One Hundred Eighth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on
Tuesday,
the seventh day of January, two thousand and
three
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
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.
(1) AFFIRMATIVE CONSENT- The term `affirmative
consent', when used with respect to a commercial electronic
mail message, means that--
(A) the recipient expressly consented to
receive the message, either in response to a clear and conspicuous
request for such consent or at the recipient's own initiative;
and
(B) if the message is from a party other
than the party to which the recipient communicated such consent,
the recipient was given clear and conspicuous notice at the
time the consent was communicated that the recipient's electronic
mail address could be transferred to such other party for
the purpose of initiating commercial electronic mail messages.
(2) Commercial electronic mail message-
(A) IN GENERAL- The term `commercial electronic
mail message' means any electronic mail message the primary
purpose of which is the commercial advertisement or promotion
of a commercial product or service (including content on
an Internet website operated for a commercial purpose).
(B) TRANSACTIONAL OR RELATIONSHIP MESSAGES-
The term `commercial electronic mail message' does not include
a transactional or relationship message.
(C) REGULATIONS REGARDING PRIMARY PURPOSE-
Not later than 12 months after the date of the enactment
of this Act, the Commission shall issue regulations pursuant
to section 13 defining the relevant criteria to facilitate
the determination of the primary purpose of an electronic
mail message.
(D) REFERENCE TO COMPANY OR WEBSITE- The
inclusion of a reference to a commercial entity or a link
to the website of a commercial entity in an electronic mail
message does not, by itself, cause such message to be treated
as a commercial electronic mail message for purposes of this
Act if the contents or circumstances of the message indicate
a primary purpose other than commercial advertisement or
promotion of a commercial product or service.
(3) COMMISSION- The term `Commission' means
the Federal Trade Commission.
(4) DOMAIN NAME- The term `domain name' means
any alphanumeric designation which is registered with or assigned
by any domain name registrar, domain name registry, or other
domain name registration authority as part of an electronic
address on the Internet.
(5) ELECTRONIC MAIL ADDRESS- The term `electronic
mail address' means a destination, commonly expressed as a
string of characters, consisting of a unique user name or mailbox
(commonly referred to as the `local part') and a reference
to an Internet domain (commonly referred to as the `domain
part'), whether or not displayed, to which an electronic mail
message can be sent or delivered.
(6) ELECTRONIC MAIL MESSAGE- The term `electronic
mail message' means a message sent to a unique electronic mail
address.
(7) FTC ACT- The term `FTC Act' means the
Federal Trade Commission Act (15 U.S.C. 41 et seq.).
(8) HEADER INFORMATION- The term `header information'
means the source, destination, and routing information attached
to an electronic mail message, including the originating domain
name and originating electronic mail address, and any other
information that appears in the line identifying, or purporting
to identify, a person initiating the message.
(9) INITIATE- The term `initiate', when used
with respect to a commercial electronic mail message, means
to originate or transmit such message or to procure the origination
or transmission of such message, but shall not include actions
that constitute routine conveyance of such message. For purposes
of this paragraph, more than one person may be considered to
have initiated a message.
(10) INTERNET- The term `Internet' has the
meaning given that term in the Internet Tax Freedom Act (47
U.S.C. 151 nt).
(11) INTERNET ACCESS SERVICE- The term `Internet
access service' has the meaning given that term in section
231(e)(4) of the Communications Act of 1934 (47 U.S.C. 231(e)(4)).
(12) PROCURE- The term `procure', when used
with respect to the initiation of a commercial electronic mail
message, means intentionally to pay or provide other consideration
to, or induce, another person to initiate such a message on
one's behalf.
(13) PROTECTED COMPUTER- The term `protected
computer' has the meaning given that term in section 1030(e)(2)(B)
of title 18, United States Code.
(14) RECIPIENT- The term `recipient', when
used with respect to a commercial electronic mail message,
means an authorized user of the electronic mail address to
which the message was sent or delivered. If a recipient of
a commercial electronic mail message has one or more electronic
mail addresses in addition to the address to which the message
was sent or delivered, the recipient shall be treated as a
separate recipient with respect to each such address. If an
electronic mail address is reassigned to a new user, the new
user shall not be treated as a recipient of any commercial
electronic mail message sent or delivered to that address before
it was reassigned.
(15) ROUTINE CONVEYANCE- The term `routine
conveyance' means the transmission, routing, relaying, handling,
or storing, through an automatic technical process, of an electronic
mail message for which another person has identified the recipients
or provided the recipient addresses.
(A) IN GENERAL- Except as provided in subparagraph
(B), the term `sender', when used with respect to a commercial
electronic mail message, means a person who initiates such
a message and whose product, service, or Internet web site
is advertised or promoted by the message.
(B) SEPARATE LINES OF BUSINESS OR DIVISIONS-
If an entity operates through separate lines of business
or divisions and holds itself out to the recipient throughout
the message as that particular line of business or division
rather than as the entity of which such line of business
or division is a part, then the line of business or the division
shall be treated as the sender of such message for purposes
of this Act.
(17) Transactional or relationship message-
(A) IN GENERAL- The term `transactional
or relationship message' means an electronic mail message
the primary purpose of which is--
(i) to facilitate, complete, or confirm
a commercial transaction that the recipient has previously
agreed to enter into with the sender;
(ii) to provide warranty information,
product recall information, or safety or security information
with respect to a commercial product or service used or
purchased by the recipient;
(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.
(1) IN GENERAL- Chapter 47 of title 18, United
States Code, is amended by adding at the end the following
new section:
`Sec. 1037. Fraud and related activity in connection
with electronic mail
`(a) IN GENERAL- Whoever, in or affecting interstate
or foreign commerce, knowingly--
`(1) accesses a protected computer without
authorization, and intentionally initiates the transmission
of multiple commercial electronic mail messages from or through
such computer,
`(2) uses a protected computer to relay or
retransmit multiple commercial electronic mail messages, with
the intent to deceive or mislead recipients, or any Internet
access service, as to the origin of such messages,
`(3) materially falsifies header information
in multiple commercial electronic mail messages and intentionally
initiates the transmission of such messages,
`(4) registers, using information that materially
falsifies the identity of the actual registrant, for five or
more electronic mail accounts or online user accounts or two
or more domain names, and intentionally initiates the transmission
of multiple commercial electronic mail messages from any combination
of such accounts or domain names, or
`(5) falsely represents oneself to be the
registrant or the legitimate successor in interest to the registrant
of 5 or more Internet Protocol addresses, and intentionally
initiates the transmission of multiple commercial electronic
mail messages from such addresses,
or conspires to do so, shall be punished as provided
in subsection (b).
`(b) PENALTIES- The punishment for an offense
under subsection (a) is--
`(1) a fine under this title, imprisonment
for not more than 5 years, or both, if--
`(A) the offense is committed in furtherance
of any felony under the laws of the United States or of any
State; or
`(B) the defendant has previously been convicted
under this section or section 1030, or under the law of any
State for conduct involving the transmission of multiple
commercial electronic mail messages or unauthorized access
to a computer system;
`(2) a fine under this title, imprisonment
for not more than 3 years, or both, if--
`(A) the offense is an offense under subsection
(a)(1);
`(B) the offense is an offense under subsection
(a)(4) and involved 20 or more falsified electronic mail
or online user account registrations, or 10 or more falsified
domain name registrations;
`(C) the volume of electronic mail messages
transmitted in furtherance of the offense exceeded 2,500
during any 24-hour period, 25,000 during any 30-day period,
or 250,000 during any 1-year period;
`(D) the offense caused loss to one or more
persons aggregating $5,000 or more in value during any 1-year
period;
`(E) as a result of the offense any individual
committing the offense obtained anything of value aggregating
$5,000 or more during any 1-year period; or
`(F) the offense was undertaken by the defendant
in concert with 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.
`(1) IN GENERAL- The court, in imposing sentence
on a person who is convicted of an offense under this section,
shall order that the defendant forfeit to the United States--
`(A) any property, real or personal, constituting
or traceable to gross proceeds obtained from such offense;
and
`(B) any equipment, software, or other technology
used or intended to be used to commit or to facilitate the
commission of such offense.
`(2) PROCEDURES- The procedures set forth
in section 413 of the Controlled Substances Act (21 U.S.C.
853), other than subsection (d) of that section, and in Rule
32.2 of the Federal Rules of Criminal Procedure, shall apply
to all stages of a criminal forfeiture proceeding under this
section.
`(d) DEFINITIONS- In this section:
`(1) LOSS- The term `loss' has the meaning
given that term in section 1030(e) of this title.
`(2) MATERIALLY- For purposes of paragraphs
(3) and (4) of subsection (a), header information or registration
information is materially falsified if it is altered or concealed
in a manner that would impair the ability of a recipient of
the message, an Internet access service processing the message
on behalf of a recipient, a person alleging a violation of
this section, or a law enforcement agency to identify, locate,
or respond to a person who initiated the electronic mail message
or to investigate the alleged violation.
`(3) MULTIPLE- The term `multiple' means more
than 100 electronic mail messages during a 24-hour period,
more than 1,000 electronic mail messages during a 30-day period,
or more than 10,000 electronic mail messages during a 1-year
period.
`(4) OTHER TERMS- Any other term has the meaning
given that term by section 3 of the CAN-SPAM Act of 2003.'.
(2) CONFORMING AMENDMENT- The chapter analysis
for chapter 47 of title 18, United States Code, is amended
by adding at the end the following:
`Sec.
`1037. Fraud and related activity in connection
with electronic mail.'.
(b) UNITED STATES SENTENCING COMMISSION-
(1) DIRECTIVE- Pursuant to its authority under
section 994(p) of title 28, United States Code, and in accordance
with this section, the United States Sentencing Commission
shall review and, as appropriate, amend the sentencing guidelines
and policy statements to provide appropriate penalties for
violations of section 1037 of title 18, United States Code,
as added by this section, and other offenses that may be facilitated
by the sending of large quantities of unsolicited electronic
mail.
(2) REQUIREMENTS- In carrying out this subsection,
the Sentencing Commission shall consider providing sentencing
enhancements for--
(A) those convicted under section 1037 of
title 18, United States Code, who--
(i) obtained electronic mail addresses
through improper means, including--
(I) harvesting electronic mail addresses
of the users of a website, proprietary service, or other
online public forum operated by another person, without
the authorization of such person; and
(II) randomly generating electronic
mail addresses by computer; or
(ii) knew that the commercial electronic
mail messages involved in the offense contained or advertised
an Internet domain for which the registrant of the domain
had provided false registration information; and
(B) those convicted of other offenses, including
offenses involving fraud, identity theft, obscenity, child
pornography, and the sexual exploitation of children, if
such offenses involved the sending of large quantities of
electronic mail.
(c) SENSE OF CONGRESS- It is the sense of Congress
that--
(1) Spam has become the method of choice for
those who distribute pornography, perpetrate fraudulent schemes,
and introduce viruses, worms, and Trojan horses into personal
and business computer systems; and
(2) the Department of Justice should use all
existing law enforcement tools to investigate and prosecute
those who send bulk commercial e-mail to facilitate the commission
of Federal crimes, including the tools contained in chapters
47 and 63 of title 18, United States Code (relating to fraud
and false statements); chapter 71 of title 18, United States
Code (relating to obscenity); chapter 110 of title 18, United
States Code (relating to the sexual exploitation of children);
and chapter 95 of title 18, United States Code (relating to
racketeering), as appropriate.
SEC. 5. OTHER PROTECTIONS FOR USERS OF COMMERCIAL
ELECTRONIC MAIL.
(a) REQUIREMENTS FOR TRANSMISSION OF MESSAGES-
(1) PROHIBITION OF FALSE OR MISLEADING TRANSMISSION
INFORMATION- It is unlawful for any person to initiate the
transmission, to a protected computer, of a commercial electronic
mail message, or a transactional or relationship message, that
contains, or is accompanied by, header information that is
materially false or materially misleading. For purposes of
this paragraph--
(A) header information that is technically
accurate but includes an originating electronic mail address,
domain name, or Internet Protocol address the access to which
for purposes of initiating the message was obtained by means
of false or fraudulent pretenses or representations shall
be considered materially misleading;
(B) a `from' line (the line identifying
or purporting to identify a person initiating the message)
that accurately identifies any person who initiated the message
shall not be considered materially false or materially misleading;
and
(C) header information shall be considered
materially misleading if it fails to identify accurately
a protected computer used to initiate the message because
the person initiating the message knowingly uses another
protected computer to relay or retransmit the message for
purposes of disguising its origin.
(2) PROHIBITION OF DECEPTIVE SUBJECT HEADINGS-
It is unlawful for any person to initiate the transmission
to a protected computer of a commercial electronic mail message
if such person has actual knowledge, or knowledge fairly implied
on the basis of objective circumstances, that a subject heading
of the message would be likely to mislead a recipient, acting
reasonably under the circumstances, about a material fact regarding
the contents or subject matter of the message (consistent with
the criteria used in enforcement of section 5 of the Federal
Trade Commission Act (15 U.S.C. 45)).
(3) Inclusion of return address or comparable
mechanism in commercial electronic mail-
(A) IN GENERAL- It is unlawful for any person
to initiate the transmission to a protected computer of a
commercial electronic mail message that does not contain
a functioning return electronic mail address or other Internet-based
mechanism, clearly and conspicuously displayed, that--
(i) a recipient may use to submit, in
a manner specified in the message, a reply electronic mail
message or other form of Internet-based communication requesting
not to receive future commercial electronic mail messages
from that sender at the electronic mail address where the
message was received; and
(ii) remains capable of receiving such
messages or communications for no less than 30 days after
the transmission of the original message.
(B) MORE DETAILED OPTIONS POSSIBLE- The
person initiating a commercial electronic mail message may
comply with subparagraph (A)(i) by providing the recipient
a list or menu from which the recipient may choose the specific
types of commercial electronic mail messages the recipient
wants to receive or does not want to receive from the sender,
if the list or menu includes an option under which the recipient
may choose not to receive any commercial electronic mail
messages from the sender.
(C) TEMPORARY INABILITY TO RECEIVE MESSAGES
OR PROCESS REQUESTS- A return electronic mail address or
other mechanism does not fail to satisfy the requirements
of subparagraph (A) if it is unexpectedly and temporarily
unable to receive messages or process requests due to a technical
problem beyond the control of the sender if the problem is
corrected within a reasonable time period.
(4) PROHIBITION OF TRANSMISSION OF COMMERCIAL
ELECTRONIC MAIL AFTER OBJECTION-
(A) IN GENERAL- If a recipient makes a request
using a mechanism provided pursuant to paragraph (3) not
to receive some or any commercial electronic mail messages
from such sender, then it is unlawful--
(i) for the sender to initiate the transmission
to the recipient, more than 10 business days after the
receipt of such request, of a commercial electronic mail
message that falls within the scope of the request;
(ii) for any person acting on behalf of
the sender to initiate the transmission to the recipient,
more than 10 business days after the receipt of such request,
of a commercial electronic mail message with actual knowledge,
or knowledge fairly implied on the basis of objective circumstances,
that such message falls within the scope of the request;
(iii) for any person acting on behalf
of the sender to assist in initiating the transmission
to the recipient, through the provision or selection of
addresses to which the message will be sent, of a commercial
electronic mail message with actual knowledge, or knowledge
fairly implied on the basis of objective circumstances,
that such message would violate clause (i) or (ii); or
(iv) for the sender, or any other person
who knows that the recipient has made such a request, to
sell, lease, exchange, or otherwise transfer or release
the electronic mail address of the recipient (including
through any transaction or other transfer involving mailing
lists bearing the electronic mail address of the recipient)
for any purpose other than compliance with this Act or
other provision of law.
(B) SUBSEQUENT AFFIRMATIVE CONSENT- A prohibition
in subparagraph (A) does not apply if there is affirmative
consent by the recipient subsequent to the request under
subparagraph (A).
(5) INCLUSION OF IDENTIFIER, OPT-OUT, AND
PHYSICAL ADDRESS IN COMMERCIAL ELECTRONIC MAIL- (A) It is unlawful
for any person to initiate the transmission of any commercial
electronic mail message to a protected computer unless the
message provides--
(i) clear and conspicuous identification
that the message is an advertisement or solicitation;
(ii) clear and conspicuous notice of the
opportunity under paragraph (3) to decline to receive further
commercial electronic mail messages from the sender; and
(iii) a valid physical postal address of
the sender.
(B) Subparagraph (A)(i) does not apply to
the transmission of a commercial electronic mail message if
the recipient has given prior affirmative consent to receipt
of the message.
(6) MATERIALLY- For purposes of paragraph
(1), the term `materially', when used with respect to false
or misleading header information, includes the alteration or
concealment of header information in a manner that would impair
the ability of an Internet access service processing the message
on behalf of a recipient, a person alleging a violation of
this section, or a law enforcement agency to identify, locate,
or respond to a person who initiated the electronic mail message
or to investigate the alleged violation, or the ability of
a recipient of the message to respond to a person who initiated
the electronic message.
(b) Aggravated Violations Relating to Commercial
Electronic Mail-
(1) Address harvesting and dictionary attacks-
(A) IN GENERAL- It is unlawful for any person
to initiate the transmission, to a protected computer, of
a commercial electronic mail message that is unlawful under
subsection (a), or to assist in the origination of such message
through the provision or selection of addresses to which
the message will be transmitted, if such person had actual
knowledge, or knowledge fairly implied on the basis of objective
circumstances, that--
(i) the electronic mail address of the
recipient was obtained using an automated means from an
Internet website or proprietary online service operated
by another person, and such website or online service included,
at the time the address was obtained, a notice stating
that the operator of such website or online service will
not give, sell, or otherwise transfer addresses maintained
by such website or online service to any other party for
the purposes of initiating, or enabling others to initiate,
electronic mail messages; or
(ii) the electronic mail address of the
recipient was obtained using an automated means that generates
possible electronic mail addresses by combining names,
letters, or numbers into numerous permutations.
(B) DISCLAIMER- Nothing in this paragraph
creates an ownership or proprietary interest in such electronic
mail addresses.
(2) AUTOMATED CREATION OF MULTIPLE ELECTRONIC
MAIL ACCOUNTS- It is unlawful for any person to use scripts
or other automated means to register for multiple electronic
mail accounts or online user accounts from which to transmit
to a protected computer, or enable another person to transmit
to a protected computer, a commercial electronic mail message
that is unlawful under subsection (a).
(3) RELAY OR RETRANSMISSION THROUGH UNAUTHORIZED
ACCESS- It is unlawful for any person knowingly to relay or
retransmit a commercial electronic mail message that is unlawful
under subsection (a) from a protected computer or computer
network that such person has accessed without authorization.
(c) SUPPLEMENTARY RULEMAKING AUTHORITY- The
Commission shall by regulation, pursuant to section 13--
(1) modify the 10-business-day period under
subsection (a)(4)(A) or subsection (a)(4)(B), or both, if the
Commission determines that a different period would be more
reasonable after taking into account--
(A) the purposes of subsection (a);
(B) the interests of recipients of commercial
electronic mail; and
(C) the burdens imposed on senders of lawful
commercial electronic mail; and
(2) specify additional activities or practices
to which subsection (b) applies if the Commission determines
that those activities or practices are contributing substantially
to the proliferation of commercial electronic mail messages
that are unlawful under subsection (a).
(d) REQUIREMENT TO PLACE WARNING LABELS ON COMMERCIAL
ELECTRONIC MAIL CONTAINING SEXUALLY ORIENTED MATERIAL-
(1) IN GENERAL- No person may initiate in
or affecting interstate commerce the transmission, to a protected
computer, of any commercial electronic mail message that includes
sexually oriented material and--
(A) fail to include in subject heading for
the electronic mail message the marks or notices prescribed
by the Commission under this subsection; or
(B) fail to provide that the matter in the
message that is initially viewable to the recipient, when
the message is opened by any recipient and absent any further
actions by the recipient, includes only--
(i) to the extent required or authorized
pursuant to paragraph (2), any such marks or notices;
(ii) the information required to be included
in the message pursuant to subsection (a)(5); and
(iii) instructions on how to access, or
a mechanism to access, the sexually oriented material.
(2) PRIOR AFFIRMATIVE CONSENT- Paragraph (1)
does not apply to the transmission of an electronic mail message
if the recipient has given prior affirmative consent to receipt
of the message.
(3) PRESCRIPTION OF MARKS AND NOTICES- Not
later than 120 days after the date of the enactment of this
Act, the Commission in consultation with the Attorney General
shall prescribe clearly identifiable marks or notices to be
included in or associated with commercial electronic mail that
contains sexually oriented material, in order to inform the
recipient of that fact and to facilitate filtering of such
electronic mail. The Commission shall publish in the Federal
Register and provide notice to the public of the marks or notices
prescribed under this paragraph.
(4) DEFINITION- In this subsection, the term
`sexually oriented material' means any material that depicts
sexually explicit conduct (as that term is defined in section
2256 of title 18, United States Code), unless the depiction
constitutes a small and insignificant part of the whole, the
remainder of which is not primarily devoted to sexual matters.
(5) PENALTY- Whoever knowingly violates paragraph
(1) shall be fined under title 18, United States Code, or imprisoned
not more than 5 years, or both.
SEC. 6. BUSINESSES KNOWINGLY PROMOTED BY ELECTRONIC
MAIL WITH FALSE OR MISLEADING TRANSMISSION INFORMATION.
(a) IN GENERAL- It is unlawful for a person
to promote, or allow the promotion of, that person's trade or
business, or goods, products, property, or services sold, offered
for sale, leased or offered for lease, or otherwise made available
through that trade or business, in a commercial electronic mail
message the transmission of which is in violation of section
5(a)(1) if that person--
(1) knows, or should have known in the ordinary
course of that person's trade or business, that the goods,
products, property, or services sold, offered for sale, leased
or offered for lease, or otherwise made available through that
trade or business were being promoted in such a message;
(2) received or expected to receive an economic
benefit from such promotion; and
(3) took no reasonable action--
(A) to prevent the transmission; or
(B) to detect the transmission and report
it to the Commission.
(b) Limited Enforcement Against Third Parties-
(1) IN GENERAL- Except as provided in paragraph
(2), a person (hereinafter referred to as the `third party')
that provides goods, products, property, or services to another
person that violates subsection (a) shall not be held liable
for such violation.
(2) EXCEPTION- Liability for a violation of
subsection (a) shall be imputed to a third party that provides
goods, products, property, or services to another person that
violates subsection (a) if that third party--
(A) owns, or has a greater than 50 percent
ownership or economic interest in, the trade or business
of the person that violated subsection (a); or
(B)(i) has actual knowledge that goods,
products, property, or services are promoted in a commercial
electronic mail message the transmission of which is in violation
of section 5(a)(1); and
(ii) receives, or expects to receive, an
economic benefit from such promotion.
(c) EXCLUSIVE ENFORCEMENT BY FTC- Subsections
(f) and (g) of section 7 do not apply to violations of this section.
(d) SAVINGS PROVISION- Except as provided in
section 7(f)(8), nothing in this section may be construed to
limit or prevent any action that may be taken under this Act
with respect to any violation of any other section of this Act.
SEC. 7. ENFORCEMENT GENERALLY.
(a) VIOLATION IS UNFAIR OR DECEPTIVE ACT OR
PRACTICE- Except as provided in subsection (b), this Act shall
be enforced by the Commission as if the violation of this Act
were an unfair or deceptive act or practice proscribed under
section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C.
57a(a)(1)(B)).
(b) ENFORCEMENT BY CERTAIN OTHER AGENCIES- Compliance
with this Act shall be enforced--
(1) under section 8 of the Federal Deposit
Insurance Act (12 U.S.C. 1818), in the case of--
(A) national banks, and Federal branches
and Federal agencies of foreign banks, by the Office of the
Comptroller of the Currency;
(B) member banks of the Federal Reserve
System (other than national banks), branches and agencies
of foreign banks (other than Federal branches, Federal agencies,
and insured State branches of foreign banks), commercial
lending companies owned or controlled by foreign banks, organizations
operating under section 25 or 25A of the Federal Reserve
Act (12 U.S.C. 601 and 611), and bank holding companies,
by the Board;
(C) banks insured by the Federal Deposit
Insurance Corporation (other than members of the Federal
Reserve System) 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;
(6) under State insurance law in the case
of any person engaged in providing insurance, by the applicable
State insurance authority of the State in which the person
is domiciled, subject to section 104 of the Gramm-Bliley-Leach
Act (15 U.S.C. 6701), except that in any State in which the
State insurance authority elects not to exercise this power,
the enforcement authority pursuant to this Act shall be exercised
by the Commission in accordance with subsection (a);
(7) under part A of subtitle VII of title
49, United States Code, by the Secretary of Transportation
with respect to any air carrier or foreign air carrier subject
to that part;
(8) under the Packers and Stockyards Act,
1921 (7 U.S.C. 181 et seq.) (except as provided in section
406 of that Act (7 U.S.C. 226, 227)), by the Secretary of Agriculture
with respect to any activities subject to that Act;
(9) under the Farm Credit Act of 1971 (12
U.S.C. 2001 et seq.) by the Farm Credit Administration with
respect to any Federal land bank, Federal land bank association,
Federal intermediate credit bank, or production credit association;
and
(10) under the Communications Act of 1934
(47 U.S.C. 151 et seq.) by the Federal Communications Commission
with respect to any person subject to the provisions of that
Act.
(c) EXERCISE OF CERTAIN POWERS- For the purpose
of the exercise by any agency referred to in subsection (b) of
its powers under any Act referred to in that subsection, a violation
of this Act is deemed to be a violation of a Federal Trade Commission
trade regulation rule. In addition to its powers under any provision
of law specifically referred to in subsection (b), each of the
agencies referred to in that subsection may exercise, for the
purpose of enforcing compliance with any requirement imposed
under this Act, any other authority conferred on it by law.
(d) ACTIONS BY THE COMMISSION- The Commission
shall prevent any person from violating this Act in the same
manner, by the same means, and with the same jurisdiction, powers,
and duties as though all applicable terms and provisions of the
Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated
into and made a part of this Act. Any entity that violates any
provision of that subtitle is subject to the penalties and entitled
to the privileges and immunities provided in the Federal Trade
Commission Act in the same manner, by the same means, and with
the same jurisdiction, power, and duties as though all applicable
terms and provisions of the Federal Trade Commission Act were
incorporated into and made a part of that subtitle.
(e) AVAILABILITY OF CEASE-AND-DESIST ORDERS
AND INJUNCTIVE RELIEF WITHOUT SHOWING OF KNOWLEDGE- Notwithstanding
any other provision of this Act, in any proceeding or action
pursuant to subsection (a), (b), (c), or (d) of this section
to enforce compliance, through an order to cease and desist or
an injunction, with section 5(a)(1)(C), section 5(a)(2), clause
(ii), (iii), or (iv) of section 5(a)(4)(A), section 5(b)(1)(A),
or section 5(b)(3), neither the Commission nor the Federal Communications
Commission shall be required to allege or prove the state of
mind required by such section or subparagraph.
(f) Enforcement by States-
(1) CIVIL ACTION- In any case in which the
attorney general of a State, or an official or agency of a
State, has reason to believe that an interest of the residents
of that State has been or is threatened or adversely affected
by any person who violates paragraph (1) or (2) of section
5(a), who violates section 5(d), or who engages in a pattern
or practice that violates paragraph (3), (4), or (5) of section
5(a), of this Act, the attorney general, official, or agency
of the State, as parens patriae, may bring a civil action on
behalf of the residents of the State in a district court of
the United States of appropriate jurisdiction--
(A) to enjoin further violation of section
5 of this Act by the defendant; or
(B) to obtain damages on behalf of residents
of the State, in an amount equal to the greater of--
(i) the actual monetary loss suffered
by such residents; or
(ii) the amount determined under paragraph
(3).
(2) AVAILABILITY OF INJUNCTIVE RELIEF WITHOUT
SHOWING OF KNOWLEDGE- Notwithstanding any other provision of
this Act, in a civil action under paragraph (1)(A) of this
subsection, the attorney general, official, or agency of the
State shall not be required to allege or prove the state of
mind required by section 5(a)(1)(C), section 5(a)(2), clause
(ii), (iii), or (iv) of section 5(a)(4)(A), section 5(b)(1)(A),
or section 5(b)(3).
(A) IN GENERAL- For purposes of paragraph
(1)(B)(ii), the amount determined under this paragraph is
the amount calculated by multiplying the number of violations
(with each separately addressed unlawful message received
by or addressed to such residents treated as a separate violation)
by up to $250.
(B) LIMITATION- For any violation of section
5 (other than section 5(a)(1)), the amount determined under
subparagraph (A) may not exceed $2,000,000.
(C) AGGRAVATED DAMAGES- The court may increase
a damage award to an amount equal to not more than three
times the amount otherwise available under this paragraph
if--
(i) the court determines that the defendant
committed the violation willfully and knowingly; or
(ii) the defendant's unlawful activity
included one or more of the aggravating violations set
forth in section 5(b).
(D) REDUCTION OF DAMAGES- In assessing damages
under subparagraph (A), the court may consider whether--
(i) the defendant has established and
implemented, with due care, commercially reasonable practices
and procedures designed to effectively prevent such violations;
or
(ii) the violation occurred despite commercially
reasonable efforts to maintain compliance the practices
and procedures to which reference is made in clause (i).
(4) ATTORNEY FEES- In the case of any successful
action under paragraph (1), the court, in its discretion, may
award the costs of the action and reasonable attorney fees
to the State.
(5) RIGHTS OF FEDERAL REGULATORS- The State
shall serve prior written notice of any action under paragraph
(1) upon the Federal Trade Commission or the appropriate Federal
regulator determined under subsection (b) and provide the Commission
or appropriate Federal regulator with a copy of its complaint,
except in any case in which such prior notice is not feasible,
in which case the State shall serve such notice immediately
upon instituting such action. The Federal Trade Commission
or appropriate Federal regulator shall have the right--
(A) to intervene in the action;
(B) upon so intervening, to be heard on
all matters arising therein;
(C) to remove the action to the appropriate
United States district court; and
(D) to file petitions for appeal.
(6) CONSTRUCTION- For purposes of bringing
any civil action under paragraph (1), nothing in this Act shall
be construed to prevent an attorney general of a State from
exercising the powers conferred on the attorney general by
the laws of that State to--
(A) conduct investigations;
(B) administer oaths or affirmations; or
(C) compel the attendance of witnesses or
the production of documentary and other evidence.
(7) VENUE; SERVICE OF PROCESS-
(A) VENUE- Any action brought under paragraph
(1) may be brought in the district court of the United States
that meets applicable requirements relating to venue under
section 1391 of title 28, United States Code.
(B) SERVICE OF PROCESS- In an action brought
under paragraph (1), process may be served in any district
in which the defendant--
(ii) maintains a physical place of business.
(8) LIMITATION ON STATE ACTION WHILE FEDERAL
ACTION IS PENDING- If the Commission, or other appropriate
Federal agency under subsection (b), has instituted a civil
action or an administrative action for violation of this Act,
no State attorney general, or official or agency of a State,
may bring an action under this subsection during the pendency
of that action against any defendant named in the complaint
of the Commission or the other agency for any violation of
this Act alleged in the complaint.
(9) REQUISITE SCIENTER FOR CERTAIN CIVIL ACTIONS-
Except as provided in section 5(a)(1)(C), section 5(a)(2),
clause (ii), (iii), or (iv) of section 5(a)(4)(A), section
5(b)(1)(A), or section 5(b)(3), in a civil action brought by
a State attorney general, or an official or agency of a State,
to recover monetary damages for a violation of this Act, the
court shall not grant the relief sought unless the attorney
general, official, or agency establishes that the defendant
acted with actual knowledge, or knowledge fairly implied on
the basis of objective circumstances, of the act or omission
that constitutes the violation.
(g) Action by Provider of Internet Access Service-
(1) ACTION AUTHORIZED- A provider of Internet
access service adversely affected by a violation of section
5(a)(1), 5(b), or 5(d), or a pattern or practice that violates
paragraph (2), (3), (4), or (5) of section 5(a), may bring
a civil action in any district court of the United States with
jurisdiction over the defendant--
(A) to enjoin further violation by the defendant;
or
(B) to recover damages in an amount equal
to the greater of--
(i) actual monetary loss incurred by the
provider of Internet access service as a result of such
violation; or
(ii) the amount determined under paragraph
(3).
(2) SPECIAL DEFINITION OF `PROCURE'- In any
action brought under paragraph (1), this Act shall be applied
as if the definition of the term `procure' in section 3(12)
contained, after `behalf' the words `with actual knowledge,
or by consciously avoiding knowing, whether such person is
engaging, or will engage, in a pattern or practice that violates
this Act'.
(A) IN GENERAL- For purposes of paragraph
(1)(B)(ii), the amount determined under this paragraph is
the amount calculated by multiplying the number of violations
(with each separately addressed unlawful message that is
transmitted or attempted to be transmitted over the facilities
of the provider of Internet access service, or that is transmitted
or attempted to be transmitted to an electronic mail address
obtained from the provider of Internet access service in
violation of section 5(b)(1)(A)(i), treated as a separate
violation) by--
(i) up to $100, in the case of a violation
of section 5(a)(1); or
(ii) up to $25, in the case of any other
violation of section 5.
(B) LIMITATION- For any violation of section
5 (other than section 5(a)(1)), the amount determined under
subparagraph (A) may not exceed $1,000,000.
(C) AGGRAVATED DAMAGES- The court may increase
a damage award to an amount equal to not more than three
times the amount otherwise available under this paragraph
if--
(i) the court determines that the defendant
committed the violation willfully and knowingly; or
(ii) the defendant's unlawful activity
included one or more of the aggravated violations set forth
in section 5(b).
(D) REDUCTION OF DAMAGES- In assessing damages
under subparagraph (A), the court may consider whether--
(i) the defendant has established and
implemented, with due care, commercially reasonable practices
and procedures designed to effectively prevent such violations;
or
(ii) the violation occurred despite commercially
reasonable efforts to maintain compliance with the practices
and procedures to which reference is made in clause (i).
(4) ATTORNEY FEES- In any action brought pursuant
to paragraph (1), the court may, in its discretion, require
an undertaking for the payment of the costs of such action,
and assess reasonable costs, including reasonable attorneys'
fees, against any party.
SEC. 8. EFFECT ON OTHER LAWS.
(a) FEDERAL LAW- (1) Nothing in this Act shall
be construed to impair the enforcement of section 223 or 231
of the Communications Act of 1934 (47 U.S.C. 223 or 231, respectively),
chapter 71 (relating to obscenity) or 110 (relating to sexual
exploitation of children) of title 18, United States Code, or
any other Federal criminal statute.
(2) Nothing in this Act shall be construed to
affect in any way the Commission's authority to bring enforcement
actions under FTC Act for materially false or deceptive representations
or unfair practices in commercial electronic mail messages.
(1) IN GENERAL- This Act supersedes any statute,
regulation, or rule of a State or political subdivision of
a State that expressly regulates the use of electronic mail
to send commercial messages, except to the extent that any
such statute, regulation, or rule prohibits falsity or deception
in any portion of a commercial electronic mail message or information
attached thereto.
(2) STATE LAW NOT SPECIFIC TO ELECTRONIC MAIL-
This Act shall not be construed to preempt the applicability
of--
(A) State laws that are not specific to
electronic mail, including State trespass, contract, or tort
law; or
(B) other State laws to the extent that
those laws relate to acts of fraud or computer crime.
(c) NO EFFECT ON POLICIES OF PROVIDERS OF INTERNET
ACCESS SERVICE- Nothing in this Act shall be construed to have
any effect on the lawfulness or unlawfulness, under any other
provision of law, of the adoption, implementation, or enforcement
by a provider of Internet access service of a policy of declining
to transmit, route, relay, handle, or store certain types of
electronic mail messages.
SEC. 9. DO-NOT-E-MAIL REGISTRY.
(a) IN GENERAL- Not later than 6 months after
the date of enactment of this Act, the Commission shall transmit
to the Senate Committee on Commerce, Science, and Transportation
and the House of Representatives Committee on Energy and Commerce
a report that--
(1) sets forth a plan and timetable for establishing
a nationwide marketing Do-Not-E-Mail registry;
(2) includes an explanation of any practical,
technical, security, privacy, enforceability, or other concerns
that the Commission has regarding such a registry; and
(3) includes an explanation of how the registry
would be applied with respect to children with e-mail accounts.
(b) AUTHORIZATION TO IMPLEMENT- The Commission
may establish and implement the plan, but not earlier than 9
months after the date of enactment of this Act.
SEC. 10. STUDY OF EFFECTS OF COMMERCIAL ELECTRONIC
MAIL.
(a) IN GENERAL- Not later than 24 months after
the date of the enactment of this Act, the Commission, in consultation
with the Department of Justice and other appropriate agencies,
shall submit a report to the Congress that provides a detailed
analysis of the effectiveness and enforcement of the provisions
of this Act and the need (if any) for the Congress to modify
such provisions.
(b) REQUIRED ANALYSIS- The Commission shall
include in the report required by subsection (a)--
(1) an analysis of the extent to which technological
and marketplace developments, including changes in the nature
of the devices through which consumers access their electronic
mail messages, may affect the practicality and effectiveness
of the provisions of this Act;
(2) analysis and recommendations concerning
how to address commercial electronic mail that originates in
or is transmitted through or to facilities or computers in
other nations, including initiatives or policy positions that
the Federal Government could pursue through international negotiations,
fora, organizations, or institutions; and
(3) analysis and recommendations concerning
options for protecting consumers, including children, from
the receipt and viewing of commercial electronic mail that
is obscene or pornographic.
SEC. 11. IMPROVING ENFORCEMENT BY PROVIDING
REWARDS FOR INFORMATION ABOUT VIOLATIONS; LABELING.
The Commission shall transmit to the Senate
Committee on Commerce, Science, and Transportation and the House
of Representatives Committee on Energy and Commerce--
(1) a report, within 9 months after the date
of enactment of this Act, that sets forth a system for rewarding
those who supply information about violations of this Act,
including--
(A) procedures for the Commission to grant
a reward of not less than 20 percent of the total civil penalty
collected for a violation of this Act to the first person
that--
(i) identifies the person in violation
of this Act; and
(ii) supplies information that leads to
the successful collection of a civil penalty by the Commission;
and
(B) procedures to minimize the burden of
submitting a complaint to the Commission concerning violations
of this Act, including procedures to allow the electronic
submission of complaints to the Commission; and
(2) a report, within 18 months after the date
of enactment of this Act, that sets forth a plan for requiring
commercial electronic mail to be identifiable from its subject
line, by means of compliance with Internet Engineering Task
Force Standards, the use of the characters `ADV' in the subject
line, or other comparable identifier, or an explanation of
any concerns the Commission has that cause the Commission to
recommend against the plan.
SEC. 12. RESTRICTIONS ON OTHER TRANSMISSIONS.
Section 227(b)(1) of the Communications Act
of 1934 (47 U.S.C. 227(b)(1)) is amended, in the matter preceding
subparagraph (A), by inserting `, or any person outside the United
States if the recipient is within the United States' after `United
States'.
SEC. 13. REGULATIONS.
(a) IN GENERAL- The Commission may issue regulations
to implement the provisions of this Act (not including the amendments
made by sections 4 and 12). Any such regulations shall be issued
in accordance with section 553 of title 5, United States Code.
(b) LIMITATION- Subsection (a) may not be construed
to authorize the Commission to establish a requirement pursuant
to section 5(a)(5)(A) to include any specific words, characters,
marks, or labels in a commercial electronic mail message, or
to include the identification required by section 5(a)(5)(A)
in any particular 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--
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