Text: H.R.2515 — 108th Congress (2003-2004)

There is one version of the bill.

Bill text available as:

Shown Here:
Introduced in House (06/18/2003)


Formatting necessary for an accurate reading of this legislative text may be shown by tags (e.g., <DELETED> or <BOLD>) or may be missing from this TXT display. For complete and accurate display of this text, see the PDF or HTML/XML.




[Congressional Bills 108th Congress]
[From the U.S. Government Printing Office]
[H.R. 2515 Introduced in House (IH)]







108th CONGRESS
  1st Session
                                H. R. 2515

           To prevent unsolicited commercial electronic mail.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             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

_______________________________________________________________________

                                 A BILL


 
           To prevent unsolicited commercial electronic mail.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``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:

``30. Electronic mail.......................................     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.
                                 <all>