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108th CONGRESS 1st Session H. R. 2214
To prevent unsolicited commercial electronic mail. IN THE HOUSE OF REPRESENTATIVES
May 22, 2003 Mr. BURR (for himself, Mr. SENSENBRENNER, Mr. TAUZIN, Mr. GOODLATTE, Mr. UPTON, Ms. HART, Mr. STEARNS, and Mr. CANNON) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
A BILL
To prevent unsolicited commercial electronic mail. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) SHORT TITLE- This Act may be cited as the 'Reduction in Distribution of Spam Act of 2003'.
(b) TABLE OF CONTENTS- The table of contents for this Act is as follows:
Sec. 1. Short title and table of contents.
Sec. 2. Findings and determination of policy.
TITLE I--PROTECTIONS AGAINST CERTAIN COMMERCIAL ELECTRONIC MAIL
Sec. 101. Restrictions on commercial electronic mail.
Sec. 102. Private right of action for providers of Internet access service.
Sec. 103. Actions by States.
Sec. 104. Prohibition of class actions; attorney's fees.
Sec. 105. Enforcement by Federal Trade Commission.
Sec. 106. Restrictions on other unsolicited transmissions.
Sec. 107. Exclusiveness of remedies.
TITLE II--AMENDMENTS TO TITLE 18, UNITED STATES CODE
Sec. 201. Criminal penalties and related provisions.
TITLE III--GENERAL PROVISIONS
Sec. 301. Regulations and report.
Sec. 302. Effect on other laws.
Sec. 303. Study of effects of Act.
Sec. 304. Definitions.
Sec. 305. Effective date.
SEC. 2. FINDINGS AND DETERMINATION OF POLICY.
(a) FINDINGS- The Congress finds the following:
(1) Electronic mail (email) has rapidly become an integral means of commercial and personal communication and presents unprecedented opportunities for the development and growth of frictionless global commerce.
(2) With the increasingly accepted use of email has come the explosion of unsolicited commercial electronic mail (UCE), also known as spam, which is flooding the arteries of critical communications networks and servers and threatening the viability of email as a primary communications medium.
(3) Internet observers and experts are concerned about the effect of the increasing abundance of UCE on network bandwidth, network storage costs, user productivity, and legal vulnerability to reduce functionality of global networks. UCE currently comprises nearly 40 percent of all email activity, up from 8 percent in 2001.
(4) UCE poses network security risks to businesses and governments because of the introduction of viruses and malicious code delivered via UCE messages.
(5) The increasing prevalence of UCE has led to a decreased level of consumer trust for legitimate email marketers and decreased willingness of end users to test new advertising formats, thus affecting potential for all forms of advertising in an already depressed marketplace.
(6) For the Internet to maintain and build upon its commercial growth, users must have confidence in the security and usability of this electronic medium. But 'e-commerce' is still in its infancy and any legislation or regulation regarding email must be narrowly tailored to deal with real problems.
(7) While some senders of UCE provide simple and reliable ways for recipients to reject (or 'opt-out' of) receipt of future UCE from such senders, other senders provide no such 'opt-out' mechanism, or refuse to honor the repeated requests of recipients not to receive UCE.
(8) UCE frequently contains fraudulent claims or sexually explicit material. UCE with this type of content merits additional restrictions and penalties.
(9) An increasing number of senders of UCE purposefully include misleading information or disguise the source of such email, which prevents recipients from recognizing UCE and impedes ISPs' ability to identify the source of disruption to their communications networks. There is no legitimate reason to falsify the header information accompanying commercial email and these actions in some cases merit criminal penalties.
(10) Such intentionally misleading information can also evade UCE filtering technology at both an ISP level as well as at the end user level. Filtering technology is one of the best methods to provide comprehensive protection to ISPs' communications networks and to the end user. But in the absence of alternative solutions, UCE filters attempting to catch more spam are unwittingly blocking an increasing amount of personal and commercial email that end users actually want and need to receive.
(11) In making good faith efforts to protect their citizens from the truly interstate phenomenon of spam, some States have inadvertently set up multiple and conflicting regimes governing commercial email that make it difficult for legitimate commercial emailers to comply but do little to stop egregious spammers.
(12) Federal Government action is necessary to preserve the communications networks that sustain the digital economy and protect consumers. But ultimately, government action can only solve part of the problem and must be combined with technological solutions, customer awareness, and trusted sender cooperative agreements between legitimate senders and ISPs to effectively curb UCE.
(b) CONGRESSIONAL DETERMINATION OF PUBLIC POLICY- On the basis of the findings in subsection (a), the Congress determines that--
(1) there is substantial government interest in regulation of UCE;
(2) senders of UCE should not mislead recipients or disguise the electronic source of the electronic mail message, nor send sexually explicit emails without appropriate warnings;
(3) recipients of UCE should be able to recognize UCE and have an opportunity to decline to receive additional UCE from the same source; and
(4) ISPs, recipients of UCE, and others affected by UCE also have a right to use technological measures to protect their networks and computers from receiving unwanted or harmful commercial electronic mail.
TITLE I--PROTECTIONS AGAINST CERTAIN COMMERCIAL ELECTRONIC MAIL SEC. 101. RESTRICTIONS ON COMMERCIAL ELECTRONIC MAIL.
(a) REQUIRED INCLUSIONS IN ALL COMMERCIAL ELECTRONIC MAIL-
(1) IN GENERAL- No person may initiate in interstate commerce the transmission, to a covered computer, of any commercial electronic mail message unless the message contains all of the following:
(A) IDENTIFICATION- Clear and conspicuous identification that the message is an advertisement or solicitation.
(B) NOTICE OF OPT-OUT OPPORTUNITY- Clear and conspicuous notice of the opportunity under subparagraph (C) to decline to receive future unsolicited commercial electronic mail messages from the sender.
(C) MECHANISM TO OPT-OUT- A functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed, that--
(i) a recipient may use to submit, in a manner specified by the sender, a reply electronic mail message or other form of Internet-based communication requesting not to receive any future unsolicited 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 not less than 30 days after the transmission of the original message.
(D) STREET ADDRESS- A valid physical street address of the sender.
(2) MORE DETAILED REQUESTS POSSIBLE- In a commercial electronic mail message complying with the requirements of paragraph (1)(C), the sender may also include, in the message, options for the recipient to submit more detailed requests concerning the types of commercial electronic mail messages that the recipient does or does not wish to receive in the future from the sender, based upon products, services, divisions, organizations, companies, or other selections.
(3) TEMPORARY INABILITY TO RECEIVE MESSAGES- A return electronic mail address or other mechanism does not fail to comply with the requirements of paragraph (1)(C) if it is unexpectedly and temporarily unable to receive messages due to technical or capacity problems, if the problem with receiving messages is corrected within a reasonable time period.
(b) PROHIBITION OF TRANSMISSION OF UNSOLICITED COMMERCIAL ELECTRONIC MAIL AFTER OBJECTION- If a recipient makes a request to a sender, by using a mechanism described in subsection (a)(1)(C), not to receive some or any unsolicited commercial electronic mail messages from such sender--
(1) the sender may not initiate the transmission to the recipient, during the 3-year period beginning 10 business days after the receipt of such request, of an unsolicited commercial electronic mail message that falls within the scope of the request, except that during the 6-month period beginning on the effective date under section 305 such 3-year period shall begin 20 business days after receipt of such request;
(2) no person acting on behalf of the sender may initiate the transmission to the recipient, during the 3-year period beginning 10 business days after the receipt by such person of such request, of an unsolicited commercial electronic mail message that such person knows, should have known, or consciously avoids knowing falls within the scope of the request, except that during the 6-month period beginning on the effective date under section 305 such 3-year period shall begin 20 business days after receipt of such request;
(3) no person acting on behalf of the sender may assist in initiating the transmission to the recipient, through the provision or selection of addresses to which the message will be transmitted, of an unsolicited commercial electronic mail message that such person knows, should have known, or consciously avoids knowing would violate paragraph (1) or (2); and
(4) the sender may not sell, lease, exchange, or otherwise transfer or release the electronic mail address of the recipient (including through any transaction or other transfer involving mailing lists bearing the electronic mail address of the recipient) for any purpose other than compliance with this Act or any other provision of law.
(c) PROHIBITION OF TRANSMISSION OF COMMERCIAL ELECTRONIC MAIL WITH FRAUDULENT HEADER INFORMATION- No person may initiate in interstate commerce the transmission, to a covered computer, of a commercial electronic mail message that contains or is accompanied by header information that is false or misleading (including header information that uses a third party's domain name without the third party's permission). For purposes of this subsection, header information that includes an originating electronic mail address the use of which in connection with the message was not authorized by a legitimate holder of the address, or access to which was obtained by means of false or fraudulent pretense or representations, shall be considered misleading.
(d) PROHIBITION OF TRANSMISSION OF COMMERCIAL ELECTRONIC MAIL FROM ILLEGALLY HARVESTED ELECTRONIC MAIL ADDRESSES-
(1) IN GENERAL- No person may initiate in interstate commerce the transmission, to a covered computer, of a commercial electronic mail message that is prohibited under subsection (a), (b), or (c) or assist in the origination of such a message through the provision or selection of electronic mail addresses to which the transmission of such message is initiated, if such person knows, should have known, or consciously avoids knowing, that--
(A) the electronic mail address of the recipient was obtained, using an automated means, from an Internet website or proprietary online service operated by another person, without the authorization of that person; and
(B) the website or proprietary online service from which the address was obtained included, at the time the address was obtained, a notice stating that the operator of such a website or proprietary online service will not give, sell, or otherwise transfer addresses maintained by such site or service to any other party for the purpose of initiating, or enabling others to initiate, commercial electronic mail messages.
(2) DISCLAIMER- Nothing in this subsection creates an ownership or proprietary interest in such electronic mail addresses.
(e) SAVINGS PROVISION FOR GLBA- Subsection (b)(4) of this section shall not apply to prohibit a disclosure by a financial institution of nonpublic personal information that is permissible under title V of the Gramm-Leach-Bliley Act (15 U.S.C. 6801 et seq.) and the regulations thereunder.
SEC. 102. PRIVATE RIGHT OF ACTION FOR PROVIDERS OF INTERNET ACCESS SERVICE.
(a) AUTHORIZATION- A provider of Internet access service adversely affected by--
(1) a pattern or practice of violations of section 101(b) or the regulations prescribed under such section; or
(2) a violation of subsection (c) or (d) of section 101 or the regulations prescribed under such subsection,
may bring, in an appropriate district court of the United States, either or both of the civil actions under subsection (b).
(b) CIVIL ACTIONS- The civil actions under this subsection are as follows:
(1) INJUNCTION- An action to enjoin the defendant from further engaging in such pattern or practice or committing any further violation, as appropriate.
(2) MONETARY DAMAGES- An action to obtain damages in an amount equal to the greater of--
(A) the actual monetary loss incurred by the provider of Internet access service as a result of such violation; or
(B) the amount determined under subsection (c).
(c) STATUTORY DAMAGES-
(1) VIOLATIONS OF PROTECTION FOR RECIPIENTS- In the case of a violation of section 101(b) or the regulations prescribed under such section:
(A) DAMAGES PER VIOLATION- Except as provided in subparagraphs (B), (C), and (D), the amount determined under this subsection is $10 for each separate electronic mail address to which is initiated, in violation of such subsection, the transmission of a commercial electronic mail message, over the facilities of the provider of Internet access service.
(B) LIMITATION- Except as provided in subparagraphs (C) and (D), for each commercial electronic mail message the transmission of which is unlawfully initiated and that is addressed to multiple electronic mail addresses, the amount determined under subparagraph (A) may not exceed $500,000.
(C) TREBLE DAMAGES FOR INTENTIONAL VIOLATIONS- If the court finds in an action under this section that the defendant committed the violation willfully or knowingly, the court may, in its discretion, increase the amount of the limitation under subparagraph (B) to an amount equal to not more than three times the amount otherwise available under such subparagraph, not to exceed $1,500,000. In making a determination with regard to the amount of an increase under this subparagraph, the court shall take into consideration whether violation involved use of automated means to generate electronic mail addresses based on permutations of combining of names, letters, or numbers.
(D) REDUCTION-
(i) IN GENERAL- Subject to clause (ii), the court shall reduce the amount under subparagraph (A) for each violation if the court determines that--
(I) the defendant established and implemented, with due care, reasonable practices and procedures intended to prevent such violations; and
(II) such violations occurred despite good faith efforts to maintain compliance with such practices and procedures.
(ii) LIMITATION- If the amount otherwise determined under this paragraph exceeds $75,000, the court may not reduce the amount under subparagraph (A) for each violation such that the amount determined under this paragraph is less than $75,000.
(2) VIOLATIONS OF PROTECTIONS FOR PROVIDERS OF INTERNET ACCESS SERVICE- In the case of a violation of subsection (c) or (d) of section 101 or the regulations prescribed under such subsection, the amount determined under this subsection is $50 for each separate electronic mail address to which the transmission of a commercial electronic mail message is initiated in violation of such subsection.
SEC. 103. ACTIONS BY STATES.
(a) CIVIL ACTION- Except as provided in subsection (c), in any case in which the attorney general of a State, or an official or agency of a State, has reason to believe that any person has engaged or is engaging in a pattern or practice of initiating transmissions to residents of that State that violates subsection (c) or (d) of section 101 or the regulations prescribed under such subsection, the attorney general, official, or agency of the State may bring either or both of the following civil actions on behalf of its residents:
(1) INJUNCTION- An action to enjoin the defendant from further engaging in such pattern or practice.
(2) MONETARY DAMAGES- An action to obtain damages on behalf of residents of the State, in an amount equal to the greater of--
(A) the actual monetary loss suffered by such residents; or
(B) the amount determined under subsection (b).
(b) STATUTORY DAMAGES-
(1) PER VIOLATION- Except as provided in paragraphs (2) and (3), for purposes of subsection (a)(2)(B), the amount determined under this subsection is $100 for each separate electronic mail address to which the transmission of a commercial electronic mail message is initiated in violation of the subsections or regulations referred to in subsection (a).
(2) LIMITATION- For each commercial electronic mail message the transmission of which is unlawfully initiated and that is addressed to multiple electronic mail addresses, the amount determined under paragraph (1) may not exceed--
(A) except as provided in subparagraph (B), $1,000,000; or
(B) in any case in which the court increases the amount of the award pursuant to paragraph (3), $3,000,000.
(3) TREBLE DAMAGES- Subject to paragraph (2)(B), in an action under this section, the court may, in its discretion, increase the amount of the award to an amount equal to not more than three times the amount otherwise available under paragraph (1). In making a determination under this paragraph, the court shall take into consideration the nature, circumstances, extent, and gravity of the violation involved, including the following factors:
(A) The volume of electronic mail involved in the violation.
(B) The manner in which the violation was perpetrated.
(C) Whether the violation involved a violation of any other provision of Federal law.
(D) The extent of economic gain resulting from the violation.
(E) Any history of prior violations by the violator.
(F) Whether violation involved use of automated means to generate electronic mail addresses based on permutations of combining of names, letters, or numbers.
(G) Such other factors as justice may require.
(c) LIMITATION IN CASES OF FEDERAL ACTION- If the Commission has commenced an administrative or civil action for a violation of subsection (c) or (d) of section 101 or the regulations prescribed under such subsection, with respect to any conduct, or for a violation of section 622 of title 18, United States Code, with respect to any conduct, or the Attorney General has commenced a criminal proceeding or civil action for a violation of section 622 of title 18, United States Code, with respect to any conduct, no State may bring an action under this section with respect to the same conduct.
(d) EXCLUSIVE JURISDICTION OF FEDERAL COURTS- The district courts of the United States, the United States courts of any territory, and the District Court of the United States for the District of Columbia shall have exclusive jurisdiction over all civil actions brought under this section. Upon proper application, such courts shall also have jurisdiction to issue writs of mandamus, or orders affording like relief, commanding the defendant to comply with the provisions of subsection (c) or (d) of section 101 or the regulations prescribed under such section, including the requirement that the defendant take such action as is necessary to remove the danger of such violation. Upon a proper showing, a permanent or temporary injunction or restraining order shall be granted without bond.
(e) NOTICE TO COMMISSION OF STATE ACTION; INTERVENTION- The State shall serve prior written notice of any civil action under this section upon the Commission and provide the Commission with a copy of its complaint, except in any case where such prior notice is not feasible, in which case the State shall serve such notice immediately upon instituting such action. The Commission shall have the right to intervene in the action, upon so intervening, to be heard on all matters arising in the action, and to file petitions for appeal.
(f) VENUE AND SERVICE OF PROCESS- Any civil action brought under this section in a district court of the United States may be brought in any district court of the United States that meets applicable requirements relating to venue under section 1391 of title 28, United States Code.
(g) INVESTIGATORY POWERS- For purposes of bringing any civil action under this section, nothing in this Act shall prevent the attorney general of a State, or an official or agency of a State, from exercising the powers conferred on the attorney general, official, or agency by the laws of such State to conduct investigations or to administer oaths or affirmations or to compel the attendance of witnesses or the production of documentary and other evidence.
SEC. 104. PROHIBITION OF CLASS ACTIONS; ATTORNEY'S FEES.
(a) PROHIBITION OF CLASS ACTIONS- A civil action arising under section 102 or 103 may not be brought as a plaintiff class action pursuant to the Federal Rules of Civil Procedure.
(b) COSTS AND ATTORNEY'S FEES- In any action brought under section 102 or 103, the court may, in its discretion, require an undertaking for the payment of costs of such action, and assess reasonable costs, including
reasonable attorneys' fees, against any party found in the action to have committed a violation on which the action was based.
SEC. 105. ENFORCEMENT BY FEDERAL TRADE COMMISSION.
The same powers and authorities by which the Federal Trade Commission and the Attorney General enforce compliance, by persons subject to the jurisdiction of the Commission under the Federal Trade Commission Act, with the provisions of such Act and the regulations issued thereunder by the Commission, shall be available to the Commission and the Attorney General to enforce compliance, by all persons, with the provisions of section 101 of this Act and the regulations issued under such section. For purposes of exercising such powers and authorities to enforce compliance with rules issued under section 101 of this Act, such rules shall be treated as having been issued under section 18 of the Federal Trade Commission Act (notwithstanding issuance in accordance with section 301(a) of this Act).
SEC. 106. RESTRICTIONS ON OTHER UNSOLICITED TRANSMISSIONS.
(a) CLARIFICATION REGARDING LOCATION OF ORIGINATOR- 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'.
(b) CLARIFICATION REGARDING PROHIBITION OF SENDING UNSOLICITED FAX ADVERTISEMENTS- Section 227(b)(1)(C) of the Communications Act of 1934 (47 U.S.C. 227(b)(1)(C)) is amended by inserting ', or hire, employ, contract, or otherwise cause someone else to use,' after 'to use'.
SEC. 107. EXCLUSIVENESS OF REMEDIES.
The remedies of this title are the exclusive civil remedies for violations of section 101.
TITLE II--AMENDMENTS TO TITLE 18, UNITED STATES CODE SEC. 201. CRIMINAL PENALTIES AND RELATED PROVISIONS.
(a) IN GENERAL- Part I of title 18, United States Code, is amended by inserting after chapter 29 the following:
'CHAPTER 30--ELECTRONIC MAIL
'Sec.
'621. Definitions for chapter.
'622. Falsifying sender's identity in commercial electronic mail.
'623. Failure to place warning labels on unsolicited commercial electronic mail containing sexually oriented material.
'624. Criminal penalties for violation of certain sections.
'625. Illicit harvesting of electronic mail addresses.
'626. Civil enforcement of chapter.
'Sec. 621. Definitions for chapter
'In this chapter, the following definitions apply:
'(1) COMMERCIAL ELECTRONIC MAIL MESSAGE-
'(A) GENERALLY- The term 'commercial electronic mail message' means an electronic mail message the primary purpose of which is the commercial advertisement or promotion of a product or service.
'(B) 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, indicate that the primary purpose of the message is the commercial advertisement or promotion of a product or service.
'(2) ELECTRONIC MAIL MESSAGE- The term 'electronic mail message' means a message as transmitted to an electronic mail address.
'(3) CONSENT-
'(A) IN GENERAL- The term 'consent', when used with respect to a commercial electronic mail message, means that--
'(i) the recipient has expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or through an affirmative request to receive such message or messages; and
'(ii) the recipient has not subsequently made a request, by using a mechanism described in section 101(a)(1)(C) of the Reduction in Distribution of Spam Act of 2003, not to receive such message or not to receive messages of a scope within which such message falls.
'(B) MESSAGES FROM THIRD PARTIES- Such term includes consent to receipt of a message from a third party pursuant to transfer of the recipient's electronic mail address, but only if the recipient was provided with clear and conspicuous notice that such transfer could occur.
'(C) MESSAGES TO PREVIOUS HOLDER OF ELECTRONIC MAIL ADDRESS- In the case of a commercial electronic mail message transmitted or delivered to a recipient at an electronic mail address that has been reassigned to the recipient from a previous user, such recipient shall be considered for purposes of this definition to have consented to receipt of such messages at such address to the same extent as the previous authorized user or users of such address unless the sender of the message has actual knowledge that the address has been so reassigned or of a request under subclause (A)(ii) by the recipient.
'(D) TIMING- Consent shall be considered to be given, for purposes of this definition, at the time such consent is received by the sender.
'(4) 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.
'(5) PROTECTED COMPUTER- The term 'protected computer' means a computer described in section 1030(e)(2)(B).
'(6) STATE- The term 'State' includes the District of Columbia, Puerto Rico, and any other territory or possession of the United States.
'(7) UNSOLICITED COMMERCIAL ELECTRONIC MAIL MESSAGE- The term 'unsolicited commercial electronic mail message' means any commercial electronic mail message that is transmitted to a recipient without the recipient's prior consent.
'Sec. 622. Falsifying sender's identity in commercial electronic mail.
'(a) IN GENERAL- Whoever intentionally sends to a covered computer a commercial electronic mail message that the sender knows falsifies the sender's identity shall be punished as provided in section 624.
'(b) METHODS OF FALSIFYING IDENTITY- For the purposes of subsection (a), an identity may be falsified by any means, and the following conduct shall be considered to be a falsification of identity:
'(1) By accompanying the message with header information that is false as to the identity of the sender (including header information that uses a third party's domain name without the third party's permission) or as to the routing of the message.
'(2) By accessing a covered computer or computer network without authorization or exceeding authorized access and, by means of such conduct, sending, from or through that computer or network, the message that falsifies the identity of the sender.
'(3) Registering, using information that falsifies the identity of the registrant, for multiple electronic mail accounts or domain names, and sending the message from those accounts, or from or advertising those domain names, but failing to include in a conspicuous form in the message the identity and current contact information of the sender.
'(c) AFFIRMATIVE DEFENSE- It is an affirmative defense to a prosecution for an offense under subsection (a), which the defendant must prove by a preponderance of the evidence, that the defendant sent fewer than 100 messages of the type prohibited by that subsection during any 30-day period.
'Sec. 623. Failure to place warning labels on unsolicited commercial electronic mail containing sexually oriented material
'(a) IN GENERAL- Whoever knowingly sends an unsolicited commercial electronic mail message that includes sexually oriented material to a covered computer and knowingly fails to include in or associated with that electronic mail message the marks or notices prescribed by the Federal Trade Commission under this section shall be punished as provided in section 624.
'(b) PRESCRIPTION OF MARKS AND NOTICES- The Federal Trade Commission shall prescribe marks or notices to be included in or associated with unsolicited commercial electronic mail that contains a sexually oriented advertisement, in order to inform the recipient of that fact and to facilitate filtering of such electronic mail.
'(c) DEFINITION- In this section, the term 'sexually oriented material' means any material that depicts sexually explicit conduct (as that term is defined in section 2256), unless the depiction constitutes a small and insignificant part of the whole, the remainder of which is not primarily devoted to sexual matters.
'Sec. 624. Criminal penalties for violation of certain sections
'(a) PUNISHMENT- The punishment for an offense under section 622 or 623 is--
'(1) for an offense--
'(A) occurring after the defendant was convicted for another offense under this chapter; or
'(B) involving 10,000 or more electronic mail messages sent within a 30-day period;
a fine under this title or imprisonment for not more than 2 years, or both; and
'(2) in any other case, a fine under this title or imprisonment for not more than one year, or both.
'(b) FACTORS TO BE CONSIDERED BY SENTENCING COMMISSION- In establishing sentencing guidelines for offenses to which this section applies, the United States Sentencing Commission shall consider the following factors:
'(1) The volume of commercial electronic mail involved in the violation.
'(2) The manner in which the violation was perpetrated.
'(3) Whether the violation involved a violation of any other Federal law.
'(4) The extent of economic gain resulting from the violation.
'(5) Any history of prior violations by the violator.
'(6) Such other factors as justice may require.
'Sec. 625. Illicit harvesting of electronic mail addresses
'Whoever knowingly and through the direct or indirect use of a covered computer uses an automated means to obtain electronic mail addresses from an Internet website or proprietary online service operated by another person, without the authorization of that person and uses those addresses in another violation of this chapter, shall be fined under this title or imprisoned not more than one year, or both.
'Sec. 626. Civil enforcement
'(a) CIVIL ACTION BY PROVIDERS- A provider of Internet access service (as defined in section 231(e) of the Communications Act of 1934 (47 U.S.C. 231(e)(4)) who is adversely affected by illicit conduct described in this chapter may, in a civil action, recover any appropriate relief, including actual damages or, at the election of the plaintiff, statutory damages of $500 for each electronic mail message involved in the illicit conduct. A class action may not be brought for a claim under this subsection.
'(b) ADDITIONAL ENFORCEMENT TOOLS FOR THE DEPARTMENT OF JUSTICE-
'(1) CIVIL PENALTY- The Attorney General may, in a civil action against any person who engages in illicit conduct described in this chapter, recover a civil penalty of not to exceed $500 for each electronic mail message involved in the illicit conduct.
'(2) INTERVENTION- The Justice Department may also intervene in any civil action brought under subsection (a) or subsection (d).
'(c) REMEDIES UNDER THE FEDERAL TRADE COMMISSION ACT- The same powers and authorities by which the Federal Trade Commission and the Attorney General enforce compliance, by persons subject to the jurisdiction of the Commission under the Federal Trade Commission Act, with the provisions of such Act and the regulations issued thereunder by the Commission, shall be available to the Commission and the Attorney General, respectively, for use against all persons who engage in illicit conduct described in this chapter with respect to that conduct.
'(d) STATE ATTORNEYS GENERAL- Unless the Attorney General or the Federal Trade Commission has commenced a criminal prosecution or civil proceedings under subsection (b) or (c) with respect to the same conduct, the chief law enforcement officer of a State may, in a civil action, obtain appropriate relief for illicit conduct described in this chapter, including statutory damages of $500 for each electronic mail message sent to a covered computer in that State involved in that conduct.
'(e) EXCLUSIVENESS OF REMEDIES- The civil remedies of this section are the exclusive civil remedies for illicit conduct described in this chapter.
'(f) EXCLUSIVE ORIGINAL JURISDICTION IN FEDERAL COURTS- The United States district courts shall have exclusive original jurisdiction over any civil action commenced under this section.
'(g) DEFINITION- As used in this section, the term 'illicit conduct' means a violation, without regard to the affirmative defense provided in section 622(c)'.
(b) CLERICAL AMENDMENT- The table of chapters at the beginning of part I of title 18, United States Code, is amended by inserting after the item relating to chapter 29 the following new item:
621'.
(c) EFFECTIVE DATE- The amendments made by this title shall take effect 120 days after the date of the enactment of this title.
TITLE III--GENERAL PROVISIONS SEC. 301. REGULATIONS AND REPORT.
(a) REGULATIONS-
(1) IN GENERAL- Not later than 12 months after the date of the enactment of this Act, the Commission shall issue regulations to implement sections 101, 105, and 304. In issuing such regulations, the Commission shall consult with the Federal Communications Commission. Such regulations shall be issued in accordance with section 553 of title 5, United States Code.
(2) LIMITATION- Paragraph (1) may not be construed to authorize the Commission to establish a requirement pursuant to section 101(a)(1)(A) to include any specific words, characters, marks, or labels in a commercial electronic mail message, or to include the identification required by section 101(a)(1)(A) in any particular part of such a mail message (such as the subject line or body).
(b) REPORT REGARDING PREVENTING UNWANTED COMMERCIAL ELECTRONIC MAIL MESSAGES- Within 240 days after the date of the enactment of this Act, the Commission and the Federal Communications Commission shall jointly submit a report to the Congress regarding the need to protect the rights of users of electronic mail to avoid receiving unwanted commercial electronic mail. The report shall--
(1) analyze the effectiveness and efficiency, for preventing unwanted commercial electronic mail messages, of requiring that each such message include specific words, characters, marks, or labels to identify the message as a commercial electronic mail message;
(2) compare and evaluate alternative methods and procedures (individually or in combination with each other and the method described in paragraph (1)) for their effectiveness in protecting such rights and in terms of their cost and other advantages and disadvantages, including the extent to which such methods and procedures can facilitate screening and removal of unwanted commercial electronic mail messages;
(3) compare and evaluate--
(A) alternative methods for persons aggrieved by receipt of unwanted commercial electronic mail messages to report such receipt and submit such messages to the Commission; and
(B) alternative means of notifying the public of the availability of such methods;
(4) evaluate whether there is a need--
(A) for additional Commission authority to further expand or restrict the electronic mail messages which are commercial or unsolicited, for purposes of this Act; or
(B) to further expand or restrict the prohibitions, limitations, definitions, or exceptions of this Act, including prohibiting subject headings in commercial electronic mail messages that are misleading regarding the contents or subject matter of the message; and
(5) propose legislation to effectuate such specific expansions or restrictions, if a need for any expansions or restrictions is determined pursuant to paragraph (4).
SEC. 302. EFFECT ON OTHER LAWS.
(a) FEDERAL LAW-
(1) OBSCENITY AND EXPLOITATION OF CHILDREN- Nothing in this Act may be construed to impair the enforcement of section 223 or 231 of the Communications Act of 1934 (47 U.S.C. 223 or 231, respectively), chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, United States Code, or any other Federal criminal statute.
(2) COMMUNICATIONS ACT OF 1934- Except for the amendments made by section 106, nothing in this Act may be construed to affect the applicability of any provision of title II of the Communications Act of 1934.
(b) STATE LAW- This Act preempts any law of a State, or of a political subdivision of a State, that expressly regulates the form of, required inclusions in, the manner or timing of sending, or the form, manner, or effect of recipient requests regarding receipt of, commercial electronic mail, but such laws preempted shall not include any law regulating falsification in commercial electronic mail of the identity of the sender, of authentication information relating to the sender, of header or routing information relating to such mail, or of subject line information.
(c) NO EFFECT ON POLICIES OF PROVIDERS OF INTERNET ACCESS SERVICE- Nothing in this Act shall be construed to have any effect on the lawfulness or unlawfulness, under any other provision of law, of the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay, handle, receive, or store certain types of electronic mail messages.
SEC. 303. STUDY OF EFFECTS OF ACT.
(a) IN GENERAL- Not later than 24 months after the date of the enactment of this Act, the Commission and the Federal Communications Commission shall jointly submit a report to the Congress that provides a detailed analysis of the effectiveness and enforcement of the provisions, definitions, and exceptions of title I and this title and the need (if any) for the Congress to modify such provisions, definitions, and exceptions.
(b) REQUIRED ANALYSIS- The report required by subsection (a) shall include an analysis of the extent to which technological and marketplace developments, including changes in the nature of the devices through which consumers access their electronic mail messages, may affect the practicality and effectiveness of the provisions of title I and this title.
SEC. 304. DEFINITIONS.
For purposes of this Act:
(1) BUSINESS DAY- The term 'business day' means any day other than a Saturday, Sunday, or legal public holiday.
(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 product or service.
(B) 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, indicate that the primary purpose of the message is the commercial advertisement or promotion of a product or service.
(C) CLARIFICATION REGARDING CERTAIN MESSAGES- Such term does not include any electronic mail message having a primary purpose other than that specified in subparagraph (A), including any electronic mail message the primary purpose of which is to facilitate, complete, confirm, or provide or request information concerning--
(i) a specific commercial transaction between the sender and the recipient that the recipient has previously agreed to enter into with the sender;
(ii) an existing commercial relationship, formed with or without an exchange of consideration, involving the ongoing purchase or use by the recipient of products or services offered by the sender; or
(iii) an existing employment relationship or related benefit plan or service.
(3) COMMISSION- The term 'Commission' means the Federal Trade Commission.
(4) CONSENT-
(A) IN GENERAL- The term 'consent', when used with respect to a commercial electronic mail message, means that--
(i) the recipient has expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or through an affirmative request to receive such message or messages; and
(ii) the recipient has not subsequently made a request, by using a mechanism described in section 101(a)(1)(C), not to receive such message or not to receive messages of a scope within which such message falls.
(B) MESSAGES FROM THIRD PARTIES- Such term includes consent to receipt of a message from a third party pursuant to transfer of the recipient's electronic mail address, but only if the recipient was provided with clear and conspicuous notice that such transfer could occur.
(C) MESSAGES TO PREVIOUS HOLDER OF ELECTRONIC MAIL ADDRESS- In the case of a commercial electronic mail message transmitted or delivered to a recipient at an electronic mail address that has been reassigned to the recipient from a previous user, such recipient shall be considered for purposes of this Act to have consented to receipt of such messages at such address to the same extent as the previous authorized user or users of such address unless the sender of the message has actual knowledge that the address has been so reassigned or of a request under subclause (A)(ii) by the recipient.
(D) TIMING- Consent shall be considered to be given, for purposes of this Act, at the time such consent is received by the sender.
(5) COVERED COMPUTER- The term 'covered computer' means a computer that is used in interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States.
(6) 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.
(7) ELECTRONIC MAIL ADDRESS- The term 'electronic mail address' means a destination, commonly expressed as a string of characters, which includes a unique user name or mailbox (commonly referred to as the 'local part') and may also include a reference to an Internet domain (commonly referred to as the 'domain part'), to which an electronic mail message can be transmitted or delivered.
(8) ELECTRONIC MAIL MESSAGE- The term 'electronic mail message' means a message as transmitted to an electronic mail address.
(9) 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.
(10) INITIATE- The term 'initiate', when used with respect to an electronic mail message, means to originate such message or to procure the origination of such message, but shall not include actions that constitute routine conveyance of such message.
(11) INTERNET- The term 'Internet' has the meaning given that term in the Internet Tax Freedom Act (47 U.S.C. 151 note).
(12) 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)).
(13) 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 transmitted or delivered. If a recipient of a commercial electronic mail message has 1 or more electronic mail addresses in addition to the address to which the message was transmitted 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 transmitted or delivered to that address before it was reassigned.
(14) 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 recipients or provided the recipient addresses.
(15) SENDER- 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, or such person's successor in interest.
(16) UNSOLICITED COMMERCIAL ELECTRONIC MAIL MESSAGE- The term 'unsolicited commercial electronic mail message' means any commercial electronic mail message that is transmitted to a recipient without the recipient's prior consent.
SEC. 305. EFFECTIVE DATE.
Titles I and III of this Act, and the amendments made by such titles, shall take effect 120 days after the date of the enactment of this Act.
END
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