S 1293 IS

To criminalize the sending of predatory and abusive e-mail.

June 19, 2003

Mr. HATCH (for himself, Mr. LEAHY, Mr. SCHUMER, Mr. GRASSLEY, Mrs. FEINSTEIN, Mr. DEWINE, and Mr. EDWARDS) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

To criminalize the sending of predatory and abusive e-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 `Criminal Spam Act of 2003'.

SEC. 2. PROHIBITION AGAINST PREDATORY AND ABUSIVE COMMERCIAL E-MAIL.

(a) OFFENSE-

(1) IN GENERAL- Chapter 47 of title 18, United States Code, is amended by adding at the end the following new section:

`Sec. 1037. Fraud and related activity in connection with electronic mail

`(a) IN GENERAL- Whoever, in or affecting interstate or foreign commerce, knowingly--

`(1) accesses a protected computer without authorization, and intentionally initiates the transmission of multiple commercial electronic mail messages from or through such computer;

`(2) uses a protected computer to relay or retransmit multiple commercial electronic mail messages, with the intent to deceive or mislead recipients, or any Internet access service, as to the origin of such messages;

`(3) falsifies header information in multiple commercial electronic mail messages and intentionally initiates the transmission of such messages; or

`(4) registers, using information that falsifies the identity of the actual registrant, for 5 or more electronic mail accounts or online user accounts or 2 or more domain names, and intentionally initiates the transmission of multiple commercial electronic mail messages from such accounts or domain names;

or conspires to do so, shall be punished as provided in subsection (b).

`(b) PENALTIES- The punishment for an offense under subsection (a) is--

`(1) a fine under this title, imprisonment for not more than 5 years, or both, if--

`(A) the offense is committed in furtherance of any felony under the laws of the United States or of any State; or

`(B) the defendant has previously been convicted under this section or section 1030, or under the law of any State for conduct involving the transmission of multiple commercial electronic mail messages or unauthorized access to a computer system;

`(2) a fine under this title, imprisonment for not more than 3 years, or both, if--

`(A) the offense is an offense under subsection (a)(1);

`(B) the offense is an offense under subsection (a)(4) and involved 20 or more falsified electronic mail or online user account registrations, or 10 or more falsified domain name registrations;

`(C) the volume of electronic mail messages transmitted in furtherance of the offense exceeded 2,500 during any 24-hour period, 25,000 during any 30-day period, or 250,000 during any 1-year period;

`(D) the offense caused loss to 1 or more persons aggregating $5,000 or more in value during any 1-year period;

`(E) as a result of the offense any individual committing the offense obtained anything of value aggregating $5,000 or more during any 1-year period; or

`(F) the offense was undertaken by the defendant in concert with 3 or more other persons with respect to whom the defendant occupied a position of organizer or leader; and

`(3) a fine under this title or imprisonment for not more than 1 year, or both, in any other case.

`(c) FORFEITURE- A person who is convicted of an offense under this section shall forfeit to the United States such person's interest in--

`(1) any property, real or personal, constituting or traceable to gross profits or other proceeds obtained from such offense; and

`(2) any equipment, software, or other technology used or intended to be used to commit or to promote the commission of such offense.

`(d) CIVIL REMEDIES-

`(1) IN GENERAL- The Attorney General, or any person engaged in the business of providing an Internet access service to the public aggrieved by reason of a violation of subsection (a), may commence a civil action against the violator in any appropriate United States District Court for the relief set forth in paragraphs (2) and (3). No action may be brought under this subsection unless such action is begun within 2 years of the date of the act which is the basis for the action.

`(2) ATTORNEY GENERAL ACTION- In an action by the Attorney General under paragraph (1), the court may award appropriate relief, including temporary, preliminary, or permanent injunctive relief. The court may also assess a civil penalty in an amount not exceeding $25,000 per day of violation, or not less than $2 or more than $8 per electronic mail message initiated in violation of subsection (a), as the court considers just.

`(3) OTHER ACTIONS- In any other action under paragraph (1), the court may award appropriate relief, including temporary, preliminary, or permanent injunctive relief, and damages in an amount equal to the greater of--

`(A) the actual damages suffered by the Internet access service as a result of the violation, and any receipts of the violator that are attributable to the violation and are not taken into account in computing actual damages; or

`(B) statutory damages in the sum of $25,000 per day of violation, or not less than $2 or more than $8 per electronic mail message initiated in violation of subsection (a), as the court considers just.

`(e) DEFINITIONS- In this section:

`(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 (including content on an Internet website or online site operated for a commercial purpose).

`(2) COMPUTER AND PROTECTED COMPUTER- The terms `computer' and `protected computer' have the meaning given those terms in section 1030(e) of this title.

`(3) 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, and that is included in an electronic mail message.

`(4) HEADER INFORMATION- The term `header information' means the source, destination, routing information, or information authenticating the sender, associated with an electronic mail message, including but not limited to the originating domain name, originating electronic mail address, information regarding any part of the route that an electronic mail message travels or appears to travel on the Internet or on an online service, or other authenticating information.

`(5) INITIATE- The term `initiate' means to originate an electronic mail message or to procure the origination of such message, regardless of whether the message reaches its intended recipients, and does not include the actions of an Internet access service used by another person for the transmission of an electronic mail message for which another person has provided and selected the recipient electronic mail addresses.

`(6) 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)).

`(7) LOSS- The term `loss' has the meaning given that term in section 1030(e) of this title.

`(8) MESSAGE- The term `message' means each electronic mail message addressed to a discrete addressee.

`(9) MULTIPLE- The term `multiple' means more than 100 electronic mail messages during a 24-hour period, more than 1,000 electronic mail messages during a 30-day period, or more than 10,000 electronic mail messages during a 1-year period.'.

(2) CONFORMING AMENDMENT- The chapter analysis for chapter 47 of title 18, United States Code, is amended by adding at the end the following:

`Sec.

`1037. Fraud and related activity in connection with electronic mail.'.

(b) UNITED STATES SENTENCING COMMISSION-

(1) DIRECTIVE- Pursuant to its authority under section 994(p) of title 28, United States Code, and in accordance with this section, the United States Sentencing Commission shall review and, as appropriate, amend the sentencing guidelines and policy statements to provide appropriate penalties for violations of section 1037 of title 18, United States Code, as added by this section.

(2) REQUIREMENTS- In carrying out this subsection, the Sentencing Commission shall consider providing sentencing enhancements for those convicted under section 1037 of title 18, United States Code, who--

(A) obtained electronic mail addresses through improper means, including--

(i) harvesting electronic mail addresses of the users of a website, proprietary service, or other online public forum operated by another person, without the authorization of such person; and

(ii) randomly generating electronic mail addresses by computer; or

(B) knew that the commercial electronic mail messages involved in the offense contained or advertised an Internet domain for which the registrant of the domain had provided false registration information.

SEC. 3. REPORT AND SENSE OF CONGRESS REGARDING INTERNATIONAL SPAM.

(a) FINDINGS- Congress finds the following:

(1) The Internet is a global communications medium.

(2) Commercial e-mail sent in violation of this Act can be sent from virtually anywhere in the world.

(3) As domestic deterrence and enforcement against predatory and abusive commercial e-mail improves, there is a risk that predatory and abusive spammers will move their activities abroad and spam into the United States.

(4) As with other forms of cyber-crime, international cooperation of law enforcement officials is essential to combat predatory and abusive spam.

(b) REPORT- The Department of Justice and the Department of State shall report to Congress within 18 months of the date of enactment of this Act regarding the status of their efforts to achieve international cooperation in the investigation and prosecution of spammers who engage in conduct that violates this Act, including the jurisdictions involved and the outcomes of any prosecutions, and any recommendations for addressing predatory and abusive spam sent to the United States from other countries.

(c) SENSE OF CONGRESS- It is the sense of Congress that the Department of Justice and the Department of State, as part of their efforts to improve investigation and prosecution of international cyber-crime, should work through international fora for the cooperation of other countries in investigating and prosecuting predatory and abusive spammers who engage in conduct that violates this Act.

END