HR 1933 IH1S

To reduce unsolicited commercial electronic mail and to protect children from sexually oriented advertisements.

May 1, 2003

Ms. LOFGREN (for herself, Mrs. TAUSCHER, Mr. DEFAZIO, Mr. FRANK of Massachusetts, and Ms. HARMAN) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Energy and Commerce, 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 reduce unsolicited commercial electronic mail and to protect children from sexually oriented advertisements.

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 `Restrict and Eliminate the Delivery of Unsolicited Commercial Electronic Mail or Spam Act of 2003' or the `REDUCE Spam Act of 2003'.

SEC. 2. DEFINITIONS.

In this Act:

(1) COMMERCIAL ELECTRONIC MAIL MESSAGE- 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. 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 sender or a reference or link to an Internet website operated for a commercial purpose. An electronic mail message shall not be considered to be a commercial electronic mail message if the sender has established a personal relationship with the recipient.

(2) COMMISSION- The term `Commission' means the Federal Trade Commission.

(3) ELECTRONIC MAIL ADDRESS-

(A) IN GENERAL- The term `electronic mail address' means a destination (commonly expressed as a string of characters) to which an electronic mail message 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').

(4) FTC ACT- The term `FTC Act' means the Federal Trade Commission Act (15 U.S.C. 41 et seq.).

(5) 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.

(6) 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, either directly or through an agent, but shall not include actions that constitute routine conveyance of such message by a provider of Internet access service. For purposes of this Act, more than 1 person may be considered to have initiated the same commercial electronic mail message.

(7) 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)).

(8) 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)).

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

(A) PREVIOUS BUSINESS TRANSACTION-

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

electronic mail messages from the sender and has not exercised such opportunity.

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

If a sender operates through separate lines of business or divisions and holds itself out to the recipient as that particular line of business or division, then such line of business or division shall be treated as the sender for purposes of this paragraph.

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

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

(12) UNSOLICITED COMMERCIAL ELECTRONIC MAIL MESSAGE- The term `unsolicited commercial electronic mail message' means any commercial electronic mail message that meets both of the following requirements:

(A) The electronic mail message is addressed to a recipient with whom the sender does not have a pre-existing business relationship.

(B) The electronic mail message is not sent at the request of, or with the express consent of, the recipient.

SEC. 3. COMMERCIAL ELECTRONIC MAIL CONTAINING FRAUDULENT HEADER OR ROUTING INFORMATION.

(a) IN GENERAL- Chapter 63 of title 18, United States Code, is amended by adding at the end the following:

`Sec. 1351. Unsolicited commercial electronic mail containing fraudulent header information

`(a) Whoever initiates the transmission of any unsolicited commercial electronic mail message, with knowledge and intent that the message contains or is accompanied by header information that is false or materially misleading, shall be fined or imprisoned for not more than 1 year, or both, under this title.

`(b) For purposes of this section, the terms `unsolicited commercial electronic mail message' and `header information' have the meanings given such terms in section 2 of the REDUCE Spam Act of 2003.'.

(b) CONFORMING AMENDMENT- The chapter analysis at the beginning of chapter 63 of title 18, United States Code, is amended by adding at the end the following:

`1351. Unsolicited commercial electronic mail.'.

SEC. 4. REQUIREMENTS FOR UNSOLICITED COMMERCIAL ELECTRONIC MAIL.

(a) SUBJECT LINE REQUIREMENTS- It shall be unlawful for any person to initiate the transmission of an unsolicited commercial electronic mail message to an electronic mail address within the United States, unless the subject line includes:

(1) COMMERCIAL ADVERTISEMENTS- Except in the case of an unsolicited commercial electronic mail message described in paragraph (2)--

(A) an identification that complies with the standards adopted by the Internet Engineering Task Force for identification of unsolicited commercial electronic mail messages; or

(B) in the case of the absence of such standards, `ADV:' as the first four characters.

(2) ADULT ADVERTISEMENTS- In the case of an unsolicited commercial electronic mail message that contains material that may only be viewed, purchased, rented, leased, or held in possession by an individual 18 years of age and older--

(A) an identification that complies with the standards adopted by the Internet Engineering Task Force for identification of adult-oriented unsolicited commercial electronic mail messages; or

(B) in the case of the absence of such standards, `ADV:ADLT' as the first eight characters.

(b) RETURN ADDRESS REQUIREMENTS-

(1) ESTABLISHMENT- It shall be unlawful for any person to initiate the transmission of an unsolicited commercial electronic mail message to an electronic mail address within the United States, unless the sender establishes a valid sender-operated return electronic mail address where the recipient may notify the sender not to send any further commercial electronic mail messages.

(2) INCLUDED STATEMENT- All unsolicited commercial electronic mail messages subject to this subsection shall include a statement informing the recipient of the valid return electronic mail address referred to in paragraph (1).

(3) PROHIBITION OF SENDING AFTER OBJECTION- Upon notification or confirmation by a recipient of his or her request not to receive any further unsolicited commercial electronic mail messages, it shall be unlawful for a person, or anyone acting on that person's behalf, to send any unsolicited commercial electronic mail message to that recipient. 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.

(c) HEADER AND SUBJECT HEADING REQUIREMENTS-

(1) FALSE OR MISLEADING HEADER INFORMATION- It shall be unlawful for any person to initiate the transmission of an unsolicited commercial electronic mail message that such person knows, or reasonably should know, contains or is accompanied by header information that is false or materially misleading.

(2) DECEPTIVE SUBJECT HEADINGS- It shall be unlawful for any person to initiate the transmission of an unsolicited commercial electronic mail

message with a subject heading that such person knows, or reasonably should know, is likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.

(d) AFFIRMATIVE DEFENSE- A person who violates subsection (a) or (b) shall not be liable if--

(1)(A) the person has established and implemented, with due care, reasonable practices and procedures to effectively prevent such violations; and

(B) the violation occurred despite good faith efforts to maintain compliance with such practices and procedures; or

(2) within the 2-day period ending upon the initiation of the transmission of the unsolicited commercial electronic mail message in violation of subsection (a) or (b), such person initiated the transmission of such message, or one substantially similar to it, to less than 1,000 electronic mail addresses.

SEC. 5. ENFORCEMENT.

(a) IN GENERAL- Section 4 of this Act shall be enforced by the Commission under the FTC Act. For purposes of such Commission enforcement, a violation of this Act shall be treated as a violation of a rule under section 18 (15 U.S.C. 57a) of the FTC Act prohibiting an unfair or deceptive act or practice.

(b) RULEMAKING- Within 30 days after the date of enactment of this Act, the Commission shall institute a rulemaking proceeding concerning enforcement of this Act. The rules adopted by the Commission shall prevent violations of section 4 of 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 FTC Act were incorporated into and made a part of this section, except that the rules shall also include--

(1) procedures to minimize the burden of submitting a complaint to the Commission concerning a violation of section 4 of this Act, including procedures to allow the electronic submission of complaints to the Commission;

(2) civil penalties for violations of section 4 of this Act in an amount sufficient to effectively deter future violations and procedures to collect such penalties if the Commission determines that a violation of section 4 of this Act has occurred;

(3) procedures for the Commission to grant a reward of not less than 20 percent of the total civil penalty imposed to the first person that--

(A) identifies the person in violation of section 4 of this Act; and

(B) supplies information that leads to the successful collection of a civil penalty by the Commission; and

(4) civil penalties for knowingly submitting a false complaint to the Commission.

(c) REGULATIONS- Not later than 180 days after the date of enactment of this Act, the Commission shall conclude the rulemaking proceeding initiated under subsection (b) and shall prescribe implementing regulations.

SEC. 6. PRIVATE RIGHT OF ACTION.

(a) ACTION AUTHORIZED- A recipient of an unsolicited commercial electronic mail message, or a provider of Internet access service, adversely affected by a violation of section 4 may bring a civil action in any district court of the United States with jurisdiction over the defendant to--

(1) enjoin further violation by the defendant; or

(2) recover damages in an amount equal to--

(A) actual monetary loss incurred by the recipient or provider of Internet access service as a result of such violation; or

(B) at the discretion of the court, the amount determined under subsection (b).

(b) STATUTORY DAMAGES- For purposes of subsection (a)(2)(B), the amount determined under this subsection is the amount calculated by multiplying the number of willful, knowing, or negligent violations by an amount, in the discretion of the court, of up to $10. In determining the per-violation penalty under this subsection, the court shall take into account the degree of culpability, any history of prior such conduct, ability to pay, the extent of economic gain resulting from the violation, and such other matters as justice may require.

(c) ATTORNEY FEES- In any action brought pursuant to subsection (a), 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. 7. INTERNET ACCESS SERVICE PROVIDERS.

Nothing in this Act shall be construed--

(1) to enlarge or diminish the application of chapter 121 of title 18, relating to when a provider of Internet access service may disclose customer communications or records;

(2) to require a provider of Internet access service to block, transmit, route, relay, handle, or store certain types of electronic mail messages;

(3) to prevent or limit, in any way, a provider of Internet access service from adopting a policy regarding commercial electronic mail messages, including a policy of declining to transmit certain types of commercial electronic mail messages, or from enforcing such policy through technical means, through contract, or pursuant to any other provision of Federal, State, or local criminal or civil law; or

(4) to render lawful any such policy that is unlawful under any other provision of law.

SEC. 8. 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 4 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, contract, or tort 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. 9. FTC STUDY.

Not later than 24 months after the date of enactment of this Act, the Commission, in consultation with 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 Congress to modify such provisions.

SEC. 10. EFFECTIVE DATE.

The provisions of this Act shall take effect 180 days after the date of the enactment of this Act, except that subsections (b) and (d) of section 5 shall take effect upon the date of the enactment of this Act.

END