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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.
In this Act: (1) AFFIRMATIVE CONSENT- The term `affirmative
consent', when used with respect to a commercial
electronic mail message, means that--
(A) the recipient expressly consented to receive
the message, either in response to a clear and conspicuous
request for such consent or at the recipient's own
initiative; and
(B) if the message is from a party other than the
party to which the recipient communicated such consent,
the recipient was given clear and conspicuous notice
at 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.
(16) SENDER-
(A) IN GENERAL- Except as provided in subparagraph
(B), the term `sender', when used with respect to
a commercial electronic mail message, means a person
who initiates such a message and whose product,
service, or Internet web site is advertised or promoted
by the message.
(B) SEPARATE LINES OF BUSINESS OR DIVISIONS- If
an entity operates through separate lines of business
or divisions and holds itself out to the recipient
throughout the message as that particular line of
business or division rather than as the entity of
which such line of business or division is a part,
then the line of business or the division shall
be treated as the sender of such message for purposes
of this Act.
(17) Transactional or relationship message-
(A) IN GENERAL- The term `transactional or relationship
message' means an electronic mail message the primary
purpose of which is--
(i) to facilitate, complete, or confirm a commercial
transaction that the recipient has previously agreed
to enter into with the sender;
(ii) to provide warranty information, product recall
information, or safety or security information with
respect to a commercial product or service used
or purchased by the recipient;
(iii) to provide--
(I) notification concerning a change in the terms
or features of;
(II) notification of a change in the recipient's
standing or status with respect to; or
(III) at regular periodic intervals, account balance
information or other type of account statement with
respect to, a subscription, membership, account,
loan, or comparable ongoing commercial relationship
involving the ongoing purchase or use by the recipient
of products or services offered by the sender;
(iv) to provide information directly related to
an employment relationship or related benefit plan
in which the recipient is currently involved, participating,
or enrolled; or
(v) to deliver goods or services, including product
updates or upgrades, that the recipient is entitled
to receive under the terms of a transaction that
the recipient has previously agreed to enter into
with the sender.
(B) MODIFICATION OF DEFINITION- The Commission by
regulation pursuant to section 13 may modify the
definition in subparagraph (A) to expand or contract
the categories of messages that are treated as transactional
or relationship messages for purposes of this Act
to the extent that such modification is necessary
to accommodate changes in electronic mail technology
or practices and accomplish the purposes of this
Act.
SEC. 4. PROHIBITION AGAINST
PREDATORY AND ABUSIVE COMMERCIAL E-MAIL.
(a) OFFENSE-
(1) IN GENERAL- Chapter 47 of title 18, United States
Code, is amended by adding at the end the following
new section:
`Sec. 1037. Fraud and related activity in connection
with electronic mail
`(a) IN GENERAL- Whoever, in or affecting interstate
or foreign commerce, knowingly--
`(1) accesses a protected computer without authorization,
and intentionally initiates the transmission of
multiple commercial electronic mail messages from
or through such computer,
`(2) uses a protected computer to relay or retransmit
multiple commercial electronic mail messages, with
the intent to deceive or mislead recipients, or
any Internet access service, as to the origin of
such messages,
`(3) materially falsifies header information in
multiple commercial electronic mail messages and
intentionally initiates the transmission of such
messages,
`(4) registers, using information that materially
falsifies the identity of the actual registrant,
for five or more electronic mail accounts or online
user accounts or two or more domain names, and intentionally
initiates the transmission of multiple commercial
electronic mail messages from any combination of
such accounts or domain names, or
`(5) falsely represents oneself to be the registrant
or the legitimate successor in interest to the registrant
of 5 or more Internet Protocol addresses, and intentionally
initiates the transmission of multiple commercial
electronic mail messages from such addresses,
or conspires to do so, shall be punished as provided
in subsection (b).
`(b) PENALTIES- The punishment for an offense under
subsection (a) is--
`(1) a fine under this title, imprisonment for not
more than 5 years, or both, if--
`(A) the offense is committed in furtherance of
any felony under the laws of the United States or
of any State; or
`(B) the defendant has previously been convicted
under this section or section 1030, or under the
law of any State for conduct involving the transmission
of multiple commercial electronic mail messages
or unauthorized access to a computer system;
`(2) a fine under this title, imprisonment for not
more than 3 years, or both, if--
`(A) the offense is an offense under subsection
(a)(1);
`(B) the offense is an offense under subsection
(a)(4) and involved 20 or more falsified electronic
mail or online user account registrations, or 10
or more falsified domain name registrations;
`(C) the volume of electronic mail messages transmitted
in furtherance of the offense exceeded 2,500 during
any 24-hour period, 25,000 during any 30-day period,
or 250,000 during any 1-year period;
`(D) the offense caused loss to one or more persons
aggregating $5,000 or more in value during any 1-year
period;
`(E) as a result of the offense any individual committing
the offense obtained anything of value aggregating
$5,000 or more during any 1-year period; or
`(F) the offense was undertaken by the defendant
in concert with three or more other persons with
respect to whom the defendant occupied a position
of organizer or leader; and
`(3) a fine under this title or imprisonment for
not more than 1 year, or both, in any other case.
`(c) FORFEITURE-
`(1) IN GENERAL- The court, in imposing sentence
on a person who is convicted of an offense under
this section, shall order that the defendant forfeit
to the United States--
`(A) any property, real or personal, constituting
or traceable to gross proceeds obtained from such
offense; and
`(B) any equipment, software, or other technology
used or intended to be used to commit or to facilitate
the commission of such offense.
`(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 y section
5(a)(1)(C), section 5(a)(2), clause (ii), (iii),
or (iv) of section 5(a)(4)(A), section 5(b)(1)(A),
or section 5(b)(3).
(3) Statutory damages-
(A) IN GENERAL- For purposes of paragraph (1)(B)(ii),
the amount determined under this paragraph is the
amount calculated by multiplying the number of violations
(with each separately addressed unlawful message
received by or addressed to such residents treated
as a separate violation) by up to $250.
(B) LIMITATION- For any violation of section 5 (other
than section 5(a)(1)), the amount determined under
subparagraph (A) may not exceed $2,000,000.
(C) AGGRAVATED DAMAGES- The court may increase a
damage award to an amount equal to not more than
three times the amount otherwise available under
this paragraph if--
(i) the court determines that the defendant committed
the violation willfully and knowingly; or
(ii) the defendant's unlawful activity included
one or more of the aggravating violations set forth
in section 5(b).
(D) REDUCTION OF DAMAGES- In assessing damages under
subparagraph (A), the court may consider whether--
(i) the defendant has established and implemented,
with due care, commercially reasonable practices
and procedures designed to effectively prevent such
violations; or
(ii) the violation occurred despite commercially
reasonable efforts to maintain compliance the practices
and procedures to which reference is made in clause
(i).
(4) ATTORNEY FEES- In the case of any successful
action under paragraph (1), the court, in its discretion,
may award the costs of the action and reasonable
attorney fees to the State.
(5) RIGHTS OF FEDERAL REGULATORS- The State shall
serve prior written notice of any action under paragraph
(1) upon the Federal Trade Commission or the appropriate
Federal regulator determined under subsection (b)
and provide the Commission or appropriate Federal
regulator with a copy of its complaint, except in
any case in which such prior notice is not feasible,
in which case the State shall serve such notice
immediately upon instituting such action. The Federal
Trade Commission or appropriate Federal regulator
shall have the right--
(A) to intervene in the action;
(B) upon so intervening, to be heard on all matters
arising therein;
(C) to remove the action to the appropriate United
States district court; and
(D) to file petitions for appeal.
(6) CONSTRUCTION- For purposes of bringing any civil
action under paragraph (1), nothing in this Act
shall be construed to prevent an attorney general
of a State from exercising the powers conferred
on the attorney general by the laws of that State
to--
(A) conduct investigations;
(B) administer oaths or affirmations; or
(C) compel the attendance of witnesses or the production
of documentary and other evidence.
(7) VENUE; SERVICE OF PROCESS-
(A) VENUE- Any action brought under paragraph (1)
may be brought in the district court of the United
States that meets applicable requirements relating
to venue under section 1391 of title 28, United
States Code.
(B) SERVICE OF PROCESS- In an action brought under
paragraph (1), process may be served in any district
in which the defendant--
(i) is an inhabitant; or
(ii) maintains a physical place of business.
(8) LIMITATION ON STATE ACTION WHILE FEDERAL ACTION
IS PENDING- If the Commission, or other appropriate
Federal agency under subsection (b), has instituted
a civil action or an administrative action for violation
of this Act, no State attorney general, or official
or agency of a State, may bring an action under
this subsection during the pendency of that action
against any defendant named in the complaint of
the Commission or the other agency for any violation
of this Act alleged in the complaint.
(9) REQUISITE SCIENTER FOR CERTAIN CIVIL ACTIONS-
Except as provided in section 5(a)(1)(C), section
5(a)(2), clause (ii), (iii), or (iv) of section
5(a)(4)(A), section 5(b)(1)(A), or section 5(b)(3),
in a civil action brought by a State attorney general,
or an official or agency of a State, to recover
monetary damages for a violation of this Act, the
court shall not grant the relief sought unless the
attorney general, official, or agency establishes
that the defendant acted with actual knowledge,
or knowledge fairly implied on the basis of objective
circumstances, of the act or omission that constitutes
the violation.
(g) Action by Provider of Internet Access Service-
(1) ACTION AUTHORIZED- A provider of Internet access
service adversely affected by a violation of section
5(a)(1), 5(b), or 5(d), or a pattern or practice
that violates paragraph (2), (3), (4), or (5) of
section 5(a), may bring a civil action in any district
court of the United States with jurisdiction over
the defendant--
(A) to enjoin further violation by the defendant;
or
(B) to recover damages in an amount equal to the
greater of--
(i) actual monetary loss incurred by the provider
of Internet access service as a result of such violation;
or
(ii) the amount determined under paragraph (3).
(2) SPECIAL DEFINITION OF `PROCURE'- In any action
brought under paragraph (1), this Act shall be applied
as if the definition of the term `procure' in section
3(12) contained, after `behalf' the words `with
actual knowledge, or by consciously avoiding knowing,
whether such person is engaging, or will engage,
in a pattern or practice that violates this Act'.
(3) STATUTORY DAMAGES-
(A) IN GENERAL- For purposes of paragraph (1)(B)(ii),
the amount determined under this paragraph is the
amount calculated by multiplying the number of violations
(with each separately addressed unlawful message
that is transmitted or attempted to be transmitted
over the facilities of the provider of Internet
access service, or that is transmitted or attempted
to be transmitted to an electronic mail address
obtained from the provider of Internet access service
in violation of section 5(b)(1)(A)(i), treated as
a separate violation) by--
(i) up to $100, in the case of a violation of section
5(a)(1); or
(ii) up to $25, in the case of any other violation
of section 5.
(B) LIMITATION- For any violation of section 5 (other
than section 5(a)(1)), the amount determined under
subparagraph (A) may not exceed $1,000,000.
(C) AGGRAVATED DAMAGES- The court may increase a
damage award to an amount equal to not more than
three times the amount otherwise available under
this paragraph if--
(i) the court determines that the defendant committed
the violation willfully and knowingly; or
(ii) the defendant's unlawful activity included
one or more of the aggravated violations set forth
in section 5(b).
(D) REDUCTION OF DAMAGES- In assessing damages under
subparagraph (A), the court may consider whether--
(i) the defendant has established and implemented,
with due care, commercially reasonable practices
and procedures designed to effectively prevent such
violations; or
(ii) the violation occurred despite commercially
reasonable efforts to maintain compliance with the
practices and procedures to which reference is made
in clause (i).
(4) ATTORNEY FEES- In any action brought pursuant
to paragraph (1), the court may, in its discretion,
require an undertaking for the payment of the costs
of such action, and assess reasonable costs, including
reasonable attorneys' fees, against any party.
SEC. 8. EFFECT ON OTHER LAWS.
(a) FEDERAL LAW- (1) Nothing in this Act shall be
construed to impair the enforcement of section 223
or 231 of the Communications Act of 1934 (47 U.S.C.
223 or 231, respectively), chapter 71 (relating
to obscenity) or 110 (relating to sexual exploitation
of children) of title 18, United States Code, or
any other Federal criminal statute.
(2) Nothing in this Act shall be construed to affect
in any way the Commission's authority to bring enforcement
actions under FTC Act for materially false or deceptive
representations or unfair practices in commercial
electronic mail messages.
(b) STATE LAW-
(1) IN GENERAL- This Act supersedes any statute,
regulation, or rule of a State or political subdivision
of a State that expressly regulates the use of electronic
mail to send commercial messages, except to the
extent that any such statute, regulation, or rule
prohibits falsity or deception in any portion of
a commercial electronic mail message or information
attached thereto.
(2) STATE LAW NOT SPECIFIC TO ELECTRONIC MAIL- This
Act shall not be construed to preempt the applicability
of--
(A) State laws that are not specific to electronic
mail, including State trespass, contract, or tort
law; or
(B) other State laws to the extent that those laws
relate to acts of fraud or computer crime.
(c) NO EFFECT ON POLICIES OF PROVIDERS OF INTERNET
ACCESS SERVICE- Nothing in this Act shall be construed
to have any effect on the lawfulness or unlawfulness,
under any other provision of law, of the adoption,
implementation, or enforcement by a provider of
Internet access service of a policy of declining
to transmit, route, relay, handle, or store certain
types of electronic mail messages.
SEC. 9. DO-NOT-E-MAIL REGISTRY.
(a) IN GENERAL- Not later than 6 months after the
date of enactment of this Act, the Commission shall
transmit to the Senate Committee on Commerce, Science,
and Transportation and the House of Representatives
Committee on Energy and Commerce a report that--
(1) sets forth a plan and timetable for establishing
a nationwide marketing Do-Not-E-Mail registry;
(2) includes an explanation of any practical, technical,
security, privacy, enforceability, or other concerns
that the Commission has regarding such a registry;
and
(3) includes an explanation of how the registry
would be applied with respect to children with e-mail
accounts.
(b) AUTHORIZATION TO IMPLEMENT- The Commission may
establish and implement the plan, but not earlier
than 9 months after the date of enactment of this
Act.
SEC. 10. STUDY OF EFFECTS
OF COMMERCIAL ELECTRONIC MAIL.
(a) IN GENERAL- Not later than 24 months after the
date of the enactment of this Act, the Commission,
in consultation with the Department of Justice and
other appropriate agencies, shall submit a report
to the Congress that provides a detailed analysis
of the effectiveness and enforcement of the provisions
of this Act and the need (if any) for the Congress
to modify such provisions.
(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--
(A) at the time of subscribing to such service;
and
(B) in any billing mechanism; and
(4) determine how a sender of mobile service commercial
messages may comply with the provisions of this
Act, considering the unique technical aspects, including
the functional and character limitations, of devices
that receive such messages.
(c) OTHER FACTORS CONSIDERED- The Federal Communications
Commission shall consider the ability of a sender
of a commercial electronic mail message to reasonably
determine that the message is a mobile service commercial
message.
(d) MOBILE SERVICE COMMERCIAL MESSAGE DEFINED- In
this section, the term `mobile service commercial
message' means a commercial electronic mail message
that is transmitted directly to a wireless device
that is utilized by a subscriber of commercial mobile
service (as such term is defined in section 332(d)
of the Communications Act of 1934 (47 U.S.C. 332(d)))
in connection with such service.
SEC.
15. SEPARABILITY.
If any provision of this Act or the application
thereof to any person or circumstance is held invalid,
the remainder of this Act and the application of
such provision to other persons or circumstances
shall not be affected.
SEC. 16.
EFFECTIVE DATE.
The provisions of this Act, other than section 9,
shall take effect on January 1, 2004.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
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