after the date on which
the complaint was served setting forth any defense, in
fact or in law, to the Commission's finding.
(2) Hearing and order.--If the Commission, after an
opportunity for a hearing on the record, determines that the
person upon whom the complaint was served violated the terms of
the notification, the Commission shall issue an order directing
that person to comply with the terms of the notification.
(c) Enforcement by Court Order.--
(1) In general.--Any district court of the United States
within the jurisdiction of which an e-mail transmission is sent
or received in violation of a notification given under or the
regulations prescribed under section 4 shall have jurisdiction,
upon application by the Attorney General, to issue an order
commanding compliance with such notice. Failure to observe such
order may be punishable by the court as contempt thereof.
(2) Remedy not exclusive.--The remedy provided by paragraph
(1) is in addition to any enforcement by the Commission under
section 9.
SEC. 8. ENFORCEMENT OF ORDERS.
(a) In General.--Except as otherwise provided in this Act, this Act
shall be enforced by the Commission in the same manner as a trade
regulation of the Commission.
(b) 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 title 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 title.
SEC. 9. REMEDIES AVAILABLE TO ISPS.
(a) In General.--An ISP adversely affected by a violation of
section 4 may bring a civil action in any district court of the United
States with jurisdiction over the defendant--
(1) to enjoin further violation of that section by the
defendant;
(2) to recover actual damages incurred by the ISP as a
result of that violation; and
(3) to recover, in addition to such actual damages, an
amount equal to the greater of--
(A) $1 for each unsolicited bulk commercial e-mail
message transmitted in violation of section 4 that
caused the ISP to suffer harm; or
(B) $50,000 for each day on which the defendant
committed the violation that caused the ISP to suffer
harm.
(b) Willful Violation.--If the court finds that the defendant
committed the violation willfully and knowingly, the court may increase
the amount recoverable under subsection (a)(3) threefold.
(c) Court Costs; Attorneys Fees.--The court, in any action brought
under subsection (a), may award court costs, including the cost of
service of process, expert witness fees, and reasonable attorneys' fees
to the prevailing party.
(d) Protection of Trade Secrets.--At the request of any party to an
action brought under subsection (a), the court may issue appropriate
protective orders and conduct proceedings in such a way as to protect
the secrecy and security of any computer, computer network, computer
data, computer program, and computer software involved in the action to
the extent necessary--
(1) to protect the trade secrets of any party; and
(2) to prevent the possible recurrence of a violation.
SEC. 10. ENFORCEMENT BY STATES.
(a) In General.--
(1) Civil actions.--In any case in which the attorney
general 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 the engagement of any person in a
practice that violates section 4, 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 to--
(A) enjoin that practice;
(B) enforce compliance with the rule;
(C) obtain damage, restitution, or other
compensation on behalf of residents of the State; or
(D) obtain such other relief as the court may
consider to be appropriate.
(2) Notice.--
(A) In general.--Before filing an action under
paragraph (1), the attorney general of the State
involved shall provide to the Commission--
(i) written notice of that action; and
(ii) a copy of the complaint for that
action.
(B) Exemption.--
(i) In general.--Subparagraph (A) shall not
apply with respect to the filing of an action
by an attorney general of a State under this
subsection, if the attorney general determines
that it is not feasible to provide the notice
described in that subparagraph before the
filing of the action.
(ii) Notification.--In an action described
in clause (i), the attorney general of a State
shall provide notice and a copy of the
complaint to the Commission at the same time as
the attorney general files the action.
(b) Intervention.--
(1) In general.--On receiving notice under subsection
(a)(2), the Commission shall have the right to intervene in the
action that is the subject of the notice.
(2) Effect of intervention.--If the Commission intervenes
in an action under subsection (a), it shall have the right--
(A) to be heard with respect to any matter that
arises in that action; and
(B) to file a petition for appeal.
(c) Construction.--For purposes of bringing any civil action under
subsection (a), 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--
(1) conduct investigations;
(2) administer oaths or affirmations; or
(3) compel the attendance of witnesses or the production of
documentary and other evidence.
(d) Venue; Service of Process.--
(1) Venue.--Any action brought under subsection (a) 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.
(2) Service of process.--In an action brought under
subsection (a), process may be served in any district in which
the defendant--
(A) is an inhabitant; or
(B) may be found.
SEC. 11. EFFECT ON OTHER LAWS.
(a) No Effect on Criminal Law.--Nothing in this Act shall be
construed to impair the enforcement of section 223 or 231 of the
Communications Act of 1934, 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.
(b) State Law.--
(1) In general.--No State or political subdivision of a
State may impose civil liability for any commercial activity or
other act in interstate or foreign commerce in violation of
section 4 that is inconsistent with the treatment of that
activity or act under this Act.
(2) Exception.--Paragraph (1) does not preempt--
(A) any civil remedy available under State or local
trespass law; or
(B) any Federal, State, or local criminal law, or
any civil remedy available under such law, relating to
acts of computer fraud or abuse arising from the
unauthorized transmission of unsolicited commercial e-
mail messages.
SEC. 12. COMMISSION STUDY INTO EFFECTS OF UNSOLICITED BULK COMMERCIAL
ELECTRONIC MAIL.
Not later than 18 months after the date of enactment of this Act,
the Commission shall submit to Congress a report on--
(1) the effectiveness of this Act in preventing or reducing
the volume of unsolicited bulk commercial e-mail;
(2) enforcement actions taken under this Act; and
(3) the need, if any, for Congress to modify the provisions
of this Act.
SEC. 13. DEFINITIONS.
In this Act:
(1) Child.--The term ``child'' means an individual under
the age of 13.
(2) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(3) Domain name.--The term ``domain name'' means an
alphanumeric designation which is registered with or assigned
by a domain name registrar, domain name registry, or other
domain name registration authority as part of an electronic
address on the Internet.
(4) E-mail address.--
(A) In general.--The term ``e-mail address'' means
a destination (commonly expressed as a string of
characters) to which e-mail can be sent or delivered.
(B) Inclusion.--In the case of the Internet, the
term ``e-mail address'' may include an e-mail address
consisting of a 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'').
(5) Internet.--The term ``Internet'' means collectively the
myriad of computer and telecommunications facilities, including
equipment and operating software, which comprise the
interconnected world-wide network of networks that employ the
Transmission Control Protocol/Internet Protocol, or any
predecessor or successor protocols to such protocol, to
communicate information of all kinds by wire or radio.
(6) ISP.--The term ``ISP'' means a service that enables
users to access content, information, e-mail, or other services
offered over the Internet and may also include access to
proprietary content, information, and other services as part of
a package of services offered to consumers. Such term does not
include telecommunications services.
(7) Sender.--The term ``sender'' when used with respect to
an e-mail message--
(A) means the person who initiated the transmission
of such message, or caused the initiation of the
transmission of that message; but
(B) does not include--
(i) an ISP whose role is limited to
handling, transmission, or retransmission of
that message; or
(ii) any other person affiliated with the
person who initiated or caused the
transmission.
(8) Pre-existing business relationship.--The term ``pre-
existing business relationship'' means that, before the message
was transmitted--
(A) the sender and the recipient had a business
relationship within the preceding 60 months;
(B) the recipient requested information contained
in the message; or
(C) the recipient was given an opportunity, by the
sender, to request that the sender not transmit
messages to the recipient and has not made such a
request.
(9) Recipient.--The term ``recipient'' when used with
respect to an e-mail message means any addressee of that
message.
(10) Commercial e-mail message.--The term ``commercial e-
mail message'' means an e-mail message the primary purpose of
which is to propose a commercial transaction or to advertise a
commercial product or service. An e-mail message shall not be
considered to be a commercial e-mail message solely because it
includes a reference to a commercial entity.
(11) Unsolicited commercial e-mail message.--The term
``unsolicited commercial e-mail message'' means any commercial
e-mail message sent with the intent that the message be
received by a recipient with whom the sender does not have a
pre-existing business or personal relationship.
(12) Unsolicited bulk commercial e-mail message.--The term
``unsolicited bulk commercial e-mail message'' means at least
50 substantially identical unsolicited commercial e-mail
messages whether sent simultaneously, in packets of less than
50, or individually.
SEC. 14. EFFECTIVE DATE.
This Act shall take effect 90 days after the date of enactment.
<all>
Introduced in Senate
Read twice and referred to the Committee on Commerce, Science, and Transportation.
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