HR 2515 IH

To prevent unsolicited commercial electronic mail.

June 18, 2003

Mrs. WILSON of New Mexico (for herself, Mr. GREEN of Texas, Mr. PICKERING, Mr. DINGELL, Mrs. CUBIN, Mr. CONYERS, Mr. SHADEGG, Mr. MARKEY, Mr. PITTS, Mr. BOUCHER, Mr. WALDEN of Oregon, Ms. ESHOO, Mr. TERRY, Mr. STUPAK, Mr. PENCE, Ms. MCCARTHY of Missouri, Mr. FRELINGHUYSEN, Mr. STRICKLAND, Mr. MCINNIS, Mrs. CAPPS, Ms. SCHAKOWSKY, Mr. RODRIGUEZ, Mr. BACA, Mr. FRANK of Massachusetts, Mr. CRAMER, Mr. SKELTON, and Mr. LANGEVIN) 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 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 `Anti-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. Congressional findings and 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. Attorney's fees.

Sec. 105. Enforcement by Federal Trade Commission.

Sec. 106. 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 effectiveness and enforcement.

Sec. 304. Definitions.

Sec. 305. Effective date.

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) Commercial electronic mail can be an important mechanism through which businesses advertise and contact consumers in the online environment.

(4) The receipt of unwanted 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) Unwanted 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 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 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 unwanted commercial electronic mail are often unable to avoid the receipt of such mail through reasonable means, such mail may invade the privacy of recipients and infringe on their privacy rights.

(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 commercial electronic mail;

(2) Consumers and Internet service providers should not be compelled to bear the costs of unwanted commercial electronic mail; and

(3) recipients of commercial electronic mail have a right to decline to receive or have their children receive unwanted commercial electronic mail.

TITLE I--PROTECTIONS AGAINST CERTAIN COMMERCIAL ELECTRONIC MAIL

SEC. 101. RESTRICTIONS ON COMMERCIAL ELECTRONIC MAIL.

(a) REQUIRED INCLUSIONS IN COMMERCIAL ELECTRONIC MAIL-

(1) INCLUSION OF IDENTIFIER, OPT-OUT, E-MAIL ADDRESS, AND PHYSICAL ADDRESS- No person may initiate in or affecting 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 a commercial electronic mail message.

(B) NOTICE OF OPT-OUT- Clear and conspicuous notice of the opportunity under subparagraph (C) to decline to receive future commercial electronic mail messages from the sender or any covered affiliate of the sender.

(C) E-MAIL ADDRESS OR OTHER 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 commercial electronic mail messages from that sender, or any covered affiliate of the sender, at the electronic mail address where the message was received;

(ii) in the case of any such other Internet-based mechanism, when so used, directly submits such a request or clearly and conspicuously provides a manner for submitting such a request; and

(iii) remains capable of receiving such messages or communications for no 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 message complying with the requirements of paragraph (1)(C), the sender of a commercial electronic mail message 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, or a covered affiliate of 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 satisfy the requirements of paragraph (1)(C) if it is unexpectedly and temporarily unable to receive messages due to a problem beyond the control of the sender, if the problem with receiving messages is corrected within a reasonable time period.

(b) PROHIBITION OF TRANSMISSION OF COMMERCIAL ELECTRONIC MAIL AFTER OBJECTION-

(1) IN GENERAL- If a recipient makes a request to a sender, using a mechanism provided pursuant to subsection (a)(1)(C), not to receive some or any commercial electronic mail messages from such sender, or any covered affiliate of the sender, except as provided in paragraph (2)--

(A) the sender, or any covered affiliate of the sender, may not initiate the transmission to the recipient, during the 5-year period beginning the shortest period of time after the receipt of such request as is reasonable to allow effectuation of such request, as the Commission shall determine, of any commercial electronic mail message that falls within the scope of the request, except that during any period beginning upon the effective date under section 305 and ending upon the determination by the Commission regarding such shortest reasonable period, such 5-year period shall begin 10 days after receipt of such request;

(B) no person acting on behalf of the sender or any covered affiliate of the sender may initiate the transmission to the recipient, during the 5-year period beginning the shortest period of time after the receipt by such person of such request as is reasonable to allow effectuation of such request, as the Commission shall determine, of any commercial electronic mail message that falls within the scope of the request, except that during any period beginning upon the effective date under section 305 and ending upon the determination by the Commission regarding such shortest reasonable period, such 5-year period shall begin 10 days after receipt of such request;

(C) no person acting on behalf of the sender, or any covered affiliate 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 any commercial electronic mail message that would violate subparagraph (A) or (B); and

(D) the sender, or any covered affiliate of 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.

(2) SUBSEQUENT CONSENT TO COMMERCIAL ELECTRONIC MAIL MESSAGES- Notwithstanding a recipient's most recent request described in paragraph (1) to a sender, such request shall not be considered to have been made for purposes of such paragraph, with respect to a commercial electronic mail message if--

(A) the message falls within the scope of an express and unambiguous invitation or consent granted by the recipient subsequent to such request made; and

(B) the recipient had clear and conspicuous notice, at the time such invitation or consent was granted, of--

(i) the fact that the recipient was granting the invitation or consent;

(ii) the scope of the invitation or consent, including what types of commercial electronic mail messages would be covered by the invitation or consent and what senders or types of senders, if any, other than the party to whom the invitation or consent was communicated would be covered by the invitation or consent; and

(iii) the mechanism under subsection (a)(1)(C).

(c) PROHIBITION OF COMMERCIAL ELECTRONIC MAIL WITH FALSE OR MISLEADING HEADER INFORMATION OR SUBJECT HEADINGS- No person may initiate in or affecting interstate commerce the transmission, to a covered computer, of any commercial electronic mail message or any commercial transactional electronic mail message, that--

(1) 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 paragraph, 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; or

(2) contains a subject heading that 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.

(d) PROHIBITION OF TRANSMISSION OF CERTAIN COMMERCIAL ELECTRONIC MAIL FROM ILLEGALLY HARVESTED ELECTRONIC MAIL ADDRESSES-

(1) IN GENERAL- No person may initiate in or affecting 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--

(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; 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) PROHIBITION OF DICTIONARY ATTACKS OF COMMERCIAL ELECTRONIC MAIL- No person may--

(1) initiate in or affecting interstate commerce the transmission, to a covered computer, of any commercial electronic mail message or any commercial transactional electronic mail message, if the electronic mail address of the recipient was generated messages by use of automated means based on permutations of combining names, letters, or numbers for the purpose of sending commercial electronic mail; or

(2) assist in initiating, in or affecting interstate commerce, such a message through such generation of electronic mail addresses to which the transmission of the message is initiated.

(f) 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 covered 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 subparagraphs (B) and (C) of subsection (a)(1); and

(iii) instructions on how to access, or a mechanism to access, the sexually oriented material.

(2) PRESCRIPTION OF MARKS AND NOTICES- Not later than 120 days after the date of the enactment of this Act, the Commission shall prescribe 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.

(3) 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.

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(a), subparagraph (A), (B), or (C) of section 101(b)(1), or the regulations prescribed under such section or subparagraph, or

(2) a violation of subsection (c), (d), (e), or (f) 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) DAMAGES- An action to obtain damages in an amount equal to the greater of--

(A) the actual damages 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 REQUIRED INCLUSION AND OPT-OUT PROVISIONS- In the case of a violation described in subsection (a)(1) of this 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 for such a violation 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.

(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) of this paragraph for each violation such that the amount determined under this paragraph is less than $75,000.

(2) VIOLATIONS OF HEADER INFORMATION, SUBJECT HEADING, HARVESTING, DICTIONARY ATTACK, AND SEXUALLY ORIENTED MATERIAL PROVISIONS- In the case of a violation described in subsection (a)(2) of this section, the amount determined under this subsection is $100 for each separate electronic mail address to which the transmission of an electronic mail message is initiated in violation of such subsection.

SEC. 103. ACTIONS BY STATES.

(a) CIVIL ACTION- In any case in which the attorney general of a State has reason to believe that the interests of the residents of that State have been or are being threatened or adversely affected because any person has engaged or is engaging in--

(1) a pattern or practice of initiating transmissions to residents of that State that violates subsection (a) or (b) of section 101 or the regulations prescribed under such section, or

(2) a violation of subsection (c), (d), (e), or (f) of section 101 or the regulations prescribed under such section,

the State, as parens patriae, may bring either or both of the civil actions under subsection (b) on behalf of its residents.

(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) DAMAGES- An action to obtain damages on behalf of residents of the State, in an amount equal to the greater of--

(A) the actual damages suffered by such residents; or

(B) the amount determined under subsection (c).

(c) STATUTORY DAMAGES-

(1) PER VIOLATION- Except as provided in paragraph (2), for purposes of subsection (a)(2)(B), the amount determined under this subsection is $500 for each separate electronic mail address to which the transmission of an electronic mail message is initiated in violation of section 101 or the regulations prescribed under such section.

(2) TREBLE DAMAGES FOR INTENTIONAL VIOLATIONS- 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) if the court determines that the defendant willfully or knowingly violated section 101 or the regulations prescribed under such section.

(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 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 against the defendant shall be granted without bond.

(e) RIGHTS OF COMMISSION-

(1) NOTICE OF STATE ACTION AND 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. Upon receiving a notice regarding a civil action, the Commission shall have the right to intervene in the action and, upon so intervening, to be heard on all matters arising in the action, and to file petitions for appeal.

(2) LIMITATION IN CASES OF ACTION BY COMMISSION- Whenever a civil action has been instituted by or on behalf of the Commission for a violation of section 101 or the regulations prescribed under such section, no State may, during the pendency of such action instituted by or on behalf of the Commission, institute a civil action under this section against any defendant named in the complaint in such action for any such violation alleged in such complaint.

(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 the district in which the defendant is found, is an inhabitant, or transacts business or wherever venue is proper under section 1391 of title 28, United States Code. Process in such an action may be served in any district in which the defendant is an inhabitant or in which the defendant may be found.

(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 from exercising the powers conferred on the attorney general 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.

(h) ACTIONS BY OTHER STATE OFFICIALS-

(1) VIOLATIONS OF STATE LAW- Nothing in this section shall prohibit an authorized State official from proceeding in State court on the basis of an alleged violation of any civil or criminal statute of such State.

(2) AUTHORIZED STATE OFFICERS- In addition to actions brought by an attorney general of a State under subsection (a) of this section, such an action may be brought by officers of such State who are authorized by the State to bring actions in such State on behalf of its residents.

SEC. 104. 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. 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 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) IN GENERAL- The term `commercial electronic mail message' means any electronic mail message that contains a commercial advertisement or promotion of a product or service.

`(B) REFERENCE TO COMPANY- The inclusion of a reference to a commercial entity in an electronic mail message does not, by itself, constitute a 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) 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.

`(4) PROTECTED COMPUTER- The term `protected computer' means a computer described in section 1030(e)(2)(B).

`(5) STATE- The term `State' includes the District of Columbia, Puerto Rico, and any other territory or possession of the United States.

`Sec. 622. Falsifying sender's identity in commercial electronic mail

`(a) IN GENERAL- Whoever intentionally sends to one or more covered computers, during any 30-day period, 10 or more commercial electronic mail messages that the sender knows falsify 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.

`Sec. 623. Failure to place warning labels on commercial electronic mail containing sexually oriented materials

`(a) IN GENERAL- Whoever knowingly sends a commercial electronic mail message that includes sexually oriented material to a covered computer and knowingly--

`(1) fails to include in subject heading for the electronic mail message the marks or notices prescribed by the Federal Trade Commission under section 101(f)(2) of the Anti-Spam Act of 2003, or

`(2) fails to provide that the matter in that message that is initially viewable to the recipient, when that message is opened by any recipient and absent any further actions by the recipient, includes only--

`(A) to the extent required or authorized pursuant to such section 101(f)(2), any such marks or notices,

`(B) the information required to be included in the message pursuant to subparagraphs (B) and (C) of section 101(a)(1) of the Anti-Spam Act of 2003, and

(C) instructions on how to access, or a mechanism to access, the sexually oriented material,

shall be punished as provided in section 624 of this chapter.

`(b) 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 a violation of 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 violation.

`(b) ADDITIONAL ENFORCEMENT TOOLS FOR THE DEPARTMENT OF JUSTICE-

`(1) CIVIL PENALTY- The Attorney General may, in a civil action against any person for a violation of this chapter, recover a civil penalty of not to exceed $500 for each electronic mail message involved in the violation.

`(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 violate this chapter with respect to such violations.

`(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 a violation of this chapter, including statutory damages of $500 for each electronic mail message sent to a covered computer in that State involved in that violation.

`(e) EXCLUSIVENESS OF REMEDIES- The civil remedies of this section are the exclusive civil remedies for violations of 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.'.

(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 any regulations necessary to implement sections 101, 105, and 304. In issuing any such regulations, the Commission shall consult with the Federal Communications Commission. Any 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 UNSOLICITED COMMERCIAL ELECTRONIC MAIL MESSAGES- Within 240 days after the date of the enactment of this Act, the Commission, after consultation with the Federal Communications Commission, shall submit a report to the Congress regarding the need to protect the rights of users of electronic mail to avoid receiving unsolicited commercial electronic mail. The report shall--

(1) analyze the effectiveness and efficiency, for preventing unsolicited commercial electronic mail messages, of requiring that each such message include specific words, characters, marks, or labels to identify the message as such a 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 unsolicited commercial electronic mail message;

(3) compare and evaluate--

(A) alternative methods for persons aggrieved by receipt of unsolicited 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, for purposes of this Act; or

(B) to further expand or restrict the prohibitions, limitations, definitions, or exceptions of this Act; 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- 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 EFFECTIVENESS AND ENFORCEMENT.

(a) IN GENERAL- Not later than 24 months after the date of the enactment of this Act, the Commission, after consultation with the Federal Communications Commission, shall submit a report to the Congress that provides a detailed analysis of the effectiveness and enforcement of the provisions, definitions, and exceptions of this Act 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 this Act.

SEC. 304. DEFINITIONS.

For purposes of this Act:

(1) AFFILIATE- The term `affiliate' means, with respect to an entity, any other entity that--

(A) controls, is controlled by, or is under common control with such entity; and

(B) provides marketing information to, receives marketing information from, or shares marketing information with such entity.

(2) BUSINESS DAY- The term `business day' means any day other than a Saturday, Sunday, or legal public holiday.

(3) COMMERCIAL ELECTRONIC MAIL MESSAGE-

(A) IN GENERAL- Except as provided in subparagraph (B), the term `commercial electronic mail message' means any electronic mail message that contains a commercial advertisement or promotion of a product or service, except that such term does not include any commercial transactional electronic mail message.

(B) REFERENCE TO COMPANY- The inclusion of a reference to a commercial entity in an electronic mail message does not, by itself, constitute a commercial advertisement or promotion of a product or service.

(4) COMMERCIAL TRANSACTIONAL ELECTRONIC MAIL MESSAGE- The term `commercial transactional electronic mail message' means any electronic mail message the primary purpose of which is--

(A) to facilitate, complete, or confirm a specific commercial transaction, made with or without exchange of consideration, between the sender and the recipient that the recipient has previously agreed to enter into with the sender; or

(B) to provide--

(i) a billing statement or information;

(ii) debt collection information;

(iii) product recall information;

(iv) warranty information;

(v) safety or security information;

(vi) an actual update or modification to a product or service; or

(vii) information requested by the recipient,

relating to such specific commercial transaction or the product or service involved in the transaction.

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

(6) COVERED AFFILIATE- The term `covered affiliate' means, with respect to a commercial electronic mail message, any affiliate of the sender of such message to which such sender has previously sold, leased, exchanged, or otherwise transferred or released the electronic mail address of the recipient.

(7) COVERED COMPUTER- The term `covered computer' means a computer that is used in or affects 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 of the United States.

(8) 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.

(9) 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, such term 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').

(10) ELECTRONIC MAIL MESSAGE- The term `electronic mail message' means a message as transmitted to an electronic mail address.

(11) 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.

(12) 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.

(13) INITIATOR- The term `initiator', when used with respect to an electronic mail message, means the person who initiates such message. Such term does not include a provider of an Internet access service, or any other person, whose role with respect to the message is limited to the transmission, routing, relaying, handling, or storing, through an automatic technical process, of a message originated by others.

(14) 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)).

(15) 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)).

(16) RECIPIENT- The term `recipient', when used with respect to an electronic mail message, means the addressee of such message. If an addressee of an electronic mail message has one or more electronic mail addresses in addition to the address to which the message was addressed, the addressee shall be treated as a separate recipient with respect to each such address.

(17) SENDER- The term `sender', when used with respect to an electronic mail message, means--

(A) the person--

(i) who is the initiator of such message; and

(ii) whose product, service, or Internet web site is advertised or promoted by the message;

(B) such person's successor in interest; or

(C) any entity created by or on behalf of such person with the intent of avoiding the requirements or prohibitions in section 101.

SEC. 305. EFFECTIVE DATE.

(a) IN GENERAL- 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.

(b) EFFECT OF REGULATORY AUTHORITY- The authority in this Act or the amendments made by this Act to issue regulations may not be construed to affect the effectiveness of any provision of this Act or the amendments made by this Act under subsection (a) of this section or section 201(c), except to the extent that a determination of the Commission is specifically required by such provision.

END