Anti-Spam Act of 2003 - Prohibits a person from initiating in interstate commerce any commercial electronic mail (commercial email) message unless the message contains: (1) identification as commercial email; (2) notice of an opt-out opportunity, along with an email address or other mechanism for doing so; and (3) a valid physical street address of the sender. Prohibits the transmission of commercial email: (1) after valid objection; (2) with false or misleading header information or subject headings; (3) from illegally harvested email addresses, including addresses generated by automated means; or (4) without warning labels on commercial email containing sexually oriented material.
Provides a right of enforcement action for: (1) providers of Internet access service; (2) States on behalf of any of their residents; and (3) the Federal Trade Commission (FTC).
Amends the Federal criminal code to provide criminal penalties for: (1) falsifying the identity of a commercial email sender; (2) failing to place warning labels on commercial email containing sexually oriented material; (3) repeat offenses and bulk email violations; and (4) illegal harvesting of email addresses. Provides for enforcement of such penalties through actions by Internet service providers, the FTC and the Attorney General, and State attorneys general.
Requires the FTC to report to Congress regarding the need to protect the rights of users of email to avoid receiving unsolicited commercial email.
[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2515 Introduced in House (IH)]
108th CONGRESS
1st Session
H. R. 2515
To prevent unsolicited commercial electronic mail.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 18, 2003
Mrs. Wilson of New Mexico (for herself, Mr. Green of Texas, Mr.
Pickering, Mr. Dingell, Mrs. Cubin, Mr. Conyers, Mr. Shadegg, Mr.
Markey, Mr. Pitts, Mr. Boucher, Mr. Walden of Oregon, Ms. Eshoo, Mr.
Terry, Mr. Stupak, Mr. Pence, Ms. McCarthy of Missouri, Mr.
Frelinghuysen, Mr. Strickland, Mr. McInnis, Mrs. Capps, Ms. Schakowsky,
Mr. Rodriguez, Mr. Baca, Mr. Frank of Massachusetts, Mr. Cramer, Mr.
Skelton, and Mr. Langevin) introduced the following bill; which was
referred to the Committee on Energy and Commerce, and in addition to
the Committee on the Judiciary, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To prevent unsolicited commercial electronic mail.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Anti-Spam Act of
2003''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title and table of contents.
Sec. 2. Congressional findings and policy.
TITLE I--PROTECTIONS AGAINST CERTAIN COMMERCIAL ELECTRONIC MAIL
Sec. 101. Restrictions on commercial electronic mail.
Sec. 102. Private right of action for providers of Internet access
service.
Sec. 103. Actions by States.
Sec. 104. Attorney's fees.
Sec. 105. Enforcement by Federal Trade Commission.
Sec. 106. Exclusiveness of remedies.
TITLE II--AMENDMENTS TO TITLE 18, UNITED STATES CODE
Sec. 201. Criminal penalties and related provisions.
TITLE III--GENERAL PROVISIONS
Sec. 301. Regulations and report.
Sec. 302. Effect on other laws.
Sec. 303. Study of effectiveness and enforcement.
Sec. 304. Definitions.
Sec. 305. Effective date.
SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.
(a) Findings.--The Congress finds the following:
(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 Internet service providers from having
a reasonably predictable, efficient, and economical online
experience.
(3) Commercial electronic mail can be an important
mechanism through which businesses advertise and contact
consumers in the online environment.
(4) The receipt of unwanted 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.
(5) Unwanted commercial electronic mail may impose
significant monetary costs on Internet access services,
businesses, and educational and nonprofit institutions that
carry and receive such mail, as there is a finite volume of
mail that such providers, businesses, and institutions can
handle without further investment. The sending of such mail is
increasingly and negatively affecting the quality of service
provided to customers of Internet access service, and shifting
costs from the sender of the advertisement to the Internet
access service.
(6) While some senders of commercial electronic mail
messages provide simple and reliable ways for recipients to
reject (or ``opt-out'' of) receipt of unsolicited 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.
(7) An increasing number of senders of commercial
electronic 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 electronic mail
collect or harvest electronic 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 unwanted commercial electronic
mail are often unable to avoid the receipt of such mail through
reasonable means, such mail may invade the privacy of
recipients and infringe on their privacy rights.
(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.
(b) Congressional Determination of Public Policy.--On the basis of
the findings in subsection (a), the Congress determines that--
(1) there is substantial government interest in regulation
of commercial electronic mail;
(2) Consumers and Internet service providers should not be
compelled to bear the costs of unwanted commercial electronic
mail; and
(3) recipients of commercial electronic mail have a right
to decline to receive or have their children receive unwanted
commercial electronic mail.
TITLE I--PROTECTIONS AGAINST CERTAIN COMMERCIAL ELECTRONIC MAIL
SEC. 101. RESTRICTIONS ON COMMERCIAL ELECTRONIC MAIL.
(a) Required Inclusions in Commercial Electronic Mail.--
(1) Inclusion of identifier, opt-out, e-mail address, and
physical address.--No person may initiate in or affecting
interstate commerce the transmission, to a covered computer, of
any commercial electronic mail message unless the message
contains all of the following:
(A) Identification.--Clear and conspicuous
identification that the message is a commercial
electronic mail message.
(B) Notice of opt-out.--Clear and conspicuous
notice of the opportunity under subparagraph (C) to
decline to receive future commercial electronic mail
messages from the sender or any covered affiliate of
the sender.
(C) E-mail address or other mechanism to opt-out.--
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 by the sender, a reply
electronic mail message or other form of
Internet-based communication requesting not to
receive any future commercial electronic mail
messages from that sender, or any covered
affiliate of the sender, at the electronic mail
address where the message was received;
(ii) in the case of any such other
Internet-based mechanism, when so used,
directly submits such a request or clearly and
conspicuously provides a manner for submitting
such a request; and
(iii) remains capable of receiving such
messages or communications for no less than 30
days after the transmission of the original
message.
(D) Street address.--A valid physical street
address of the sender.
(2) More detailed requests possible.--In a message
complying with the requirements of paragraph (1)(C), the sender
of a commercial electronic mail message may also include, in
the message, options for the recipient to submit more detailed
requests concerning the types of commercial electronic mail
messages that the recipient does or does not wish to receive in
the future from the sender, or a covered affiliate of the
sender, based upon products, services, divisions,
organizations, companies, or other selections.
(3) Temporary inability to receive messages.--A return
electronic mail address or other mechanism does not fail to
satisfy the requirements of paragraph (1)(C) if it is
unexpectedly and temporarily unable to receive messages due to
a problem beyond the control of the sender, if the problem with
receiving messages is corrected within a reasonable time
period.
(b) Prohibition of Transmission of Commercial Electronic Mail After
Objection.--
(1) In general.--If a recipient makes a request to a
sender, using a mechanism provided pursuant to subsection
(a)(1)(C), not to receive some or any commercial electronic
mail messages from such sender, or any covered affiliate of the
sender, except as provided in paragraph (2)--
(A) the sender, or any covered affiliate of the
sender, may not initiate the transmission to the
recipient, during the 5-year period beginning the
shortest period of time after the receipt of such
request as is reasonable to allow effectuation of such
request, as the Commission shall determine, of any
commercial electronic mail message that falls within
the scope of the request, except that during any period
beginning upon the effective date under section 305 and
ending upon the determination by the Commission
regarding such shortest reasonable period, such 5-year
period shall begin 10 days after receipt of such
request;
(B) no person acting on behalf of the sender or any
covered affiliate of the sender may initiate the
transmission to the recipient, during the 5-year period
beginning the shortest period of time after the receipt
by such person of such request as is reasonable to
allow effectuation of such request, as the Commission
shall determine, of any commercial electronic mail
message that falls within the scope of the request,
except that during any period beginning upon the
effective date under section 305 and ending upon the
determination by the Commission regarding such shortest
reasonable period, such 5-year period shall begin 10
days after receipt of such request;
(C) no person acting on behalf of the sender, or
any covered affiliate of the sender, may assist in
initiating the transmission to the recipient, through
the provision or selection of addresses to which the
message will be transmitted, of any commercial
electronic mail message that would violate subparagraph
(A) or (B); and
(D) the sender, or any covered affiliate of the
sender, may not 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 any other provision of
law.
(2) Subsequent consent to commercial electronic mail
messages.--Notwithstanding a recipient's most recent request
described in paragraph (1) to a sender, such request shall not
be considered to have been made for purposes of such paragraph,
with respect to a commercial electronic mail message if--
(A) the message falls within the scope of an
express and unambiguous invitation or consent granted
by the recipient subsequent to such request made; and
(B) the recipient had clear and conspicuous notice,
at the time such invitation or consent was granted,
of--
(i) the fact that the recipient was
granting the invitation or consent;
(ii) the scope of the invitation or
consent, including what types of commercial
electronic mail messages would be covered by
the invitation or consent and what senders or
types of senders, if any, other than the party
to whom the invitation or consent was
communicated would be covered by the invitation
or consent; and
(iii) the mechanism under subsection
(a)(1)(C).
(c) Prohibition of Commercial Electronic Mail With False or
Misleading Header Information or Subject Headings.--No person may
initiate in or affecting interstate commerce the transmission, to a
covered computer, of any commercial electronic mail message or any
commercial transactional electronic mail message, that--
(1) contains or is accompanied by header information that
is false or misleading (including header information that uses
a third party's domain name without the third party's
permission); for purposes of this paragraph, header information
that includes an originating electronic mail address the use of
which in connection with the message was not authorized by a
legitimate holder of the address, or access to which was
obtained by means of false or fraudulent pretense or
representations, shall be considered misleading; or
(2) contains a subject heading that would be likely to
mislead a recipient, acting reasonably under the circumstances,
about a material fact regarding the contents or subject matter
of the message.
(d) Prohibition of Transmission of Certain Commercial Electronic
Mail From Illegally Harvested Electronic Mail Addresses.--
(1) In general.--No person may initiate in or affecting
interstate commerce the transmission, to a covered computer, of
a commercial electronic mail message that is prohibited under
subsection (a), (b), or (c), or assist in the origination of
such a message through the provision or selection of electronic
mail addresses to which the transmission of such message is
initiated, if--
(A) 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
(B) the website or proprietary online service from
which the address was obtained included, at the time
the address was obtained, a notice stating that the
operator of such a website or proprietary online
service will not give, sell, or otherwise transfer
addresses maintained by such site or service to any
other party for the purpose of initiating, or enabling
others to initiate, commercial electronic mail
messages.
(2) Disclaimer.--Nothing in this subsection creates an
ownership or proprietary interest in such electronic mail
addresses.
(e) Prohibition of Dictionary Attacks of Commercial Electronic
Mail.--No person may--
(1) initiate in or affecting interstate commerce the
transmission, to a covered computer, of any commercial
electronic mail message or any commercial transactional
electronic mail message, if the electronic mail address of the
recipient was generated messages by use of automated means
based on permutations of combining names, letters, or numbers
for the purpose of sending commercial electronic mail; or
(2) assist in initiating, in or affecting interstate
commerce, such a message through such generation of electronic
mail addresses to which the transmission of the message is
initiated.
(f) 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 covered computer, of
any commercial electronic mail message that includes sexually
oriented material and--
(A) fail to include in subject heading for the
electronic mail message the marks or notices prescribed
by the Commission under this subsection; or
(B) fail to provide that the matter in the message
that is initially viewable to the recipient, when the
message is opened by any recipient and absent any
further actions by the recipient, includes only--
(i) to the extent required or authorized
pursuant to paragraph (2), any such marks or
notices;
(ii) the information required to be
included in the message pursuant to
subparagraphs (B) and (C) of subsection (a)(1);
and
(iii) instructions on how to access, or a
mechanism to access, the sexually oriented
material.
(2) Prescription of marks and notices.--Not later than 120
days after the date of the enactment of this Act, the
Commission shall prescribe 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.
(3) 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.
SEC. 102. PRIVATE RIGHT OF ACTION FOR PROVIDERS OF INTERNET ACCESS
SERVICE.
(a) Authorization.--A provider of Internet access service adversely
affected by--
(1) a pattern or practice of violations of section 101(a),
subparagraph (A), (B), or (C) of section 101(b)(1), or the
regulations prescribed under such section or subparagraph, or
(2) a violation of subsection (c), (d), (e), or (f) of
section 101 or the regulations prescribed under such
subsection,
may bring, in an appropriate district court of the United States,
either or both of the civil actions under subsection (b).
(b) Civil Actions.--The civil actions under this subsection are as
follows:
(1) Injunction.--An action to enjoin the defendant from
further engaging in such pattern or practice or committing any
further violation, as appropriate.
(2) Damages.--An action to obtain damages in an amount
equal to the greater of--
(A) the actual damages incurred by the provider of
Internet access service as a result of such violation;
or
(B) the amount determined under subsection (c).
(c) Statutory Damages.--
(1) Violations of required inclusion and opt-out
provisions.--In the case of a violation described in subsection
(a)(1) of this section:
(A) Damages per violation.--Except as provided in
subparagraphs (B), (C), and (D), the amount determined
under this subsection is $10 for each separate
electronic mail address to which is initiated, in
violation of such subsection, the transmission of a
commercial electronic mail message, over the facilities
of the provider of Internet access service.
(B) Limitation.--Except as provided in
subparagraphs (C) and (D), for each commercial
electronic mail message the transmission of which is
unlawfully initiated and that is addressed to multiple
electronic mail addresses, the amount determined under
subparagraph (A) may not exceed $500,000.
(C) Treble damages for intentional violations.--If
the court finds in an action for such a violation that
the defendant committed the violation willfully or
knowingly, the court may, in its discretion, increase
the amount of the limitation under subparagraph (B) to
an amount equal to not more than three times the amount
otherwise available under such subparagraph, not to
exceed $1,500,000.
(D) Reduction.--
(i) In general.--Subject to clause (ii),
the court shall reduce the amount under
subparagraph (A) for each violation if the
court determines that--
(I) the defendant established and
implemented, with due care, reasonable
practices and procedures intended to
prevent such violations; and
(II) such violations occurred
despite good faith efforts to maintain
compliance with such practices and
procedures.
(ii) Limitation.--If the amount otherwise
determined under this paragraph exceeds
$75,000, the court may not reduce the amount
under subparagraph (A) of this paragraph for
each violation such that the amount determined
under this paragraph is less than $75,000.
(2) Violations of header information, subject heading,
harvesting, dictionary attack, and sexually oriented material
provisions.--In the case of a violation described in subsection
(a)(2) of this section, the amount determined under this
subsection is $100 for each separate electronic mail address to
which the transmission of an electronic mail message is
initiated in violation of such subsection.
SEC. 103. ACTIONS BY STATES.
(a) Civil Action.--In any case in which the attorney general of a
State has reason to believe that the interests of the residents of that
State have been or are being threatened or adversely affected because
any person has engaged or is engaging in--
(1) a pattern or practice of initiating transmissions to
residents of that State that violates subsection (a) or (b) of
section 101 or the regulations prescribed under such section,
or
(2) a violation of subsection (c), (d), (e), or (f) of
section 101 or the regulations prescribed under such section,
the State, as parens patriae, may bring either or both of the civil
actions under subsection (b) on behalf of its residents.
(b) Civil Actions.--The civil actions under this subsection are as
follows:
(1) Injunction.--An action to enjoin the defendant from
further engaging in such pattern or practice or committing any
further violation, as appropriate.
(2) Damages.--An action to obtain damages on behalf of
residents of the State, in an amount equal to the greater of--
(A) the actual damages suffered by such residents;
or
(B) the amount determined under subsection (c).
(c) Statutory Damages.--
(1) Per violation.--Except as provided in paragraph (2),
for purposes of subsection (a)(2)(B), the amount determined
under this subsection is $500 for each separate electronic mail
address to which the transmission of an electronic mail message
is initiated in violation of section 101 or the regulations
prescribed under such section.
(2) Treble damages for intentional violations.--In an
action under this section, the court may, in its discretion,
increase the amount of the award to an amount equal to not more
than three times the amount otherwise available under paragraph
(1) if the court determines that the defendant willfully or knowingly
violated section 101 or the regulations prescribed under such section.
(d) Exclusive Jurisdiction of Federal Courts.--The district courts
of the United States, the United States courts of any territory, and
the District Court of the United States for the District of Columbia
shall have exclusive jurisdiction over all civil actions brought under
this section. Upon proper application, such courts shall also have
jurisdiction to issue writs of mandamus, or orders affording like
relief, commanding the defendant to comply with the provisions of
section 101 or the regulations prescribed under such section, including
the requirement that the defendant take such action as is necessary to
remove the danger of such violation. Upon a proper showing, a permanent
or temporary injunction or restraining order against the defendant
shall be granted without bond.
(e) Rights of Commission.--
(1) Notice of state action and intervention.--The State
shall serve prior written notice of any civil action under this
section upon the Commission and provide the Commission with a
copy of its complaint, except in any case where such prior
notice is not feasible, in which case the State shall serve
such notice immediately upon instituting such action. Upon
receiving a notice regarding a civil action, the Commission
shall have the right to intervene in the action and, upon so
intervening, to be heard on all matters arising in the action,
and to file petitions for appeal.
(2) Limitation in cases of action by commission.--Whenever
a civil action has been instituted by or on behalf of the
Commission for a violation of section 101 or the regulations
prescribed under such section, no State may, during the
pendency of such action instituted by or on behalf of the
Commission, institute a civil action under this section against
any defendant named in the complaint in such action for any
such violation alleged in such complaint.
(f) Venue and Service of Process.--Any civil action brought under
this section in a district court of the United States may be brought in
the district in which the defendant is found, is an inhabitant, or
transacts business or wherever venue is proper under section 1391 of
title 28, United States Code. Process in such an action may be served
in any district in which the defendant is an inhabitant or in which the
defendant may be found.
(g) Investigatory Powers.--For purposes of bringing any civil
action under this section, nothing in this Act shall prevent the
attorney general of a State from exercising the powers conferred on the
attorney general by the laws of such State to conduct investigations or
to administer oaths or affirmations or to compel the attendance of
witnesses or the production of documentary and other evidence.
(h) Actions by Other State Officials.--
(1) Violations of state law.--Nothing in this section shall
prohibit an authorized State official from proceeding in State
court on the basis of an alleged violation of any civil or
criminal statute of such State.
(2) Authorized state officers.--In addition to actions
brought by an attorney general of a State under subsection (a)
of this section, such an action may be brought by officers of
such State who are authorized by the State to bring actions in
such State on behalf of its residents.
SEC. 104. ATTORNEY'S FEES.
In any action brought under section 102 or 103, the court may, in
its discretion, require an undertaking for the payment of costs of such
action, and assess reasonable costs, including reasonable attorneys'
fees, against any party found in the action to have committed a
violation on which the action was based.
SEC. 105. ENFORCEMENT BY FEDERAL TRADE COMMISSION.
The same powers and authorities by which the Federal Trade
Commission and the Attorney General enforce compliance, by persons
subject to the jurisdiction of the Commission under the Federal Trade
Commission Act, with the provisions of such Act and the regulations
issued thereunder by the Commission, shall be available to the
Commission and the Attorney General to enforce compliance, by all
persons, with the provisions of section 101 of this Act and the
regulations issued under such section. For purposes of exercising such
powers and authorities to enforce compliance with rules issued under
section 101 of this Act, such rules shall be treated as having been
issued under section 18 of the Federal Trade Commission Act
(notwithstanding issuance in accordance with section 301(a) of this
Act).
SEC. 106. EXCLUSIVENESS OF REMEDIES.
The remedies of this title are the exclusive civil remedies for
violations of section 101.
TITLE II--AMENDMENTS TO TITLE 18, UNITED STATES CODE
SEC. 201. CRIMINAL PENALTIES AND RELATED PROVISIONS.
(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. Definitions for chapter.
``622. Falsifying sender's identity in commercial electronic mail
``623. Failure to place warning labels on commercial electronic mail
containing sexually oriented material.
``624. Criminal penalties for violation of certain sections.
``625. Illicit harvesting of electronic mail addresses.
``626. Civil enforcement of chapter.
``Sec. 621. Definitions for chapter
``In this chapter, the following definitions apply:
``(1) Commercial Electronic Mail Message.--
``(A) In general.--The term `commercial electronic
mail message' means any electronic mail message that
contains a commercial advertisement or promotion of a
product or service.
``(B) Reference to company.--The inclusion of a
reference to a commercial entity in an electronic mail
message does not, by itself, constitute a commercial
advertisement or promotion of a product or service.
``(2) Electronic mail message.--The term `electronic mail
message' means a message as transmitted to an electronic mail
address.
``(3) 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.
``(4) Protected Computer.--The term `protected computer'
means a computer described in section 1030(e)(2)(B).
``(5) State.--The term `State' includes the District of
Columbia, Puerto Rico, and any other territory or possession of
the United States.
``Sec. 622. Falsifying sender's identity in commercial electronic mail
``(a) In General.--Whoever intentionally sends to one or more
covered computers, during any 30-day period, 10 or more commercial
electronic mail messages that the sender knows falsify the sender's
identity shall be punished as provided in section 624.
``(b) Methods of Falsifying Identity.--For the purposes of
subsection (a), an identity may be falsified by any means, and the
following conduct shall be considered to be a falsification of
identity:
``(1) By accompanying the message with header information
that is false as to the identity of the sender (including
header information that uses a third party's domain name
without the third party's permission) or as to the routing of
the message.
``(2) By accessing a covered computer or computer network
without authorization or exceeding authorized access and, by
means of such conduct, sending, from or through that computer
or network, the message that falsifies the identity of the
sender.
``(3) Registering, using information that falsifies the
identity of the registrant, for multiple electronic mail
accounts or domain names, and sending the message from those
accounts, or from or advertising those domain names, but
failing to include in a conspicuous form in the message the
identity and current contact information of the sender.
``Sec. 623. Failure to place warning labels on commercial electronic
mail containing sexually oriented materials
``(a) In General.--Whoever knowingly sends a commercial electronic
mail message that includes sexually oriented material to a covered
computer and knowingly--
``(1) fails to include in subject heading for the
electronic mail message the marks or notices prescribed by the
Federal Trade Commission under section 101(f)(2) of the Anti-
Spam Act of 2003, or
``(2) fails to provide that the matter in that message that
is initially viewable to the recipient, when that message is
opened by any recipient and absent any further actions by the
recipient, includes only--
``(A) to the extent required or authorized pursuant
to such section 101(f)(2), any such marks or notices,
``(B) the information required to be included in
the message pursuant to subparagraphs (B) and (C) of
section 101(a)(1) of the Anti-Spam Act of 2003, and
(C) instructions on how to access, or a mechanism
to access, the sexually oriented material,
shall be punished as provided in section 624 of this chapter.
``(b) Definition.--In this section, the term `sexually oriented
material' means any material that depicts sexually explicit conduct (as
that term is defined in section 2256), unless the depiction constitutes
a small and insignificant part of the whole, the remainder of which is
not primarily devoted to sexual matters.
``Sec. 624. Criminal penalties for violation of certain sections
``(a) Punishment.--The punishment for an offense under section 622
or 623 is--
``(1) for an offense--
``(A) occurring after the defendant was convicted
for another offense under this chapter; or
``(B) involving 10,000 or more electronic mail
messages sent within a 30-day period;
a fine under this title or imprisonment for not more than 2
years, or both; and
``(2) in any other case, a fine under this title or
imprisonment for not more than one year, or both.
``(b) Factors To Be Considered by Sentencing Commission.--In
establishing sentencing guidelines for offenses to which this section
applies, the United States Sentencing Commission shall consider the
following factors:
``(1) The volume of commercial electronic mail involved in
the violation.
``(2) The manner in which the violation was perpetrated.
``(3) Whether the violation involved a violation of any
other Federal law.
``(4) The extent of economic gain resulting from the
violation.
``(5) Any history of prior violations by the violator.
``(6) Such other factors as justice may require.
``Sec. 625. Illicit harvesting of electronic mail addresses
``Whoever knowingly and through the direct or indirect use of a
covered computer uses an automated means to obtain electronic mail
addresses from an Internet website or proprietary online service
operated by another person, without the authorization of that person
and uses those addresses in another violation of this chapter, shall be
fined under this title or imprisoned not more than one year, or both.
``Sec. 626. Civil enforcement
``(a) Civil Action by Providers.--A provider of Internet access
service (as defined in section 231(e) of the Communications Act of 1934
(47 U.S.C. 231(e)(4)) who is adversely affected by a violation of this
chapter may, in a civil action, recover any appropriate relief,
including actual damages or, at the election of the plaintiff,
statutory damages of $500 for each electronic mail message involved in
the violation.
``(b) Additional Enforcement Tools for the Department of Justice.--
``(1) Civil penalty.--The Attorney General may, in a civil
action against any person for a violation of this chapter,
recover a civil penalty of not to exceed $500 for each
electronic mail message involved in the violation.
``(2) Intervention.--The Justice Department may also
intervene in any civil action brought under subsection (a) or
subsection (d).
``(c) Remedies Under the Federal Trade Commission Act.--The same
powers and authorities by which the Federal Trade Commission and the
Attorney General enforce compliance, by persons subject to the
jurisdiction of the Commission under the Federal Trade Commission Act,
with the provisions of such Act and the regulations issued thereunder
by the Commission, shall be available to the Commission and the
Attorney General, respectively, for use against all persons who violate
this chapter with respect to such violations.
``(d) State Attorneys General.--Unless the Attorney General or the
Federal Trade Commission has commenced a criminal prosecution or civil
proceedings under subsection (b) or (c) with respect to the same
conduct, the chief law enforcement officer of a State may, in a civil
action, obtain appropriate relief for a violation of this chapter,
including statutory damages of $500 for each electronic mail message
sent to a covered computer in that State involved in that violation.
``(e) Exclusiveness of Remedies.--The civil remedies of this
section are the exclusive civil remedies for violations of this
chapter.
``(f) Exclusive Original Jurisdiction in Federal Courts.--The
United States district courts shall have exclusive original
jurisdiction over any civil action commenced under this section.''.
(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''.
(c) Effective Date.--The amendments made by this title shall take
effect 120 days after the date of the enactment of this title.
TITLE III--GENERAL PROVISIONS
SEC. 301. REGULATIONS AND REPORT.
(a) Regulations.--
(1) In general.--Not later than 12 months after the date of
the enactment of this Act, the Commission shall issue any
regulations necessary to implement sections 101, 105, and 304.
In issuing any such regulations, the Commission shall consult
with the Federal Communications Commission. Any such
regulations shall be issued in accordance with section 553 of
title 5, United States Code.
(2) Limitation.--Paragraph (1) may not be construed to
authorize the Commission to establish a requirement pursuant to
section 101(a)(1)(A) to include any specific words, characters,
marks, or labels in a commercial electronic mail message, or to
include the identification required by section 101(a)(1)(A) in
any particular part of such a mail message (such as the subject
line or body).
(b) Report Regarding Preventing Unsolicited Commercial Electronic
Mail Messages.--Within 240 days after the date of the enactment of this
Act, the Commission, after consultation with the Federal Communications
Commission, shall submit a report to the Congress regarding the need to
protect the rights of users of electronic mail to avoid receiving
unsolicited commercial electronic mail. The report shall--
(1) analyze the effectiveness and efficiency, for
preventing unsolicited commercial electronic mail messages, of
requiring that each such message include specific words,
characters, marks, or labels to identify the message as such a
message;
(2) compare and evaluate alternative methods and procedures
(individually or in combination with each other and the method
described in paragraph (1)) for their effectiveness in
protecting such rights and in terms of their cost and other
advantages and disadvantages, including the extent to which
such methods and procedures can facilitate screening and
removal of unsolicited commercial electronic mail message;
(3) compare and evaluate--
(A) alternative methods for persons aggrieved by
receipt of unsolicited commercial electronic mail
messages to report such receipt and submit such
messages to the Commission; and
(B) alternative means of notifying the public of
the availability of such methods;
(4) evaluate whether there is a need--
(A) for additional Commission authority to further
expand or restrict the electronic mail messages which
are commercial, for purposes of this Act; or
(B) to further expand or restrict the prohibitions,
limitations, definitions, or exceptions of this Act;
and
(5) propose legislation to effectuate such specific
expansions or restrictions, if a need for any expansions or
restrictions is determined pursuant to paragraph (4).
SEC. 302. EFFECT ON OTHER LAWS.
(a) Federal Law.--
(1) Obscenity and exploitation of children.--Nothing in
this Act may 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) Communications act of 1934.--Nothing in this Act may be
construed to affect the applicability of any provision of title
II of the Communications Act of 1934.
(b) State Law.--This Act preempts any law of a State, or of a
political subdivision of a State, that expressly regulates the form of,
required inclusions in, the manner or timing of sending, or the form,
manner, or effect of recipient requests regarding receipt of,
commercial electronic mail, but such laws preempted shall not include
any law regulating falsification in commercial electronic mail of the
identity of the sender, of authentication information relating to the
sender, of header or routing information relating to such mail, or of
subject line information.
(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, receive, or store certain types of electronic mail messages.
SEC. 303. STUDY OF EFFECTIVENESS AND ENFORCEMENT.
(a) In General.--Not later than 24 months after the date of the
enactment of this Act, the Commission, after consultation with the
Federal Communications Commission, shall submit a report to the
Congress that provides a detailed analysis of the effectiveness and
enforcement of the provisions, definitions, and exceptions of this Act
and the need (if any) for the Congress to modify such provisions,
definitions, and exceptions.
(b) Required Analysis.--The report required by subsection (a) shall
include 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.
SEC. 304. DEFINITIONS.
For purposes of this Act:
(1) Affiliate.--The term ``affiliate'' means, with respect
to an entity, any other entity that--
(A) controls, is controlled by, or is under common
control with such entity; and
(B) provides marketing information to, receives
marketing information from, or shares marketing
information with such entity.
(2) Business day.--The term ``business day'' means any day
other than a Saturday, Sunday, or legal public holiday.
(3) Commercial electronic mail message.--
(A) In general.--Except as provided in subparagraph
(B), the term ``commercial electronic mail message''
means any electronic mail message that contains a
commercial advertisement or promotion of a product or
service, except that such term does not include any
commercial transactional electronic mail message.
(B) Reference to company.--The inclusion of a
reference to a commercial entity in an electronic mail
message does not, by itself, constitute a commercial
advertisement or promotion of a product or service.
(4) Commercial transactional electronic mail message.--The
term ``commercial transactional electronic mail message'' means
any electronic mail message the primary purpose of which is--
(A) to facilitate, complete, or confirm a specific
commercial transaction, made with or without exchange
of consideration, between the sender and the recipient
that the recipient has previously agreed to enter into
with the sender; or
(B) to provide--
(i) a billing statement or information;
(ii) debt collection information;
(iii) product recall information;
(iv) warranty information;
(v) safety or security information;
(vi) an actual update or modification to a
product or service; or
(vii) information requested by the
recipient,
relating to such specific commercial transaction or the
product or service involved in the transaction.
(5) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(6) Covered affiliate.--The term ``covered affiliate''
means, with respect to a commercial electronic mail message,
any affiliate of the sender of such message to which such
sender has previously sold, leased, exchanged, or otherwise
transferred or released the electronic mail address of the
recipient.
(7) Covered computer.--The term ``covered computer'' means
a computer that is used in or affects interstate or foreign
commerce or communication, including a computer located outside
the United States that is used in a manner that affects
interstate or foreign commerce of the United States.
(8) 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.
(9) Electronic mail address.--
(A) In general.--The term ``electronic mail
address'' means a destination (commonly expressed as a
string of characters) to which electronic mail can be
sent or delivered.
(B) Inclusion.--In the case of the Internet, such
term may include an electronic 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'').
(10) Electronic mail message.--The term ``electronic mail
message'' means a message as transmitted to an electronic mail
address.
(11) 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.
(12) Initiate.--The term ``initiate'', when used with
respect to an electronic mail message, means to originate such
message or to procure the origination of such message.
(13) Initiator.--The term ``initiator'', when used with
respect to an electronic mail message, means the person who
initiates such message. Such term does not include a provider
of an Internet access service, or any other person, whose role
with respect to the message is limited to the transmission,
routing, relaying, handling, or storing, through an automatic
technical process, of a message originated by others.
(14) Internet.--The term ``Internet'' has the meaning given
that term in section 231(e)(3) of the Communications Act of
1934 (47 U.S.C. 231(e)(3)).
(15) 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)).
(16) Recipient.--The term ``recipient'', when used with
respect to an electronic mail message, means the addressee of
such message. If an addressee of an electronic mail message has
one or more electronic mail addresses in addition to the
address to which the message was addressed, the addressee shall
be treated as a separate recipient with respect to each such
address.
(17) Sender.--The term ``sender'', when used with respect
to an electronic mail message, means--
(A) the person--
(i) who is the initiator of such message;
and
(ii) whose product, service, or Internet
web site is advertised or promoted by the
message;
(B) such person's successor in interest; or
(C) any entity created by or on behalf of such
person with the intent of avoiding the requirements or
prohibitions in section 101.
SEC. 305. EFFECTIVE DATE.
(a) In General.--Titles I and III of this Act, and the amendments
made by such titles, shall take effect 120 days after the date of the
enactment of this Act.
(b) Effect of Regulatory Authority.--The authority in this Act or
the amendments made by this Act to issue regulations may not be
construed to affect the effectiveness of any provision of this Act or
the amendments made by this Act under subsection (a) of this section or
section 201(c), except to the extent that a determination of the
Commission is specifically required by such provision.
<all>
Introduced in House
Introduced in House
Referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Crime, Terrorism, and Homeland Security.
Referred to the Subcommittee on Commerce, Trade and Consumer Protection.
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