HR 718 IH

To protect individuals, families, and Internet service providers from unsolicited and unwanted electronic mail.

February 14, 2001

Mrs. WILSON (for herself, Mr. GREEN of Texas, Mr. GARY MILLER of California, Mr. GOODLATTE, Mr. PICKERING, Mr. DEAL of Georgia, Mr. LARGENT, Mr. FOSSELLA, Mr. WALDEN of Oregon, Mr. BRYANT, Mr. TAUZIN, Mr. GILLMOR, Mr. FRELINGHUYSEN, Ms. CARSON of Indiana, Mr. KILDEE, Mr. ENGLISH, Mr. LEVIN, Mr. SIMMONS, Ms. ESHOO, Mr. HINCHEY, Mr. TERRY, Mr. RUSH, Mr. BONIOR, Mr. HORN, Mrs. EMERSON, Mr. ENGEL, Mrs. JO ANN DAVIS of Virginia, Ms. DEGETTE, Ms. HARMAN, Mr. MOORE, Mr. SHIMKUS, Mr. BARRETT, Mr. BOUCHER, Mr. GREENWOOD, Ms. MCCARTHY of Missouri, Mr. CRAMER, Mr. SESSIONS, Mr. GORDON, Mr. SHOWS, Mr. FRANK, Ms. MCKINNEY, Mr. HOLT, Mr. SANDLIN, Mr. SAWYER, Mr. STRICKLAND, Mr. WELLER, Mr. KING, Mr. BAKER, Ms. HART, Mr. PITTS, Mr. UDALL of New Mexico, Mr. LUTHER, Mr. REYES, Ms. PELOSI, Mr. FROST, Mr. EHRLICH, Mr. BURR of North Carolina, Mr. ADERHOLT, Mr. WOLF, Mr. ISAKSON, Mrs. CUBIN, Mr. BARTON of Texas, Mr. STEARNS, Mr. OXLEY, Ms. DUNN, Mr. HASTINGS of Washington, Mr. STUPAK, and Mr. BLUNT) 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

To protect individuals, families, and Internet service providers from unsolicited and unwanted 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.

This Act may be cited as the `Unsolicited Commercial Electronic Mail Act of 2001'.

SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.

(a) FINDINGS- The Congress finds the following:

(1) There is a right of free speech on the Internet.

(2) The Internet has increasingly become a critical mode of global communication and now presents unprecedented opportunities for the development and growth of global commerce and an integrated worldwide economy. In order for global commerce on the Internet to reach its full potential, individuals and entities using the Internet and other online services should be prevented from engaging in activities that prevent other users and Internet service providers from having a reasonably predictable, efficient, and economical online experience.

(3) Unsolicited commercial electronic mail can be an important mechanism through which businesses advertise and attract customers in the online environment.

(4) 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.

(5) Unsolicited commercial electronic mail may impose significant monetary costs on Internet access services, businesses, and educational and nonprofit institutions that carry and receive such mail, as there is a finite volume of mail that such providers, businesses, and institutions can handle without further investment. The sending of such mail is increasingly and negatively affecting the quality of service provided to customers of Internet access service, and shifting costs from the sender of the advertisement to the Internet access service.

(6) While some senders of unsolicited commercial electronic mail messages provide simple and reliable ways for recipients to reject (or `opt-out' of) receipt of unsolicited commercial electronic mail from such senders in the future, other senders provide no such `opt-out' mechanism, or refuse to honor the requests of recipients not to receive electronic mail from such senders in the future, or both.

(7) An increasing number of senders of unsolicited commercial electronic mail purposefully disguise the source of such mail so as to prevent recipients from responding to such mail quickly and easily.

(8) Many senders of unsolicited commercial electronic mail collect or harvest electronic mail addresses of potential recipients without the knowledge of those recipients and in violation of the rules or terms of service of the database from which such addresses are collected.

(9) Because recipients of unsolicited commercial electronic mail are unable to avoid the receipt of such mail through reasonable means, such mail may invade the privacy of recipients.

(10) In legislating against certain abuses on the Internet, Congress should be very careful to avoid infringing in any way upon constitutionally protected rights, including the rights of assembly, free speech, and privacy.

(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 unsolicited commercial electronic mail;

(2) Internet service providers should not be compelled to bear the costs of unsolicited commercial electronic mail without compensation from the sender; and

(3) recipients of unsolicited commercial electronic mail have a right to decline to receive or have

their children receive unsolicited commercial electronic mail.

SEC. 3. DEFINITIONS.

In this Act:

(1) CHILDREN- The term `children' includes natural children, stepchildren, adopted children, and children who are wards of or in custody of the parent, who have not attained the age of 18 and who reside with the parent or are under his or her care, custody, or supervision.

(2) COMMERCIAL ELECTRONIC MAIL MESSAGE- The term `commercial electronic mail message' means any electronic mail message that primarily advertises or promotes the commercial availability of a product or service for profit or invites the recipient to view content on an Internet web site that is operated for a commercial purpose. An electronic mail message shall not be considered to be a commercial electronic mail message solely because such message includes a reference to a commercial entity that serves to identify the initiator.

(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-

(A) IN GENERAL- The term `electronic mail address' means a destination (commonly expressed as a string of characters) to which electronic mail can be sent or delivered.

(B) INCLUSION- In the case of the Internet, the term `electronic mail address' may include an electronic mail address consisting of a user name or mailbox (commonly referred to as the `local part') and a reference to an Internet domain (commonly referred to as the `domain part').

(6) INTERNET- The term `Internet' has the meaning given that term in section 231(e)(3) of the Communications Act of 1934 (47 U.S.C. 231(e)(3)).

(7) 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)).

(8) INITIATE- The term `initiate', when used with respect to a commercial electronic mail message, means to originate such message or to procure the transmission of such message.

(9) INITIATOR- The term `initiator', when used with respect to a commercial electronic mail message, means the person who initiates such message. Such term does not include a provider of an Internet access service whose role with respect to the message is limited to handling, transmitting, retransmitting, or relaying the message.

(10) PRE-EXISTING BUSINESS RELATIONSHIP- The term `pre-existing business relationship' means, when used with respect to the initiator and recipient of a commercial electronic mail message, that either of the following circumstances exist:

(A) PREVIOUS BUSINESS TRANSACTION-

(i) Within the 5-year period ending upon receipt of such message, there has been a business transaction between the initiator and the recipient (including a transaction involving the provision, free of charge, of information requested by the recipient, of goods, or of services); and

(ii) the recipient was, at the time of such transaction or thereafter, provided a clear and conspicuous notice of an opportunity not to receive further messages from the initiator and has not exercised such opportunity.

(B) OPT IN- The recipient has given the initiator permission to initiate commercial electronic mail messages to the electronic mail address of the recipient and has not subsequently revoked such permission.

(11) RECIPIENT- The term `recipient', when used with respect to a commercial electronic mail message, means the addressee of such message.

(12) UNSOLICITED COMMERCIAL ELECTRONIC MAIL MESSAGE- The term `unsolicited commercial electronic mail message' means any commercial electronic mail message that is sent by the initiator to a recipient with whom the initiator does not have a pre-existing business relationship.

SEC. 4. CRIMINAL PENALTY FOR UNSOLICITED COMMERCIAL ELECTRONIC MAIL CONTAINING FRAUDULENT ROUTING INFORMATION.

Section 1030 of title 18, United States Code, is amended--

(1) in subsection (a)(5)--

(A) in subparagraph (B), by striking `or' at the end;

(B) in subparagraph (C), by inserting `or' after the semicolon at the end; and

(C) by adding at the end the following new subparagraph:

`(D) intentionally initiates the transmission of any unsolicited commercial electronic mail message to a protected computer in the United States with knowledge that any domain name, header information, date or time stamp, originating electronic mail address, or other information identifying the initiator or the routing of such message, that is contained in or accompanies such message, is false or inaccurate;';

(2) in subsection (c)(2)(A)--

(A) by inserting `(i)' after `in the case of'; and

(B) by inserting before `; and' the following: `, or (ii) an offense under subsection (a)(5)(D) of this section'; and

(3) in subsection (e)--

(A) by striking `and' at the end of paragraph (8);

(B) by striking the period at the end of paragraph (9) and inserting a semicolon; and

(C) by adding at the end the following new paragraph:

`(10) the terms `initiate', `initiator', `unsolicited commercial electronic mail message', and `domain name' have the meanings given such terms in section 3 of the Unsolicited Commercial Electronic Mail Act of 2001.'.

SEC. 5. OTHER PROTECTIONS AGAINST UNSOLICITED COMMERCIAL ELECTRONIC MAIL.

(a) REQUIREMENTS FOR TRANSMISSION OF MESSAGES-

(1) INCLUSION OF RETURN ADDRESS IN COMMERCIAL ELECTRONIC MAIL- It shall be unlawful for any person to initiate the transmission of a commercial electronic mail message to any person within the United States unless such message contains a valid electronic mail address, conspicuously displayed, to which a recipient may send a reply to the initiator to indicate a desire not to receive any further messages.

(2) PROHIBITION OF TRANSMISSION OF UNSOLICITED COMMERCIAL ELECTRONIC MAIL AFTER OBJECTION- If a recipient makes a request to a person to be removed from all distribution lists under the control of such person, it shall be unlawful for such person to initiate the transmission of an unsolicited commercial electronic mail message to such a recipient within the United States after the expiration, after receipt of such request, of a reasonable period of time for removal from such lists. Such a request shall be deemed to terminate a pre-existing business relationship for purposes of determining whether subsequent messages are unsolicited commercial electronic mail messages.

(3) INCLUSION OF IDENTIFIER AND OPT-OUT IN UNSOLICITED COMMERCIAL ELECTRONIC MAIL- It shall be unlawful for any person to initiate the transmission of any unsolicited commercial electronic mail message to any person within the United States unless the message provides, in a manner that is clear and conspicuous to the recipient--

(A) identification that the message is an unsolicited commercial electronic mail message; and

(B) notice of the opportunity under paragraph (2) not to receive further unsolicited commercial electronic mail messages from the initiator.

(b) ENFORCEMENT OF POLICIES BY INTERNET ACCESS SERVICE PROVIDERS-

(1) PROHIBITION OF TRANSMISSIONS IN VIOLATION OF POSTED POLICY- It shall be unlawful for any person to initiate the transmission of an unsolicited commercial electronic mail message to any person within the United States in violation of a policy governing the use of the equipment of a provider of Internet access service for transmission of unsolicited commercial electronic mail messages that meets the requirements of paragraph (2).

(2) REQUIREMENTS FOR ENFORCEABILITY- The requirements under this paragraph for a policy regarding unsolicited commercial electronic mail messages are as follows:

(A) CLARITY- The policy shall explicitly provide that compliance with a rule or set of rules is a condition of use of the equipment of a provider of Internet access service to deliver commercial electronic mail messages.

(B) PUBLICLY AVAILABILITY- The policy shall be publicly available by at least one of the following methods:

(i) WEB POSTING- The policy is clearly and conspicuously posted on a World Wide Web site of the provider of Internet access service, which has an Internet domain name that is identical to the Internet domain name of the electronic mail address to which the rule or set of rules applies.

(ii) NOTIFICATION IN COMPLIANCE WITH TECHNOLOGICAL STANDARD- Such policy is made publicly available by the provider of Internet access service in accordance with a technological standard adopted by an appropriate Internet standards setting body (such as the Internet Engineering Task Force) and recognized by the Commission by rule as a fair standard.

(C) INTERNAL OPT-OUT LIST- If the policy of a provider of Internet access service requires compensation specifically for the transmission of unsolicited commercial electronic mail messages into its system, the provider shall provide an option to its subscribers not to receive any unsolicited commercial electronic mail messages, except that such option is not required for any subscriber who has agreed to receive unsolicited commercial electronic mail messages in exchange for discounted or free Internet access service.

(3) OTHER ENFORCEMENT- Nothing in this Act shall be construed to prevent or limit, in any way, a provider of Internet access service from enforcing, pursuant to any remedy available under any other provision of Federal, State, or local criminal or civil law, a policy regarding unsolicited commercial electronic mail messages.

(c) PROTECTION OF INTERNET ACCESS SERVICE PROVIDERS-

(1) GOOD FAITH EFFORTS TO BLOCK TRANSMISSIONS- A provider of Internet access service shall not be liable, under any Federal, State, or local civil or criminal law, for any action it takes in good faith to block the transmission or receipt of unsolicited commercial electronic mail messages.

(2) INNOCENT RETRANSMISSION- A provider of Internet access service the facilities of which are used only to handle, transmit, retransmit, or relay an unsolicited commercial electronic mail message transmitted in violation of subsection (a) shall not be liable for any harm resulting from the transmission or receipt of such message unless such provider permits the transmission or retransmission of

such message with actual knowledge that the transmission is prohibited by subsection (a) or subsection (b)(1).

SEC. 6. ENFORCEMENT.

(a) GOVERNMENTAL ORDER-

(1) NOTIFICATION OF ALLEGED VIOLATION- The Commission shall send a notification of alleged violation to any person who violates section 5 if--

(A) a recipient or a provider of Internet access service notifies the Commission, in such form and manner as the Commission shall determine, that a transmission has been received in violation of section 5; or

(B) the Commission has other reason to believe that such person has violated or is violating section 5.

(2) TERMS OF NOTIFICATION- A notification of alleged violation shall--

(A) identify the violation for which the notification was issued;

(B) direct the initiator to refrain from further violations of section 5;

(C) expressly prohibit the initiator (and the agents or assigns of the initiator) from further initiating unsolicited commercial electronic mail messages in violation of section 5 to the designated recipients or providers of Internet access service, effective on the third day (excluding Saturdays, Sundays, and legal public holidays) after receipt of the notification; and

(D) direct the initiator (and the agents or assigns of the initiator) to delete immediately the names and electronic mail addresses of the designated recipients or providers from all mailing lists owned or controlled by the initiator (or such agents or assigns) and prohibit the initiator (and such agents or assigns) from the sale, lease, exchange, license, or other transaction involving mailing lists bearing the names and electronic mail addresses of the designated recipients or providers.

(3) COVERAGE OF MINOR CHILDREN BY NOTIFICATION- Upon request of a recipient of an electronic mail message transmitted in violation of section 5, the Commission shall include in the notification of alleged violation the names and electronic mail addresses of any child of the recipient.

(4) ENFORCEMENT OF NOTIFICATION TERMS-

(A) COMPLAINT- If the Commission believes that the initiator (or the agents or assigns of the initiator) has failed to comply with the terms of a notification issued under this subsection, the Commission shall serve upon the initiator (or such agents or assigns), by registered or certified mail, a complaint stating the reasons for its belief and request that any response thereto be filed in writing with the Commission within 15 days after the date of such service.

(B) HEARING AND ORDER- If the Commission, after an opportunity for a hearing on the record, determines that the person upon whom the complaint was served violated the terms of the notification, the Commission shall issue an order directing that person to comply with the terms of the notification.

(C) PRESUMPTION- For purposes of a determination under subparagraph (B), receipt of any transmission in violation of a notification of alleged violation 30 days (excluding Saturdays, Sundays, and legal public holidays) or more after the effective date of the notification shall create a rebuttable presumption that such transmission was sent after such effective date.

(5) ENFORCEMENT BY COURT ORDER- Any district court of the United States within the jurisdiction of which any transmission is sent or received in violation of a notification given under this subsection shall have jurisdiction, upon application by the Attorney General, to issue an order commanding compliance with such notification. Failure to observe such order may be punishable by the court as contempt thereof.

(b) PRIVATE RIGHT OF ACTION-

(1) ACTIONS AUTHORIZED- A recipient or a provider of Internet access service may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State, or may bring in an appropriate Federal court if such laws or rules do not so permit, either or both of the following actions:

(A) An action based on a violation of section 5 to enjoin such violation.

(B) An action to recover for actual monetary loss from such a violation in an amount equal to the greatest of--

(i) the amount of such actual monetary loss; or

(ii) $500 for each such violation, not to exceed a total of $50,000.

(2) ADDITIONAL REMEDIES- If the court finds that the defendant willfully, knowingly, or repeatedly violated section 5, the court may, in its discretion, increase the amount of the award to an amount equal to not more than three times the amount available under paragraph (1).

(3) ATTORNEY FEES- In any such action, 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.

(4) PROTECTION OF TRADE SECRETS- At the request of any party to an action brought pursuant to this subsection or any other participant in such an action, the court may, in its discretion, issue protective orders and conduct legal proceedings in such a way as to protect the secrecy and security of the computer, computer network, computer data, computer program, and computer software involved in order to prevent possible recurrence of the same or a similar act by another person and to protect any trade secrets of any such party or participant.

SEC. 7. EFFECT ON OTHER LAWS.

(a) FEDERAL LAW- Nothing in this Act shall be construed to impair the enforcement of section 223 or 231 of the Communications Act of 1934, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, United States Code, or any other Federal criminal statute.

(b) STATE LAW- No State or local government may impose any civil liability for commercial activities or actions in interstate or foreign commerce in connection with an activity or action described in section 5 of this Act that is inconsistent with the treatment of such activities or actions under this Act, except that this Act shall not preempt any civil remedy under State trespass or contract law or under any provision of Federal, State, or local criminal law or any civil remedy available under such law that relates to acts of computer fraud or abuse arising from the unauthorized transmission of unsolicited commercial electronic mail messages.

SEC. 8. STUDY OF EFFECTS OF UNSOLICITED COMMERCIAL ELECTRONIC MAIL.

Not later than 18 months after the date of the enactment of this Act, the Federal Trade Commission 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.

SEC. 9. 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. 10. EFFECTIVE DATE.

The provisions of this Act shall take effect 90 days after the date of the enactment of this Act.

END

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