[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 877 Enrolled Bill (ENR)]
S.877
One Hundred Eighth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Tuesday,
the seventh day of January, two thousand and three
An Act
To regulate interstate commerce by imposing limitations and penalties on
the transmission of unsolicited commercial electronic mail via the
Internet.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

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This Act may be cited as the ``Controlling the Assault of Non-
Solicited Pornography and Marketing Act of 2003'', or the ``CAN-SPAM
Act of 2003''.

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(a) Findings.--The Congress finds the following:
(1) Electronic mail has become an extremely important and
popular means of communication, relied on by millions of Americans
on a daily basis for personal and commercial purposes. Its low cost
and global reach make it extremely convenient and efficient, and
offer unique opportunities for the development and growth of
frictionless commerce.
(2) The convenience and efficiency of electronic mail are
threatened by the extremely rapid growth in the volume of
unsolicited commercial electronic mail. Unsolicited commercial
electronic mail is currently estimated to account for over half of
all electronic mail traffic, up from an estimated 7 percent in
2001, and the volume continues to rise. Most of these messages are
fraudulent or deceptive in one or more respects.
(3) The receipt of unsolicited commercial electronic mail may
result in costs to recipients who cannot refuse to accept such mail
and who incur costs for the storage of such mail, or for the time
spent accessing, reviewing, and discarding such mail, or for both.
(4) The receipt of a large number of unwanted messages also
decreases the convenience of electronic mail and creates a risk
that wanted electronic mail messages, both commercial and
noncommercial, will be lost, overlooked, or discarded amidst the
larger volume of unwanted messages, thus reducing the reliability
and usefulness of electronic mail to the recipient.
(5) Some commercial electronic mail contains material that many
recipients may consider vulgar or pornographic in nature.
(6) The growth in unsolicited commercial electronic mail
imposes significant monetary costs on providers of 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 in infrastructure.
(7) Many senders of unsolicited commercial electronic mail
purposefully disguise the source of such mail.
(8) Many senders of unsolicited commercial electronic mail
purposefully include misleading information in the messages'
subject lines in order to induce the recipients to view the
messages.
(9) While some senders of commercial electronic mail messages
provide simple and reliable ways for recipients to reject (or
``opt-out'' of) receipt of 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.
(10) Many senders of bulk unsolicited commercial electronic
mail use computer programs to gather large numbers of electronic
mail addresses on an automated basis from Internet websites or
online services where users must post their addresses in order to
make full use of the website or service.
(11) Many States have enacted legislation intended to regulate
or reduce unsolicited commercial electronic mail, but these
statutes impose different standards and requirements. As a result,
they do not appear to have been successful in addressing the
problems associated with unsolicited commercial electronic mail, in
part because, since an electronic mail address does not specify a
geographic location, it can be extremely difficult for law-abiding
businesses to know with which of these disparate statutes they are
required to comply.
(12) The problems associated with the rapid growth and abuse of
unsolicited commercial electronic mail cannot be solved by Federal
legislation alone. The development and adoption of technological
approaches and the pursuit of cooperative efforts with other
countries will be necessary as well.
(b) Congressional Determination of Public Policy.--On the basis of
the findings in subsection (a), the Congress determines that--
(1) there is a substantial government interest in regulation of
commercial electronic mail on a nationwide basis;
(2) senders of commercial electronic mail should not mislead
recipients as to the source or content of such mail; and
(3) recipients of commercial electronic mail have a right to
decline to receive additional commercial electronic mail from the
same source.

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In this Act:
(1) Affirmative consent.--The term ``affirmative consent'',
when used with respect to a commercial electronic mail message,
means that--
(A) the recipient expressly consented to receive the
message, either in response to a clear and conspicuous request
for such consent or at the recipient's own initiative; and
(B) if the message is from a party other than the party to
which the recipient communicated such consent, the recipient
was given clear and conspicuous notice at the time the consent
was communicated that the recipient's electronic mail address
could be transferred to such other party for the purpose of
initiating commercial electronic mail messages.
(2) Commercial electronic mail message.--
(A) In general.--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 operated for a commercial purpose).
(B) Transactional or relationship messages.--The term
``commercial electronic mail message'' does not include a
transactional or relationship message.
(C) Regulations regarding primary purpose.--Not later than
12 months after the date of the enactment of this Act, the
Commission shall issue regulations pursuant to section 13
defining the relevant criteria to facilitate the determination
of the primary purpose of an electronic mail message.
(D) Reference to company or website.--The inclusion of a
reference to a commercial entity or a link to the website of a
commercial entity in an electronic mail message does not, by
itself, cause such message to be treated as a commercial
electronic mail message for purposes of this Act if the
contents or circumstances of the message indicate a primary
purpose other than commercial advertisement or promotion of a
commercial product or service.
(3) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(4) Domain name.--The term ``domain name'' means any
alphanumeric designation which is registered with or assigned by
any domain name registrar, domain name registry, or other domain
name registration authority as part of an electronic address on the
Internet.
(5) Electronic mail address.--The term ``electronic mail
address'' means a destination, commonly expressed as a string of
characters, consisting of a unique 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''), whether or
not displayed, to which an electronic mail message can be sent or
delivered.
(6) Electronic mail message.--The term ``electronic mail
message'' means a message sent to a unique electronic mail address.
(7) FTC act.--The term ``FTC Act'' means the Federal Trade
Commission Act (15 U.S.C. 41 et seq.).
(8) 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, and any other information that
appears in the line identifying, or purporting to identify, a
person initiating the message.
(9) Initiate.--The term ``initiate'', when used with respect to
a commercial electronic mail message, means to originate or
transmit such message or to procure the origination or transmission
of such message, but shall not include actions that constitute
routine conveyance of such message. For purposes of this paragraph,
more than one person may be considered to have initiated a message.
(10) Internet.--The term ``Internet'' has the meaning given
that term in the Internet Tax Freedom Act (47 U.S.C. 151 nt).
(11) 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)).
(12) Procure.--The term ``procure'', when used with respect to
the initiation of a commercial electronic mail message, means
intentionally to pay or provide other consideration to, or induce,
another person to initiate such a message on one's behalf.
(13) Protected computer.--The term ``protected computer'' has
the meaning given that term in section 1030(e)(2)(B) of title 18,
United States Code.
(14) Recipient.--The term ``recipient'', when used with respect
to a commercial electronic mail message, means an authorized user
of the electronic mail address to which the message was sent or
delivered. If a recipient of a commercial electronic mail message
has one or more electronic mail addresses in addition to the
address to which the message was sent or delivered, the recipient
shall be treated as a separate recipient with respect to each such
address. If an electronic mail address is reassigned to a new user,
the new user shall not be treated as a recipient of any commercial
electronic mail message sent or delivered to that address before it
was reassigned.
(15) Routine conveyance.--The term ``routine conveyance'' means
the transmission, routing, relaying, handling, or storing, through
an automatic technical process, of an electronic mail message for
which another person has identified the recipients or provided the
recipient addresses.
(16) Sender.--
(A) In general.--Except as provided in subparagraph (B),
the term ``sender'', when used with respect to a commercial
electronic mail message, means a person who initiates such a
message and whose product, service, or Internet web site is
advertised or promoted by the message.
(B) Separate lines of business or divisions.--If an entity
operates through separate lines of business or divisions and
holds itself out to the recipient throughout the message as
that particular line of business or division rather than as the
entity of which such line of business or division is a part,
then the line of business or the division shall be treated as
the sender of such message for purposes of this Act.
(17) Transactional or relationship message.--
(A) In general.--The term ``transactional or relationship
message'' means an electronic mail message the primary purpose
of which is--
(i) to facilitate, complete, or confirm a commercial
transaction that the recipient has previously agreed to
enter into with the sender;
(ii) to provide warranty information, product recall
information, or safety or security information with respect
to a commercial product or service used or purchased by the
recipient;
(iii) to provide--
(I) notification concerning a change in the terms
or features of;
(II) notification of a change in the recipient's
standing or status with respect to; or
(III) at regular periodic intervals, account
balance information or other type of account statement
with respect to,
a subscription, membership, account, loan, or comparable
ongoing commercial relationship involving the ongoing
purchase or use by the recipient of products or services
offered by the sender;
(iv) to provide information directly related to an
employment relationship or related benefit plan in which
the recipient is currently involved, participating, or
enrolled; or
(v) to deliver goods or services, including product
updates or upgrades, that the recipient is entitled to
receive under the terms of a transaction that the recipient
has previously agreed to enter into with the sender.
(B) Modification of definition.--The Commission by
regulation pursuant to section 13 may modify the definition in
subparagraph (A) to expand or contract the categories of
messages that are treated as transactional or relationship
messages for purposes of this Act to the extent that such
modification is necessary to accommodate changes in electronic
mail technology or practices and accomplish the purposes of
this Act.

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(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) materially falsifies header information in multiple
commercial electronic mail messages and intentionally initiates the
transmission of such messages,
``(4) registers, using information that materially falsifies
the identity of the actual registrant, for five or more electronic
mail accounts or online user accounts or two or more domain names,
and intentionally initiates the transmission of multiple commercial
electronic mail messages from any combination of such accounts or
domain names, or
``(5) falsely represents oneself to be the registrant or the
legitimate successor in interest to the registrant of 5 or more
Internet Protocol addresses, and intentionally initiates the
transmission of multiple commercial electronic mail messages from
such addresses,
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 one 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 three 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.--
``(1) In general.--The court, in imposing sentence on a person
who is convicted of an offense under this section, shall order that
the defendant forfeit to the United States--
``(A) any property, real or personal, constituting or
traceable to gross proceeds obtained from such offense; and
``(B) any equipment, software, or other technology used or
intended to be used to commit or to facilitate the commission
of such offense.
``(2) Procedures.--The procedures set forth in section 413 of
the Controlled Substances Act (21 U.S.C. 853), other than
subsection (d) of that section, and in Rule 32.2 of the Federal
Rules of Criminal Procedure, shall apply to all stages of a
criminal forfeiture proceeding under this section.
``(d) Definitions.--In this section:
``(1) Loss.--The term `loss' has the meaning given that term in
section 1030(e) of this title.
``(2) Materially.--For purposes of paragraphs (3) and (4) of
subsection (a), header information or registration information is
materially falsified if it is altered or concealed in a manner that
would impair the ability of a recipient of the message, an Internet
access service processing the message on behalf of a recipient, a
person alleging a violation of this section, or a law enforcement
agency to identify, locate, or respond to a person who initiated
the electronic mail message or to investigate the alleged
violation.
``(3) 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.
``(4) Other terms.--Any other term has the meaning given that
term by section 3 of the CAN-SPAM Act of 2003.''.
(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, and other offenses that may be facilitated by the sending
of large quantities of unsolicited electronic mail.
(2) Requirements.--In carrying out this subsection, the
Sentencing Commission shall consider providing sentencing
enhancements for--
(A) those convicted under section 1037 of title 18, United
States Code, who--
(i) 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
(ii) 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; and
(B) those convicted of other offenses, including offenses
involving fraud, identity theft, obscenity, child pornography,
and the sexual exploitation of children, if such offenses
involved the sending of large quantities of electronic mail.
(c) Sense of Congress.--It is the sense of Congress that--
(1) Spam has become the method of choice for those who
distribute pornography, perpetrate fraudulent schemes, and
introduce viruses, worms, and Trojan horses into personal and
business computer systems; and
(2) the Department of Justice should use all existing law
enforcement tools to investigate and prosecute those who send bulk
commercial e-mail to facilitate the commission of Federal crimes,
including the tools contained in chapters 47 and 63 of title 18,
United States Code (relating to fraud and false statements);
chapter 71 of title 18, United States Code (relating to obscenity);
chapter 110 of title 18, United States Code (relating to the sexual
exploitation of children); and chapter 95 of title 18, United
States Code (relating to racketeering), as appropriate.

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(a) Requirements for Transmission of Messages.--
(1) Prohibition of false or misleading transmission
information.--It is unlawful for any person to initiate the
transmission, to a protected computer, of a commercial electronic
mail message, or a transactional or relationship message, that
contains, or is accompanied by, header information that is
materially false or materially misleading. For purposes of this
paragraph--
(A) header information that is technically accurate but
includes an originating electronic mail address, domain name,
or Internet Protocol address the access to which for purposes
of initiating the message was obtained by means of false or
fraudulent pretenses or representations shall be considered
materially misleading;
(B) a ``from'' line (the line identifying or purporting to
identify a person initiating the message) that accurately
identifies any person who initiated the message shall not be
considered materially false or materially misleading; and
(C) header information shall be considered materially
misleading if it fails to identify accurately a protected
computer used to initiate the message because the person
initiating the message knowingly uses another protected
computer to relay or retransmit the message for purposes of
disguising its origin.
(2) Prohibition of deceptive subject headings.--It is unlawful
for any person to initiate the transmission to a protected computer
of a commercial electronic mail message if such person has actual
knowledge, or knowledge fairly implied on the basis of objective
circumstances, that a subject heading of the message 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 (consistent with the criteria used in
enforcement of section 5 of the Federal Trade Commission Act (15
U.S.C. 45)).
(3) Inclusion of return address or comparable mechanism in
commercial electronic mail.--
(A) In general.--It is unlawful for any person to initiate
the transmission to a protected computer of a commercial
electronic mail message that does not contain 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 in the message, a reply electronic mail message
or other form of Internet-based communication requesting
not to receive future commercial electronic mail messages
from that sender at the electronic mail address where the
message was received; and
(ii) remains capable of receiving such messages or
communications for no less than 30 days after the
transmission of the original message.
(B) More detailed options possible.--The person initiating
a commercial electronic mail message may comply with
subparagraph (A)(i) by providing the recipient a list or menu
from which the recipient may choose the specific types of
commercial electronic mail messages the recipient wants to
receive or does not want to receive from the sender, if the
list or menu includes an option under which the recipient may
choose not to receive any commercial electronic mail messages
from the sender.
(C) Temporary inability to receive messages or process
requests.--A return electronic mail address or other mechanism
does not fail to satisfy the requirements of subparagraph (A)
if it is unexpectedly and temporarily unable to receive
messages or process requests due to a technical problem beyond
the control of the sender if the problem is corrected within a
reasonable time period.
(4) Prohibition of transmission of commercial electronic mail
after objection.--
(A) In general.--If a recipient makes a request using a
mechanism provided pursuant to paragraph (3) not to receive
some or any commercial electronic mail messages from such
sender, then it is unlawful--
(i) for the sender to initiate the transmission to the
recipient, more than 10 business days after the receipt of
such request, of a commercial electronic mail message that
falls within the scope of the request;
(ii) for any person acting on behalf of the sender to
initiate the transmission to the recipient, more than 10
business days after the receipt of such request, of a
commercial electronic mail message with actual knowledge,
or knowledge fairly implied on the basis of objective
circumstances, that such message falls within the scope of
the request;
(iii) for any person acting on behalf of the sender to
assist in initiating the transmission to the recipient,
through the provision or selection of addresses to which
the message will be sent, of a commercial electronic mail
message with actual knowledge, or knowledge fairly implied
on the basis of objective circumstances, that such message
would violate clause (i) or (ii); or
(iv) for the sender, or any other person who knows that
the recipient has made such a request, to 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 other
provision of law.
(B) Subsequent affirmative consent.--A prohibition in
subparagraph (A) does not apply if there is affirmative consent
by the recipient subsequent to the request under subparagraph
(A).
(5) Inclusion of identifier, opt-out, and physical address in
commercial electronic mail.--(A) It is unlawful for any person to
initiate the transmission of any commercial electronic mail message
to a protected computer unless the message provides--
(i) clear and conspicuous identification that the message
is an advertisement or solicitation;
(ii) clear and conspicuous notice of the opportunity under
paragraph (3) to decline to receive further commercial
electronic mail messages from the sender; and
(iii) a valid physical postal address of the sender.
(B) Subparagraph (A)(i) does not apply to the transmission of a
commercial electronic mail message if the recipient has given prior
affirmative consent to receipt of the message.
(6) Materially.--For purposes of paragraph (1), the term
``materially'', when used with respect to false or misleading
header information, includes the alteration or concealment of
header information in a manner that would impair the ability of an
Internet access service processing the message on behalf of a
recipient, a person alleging a violation of this section, or a law
enforcement agency to identify, locate, or respond to a person who
initiated the electronic mail message or to investigate the alleged
violation, or the ability of a recipient of the message to respond
to a person who initiated the electronic message.
(b) Aggravated Violations Relating to Commercial Electronic Mail.--
(1) Address harvesting and dictionary attacks.--
(A) In general.--It is unlawful for any person to initiate
the transmission, to a protected computer, of a commercial
electronic mail message that is unlawful under subsection (a),
or to assist in the origination of such message through the
provision or selection of addresses to which the message will
be transmitted, if such person had actual knowledge, or
knowledge fairly implied on the basis of objective
circumstances, that--
(i) 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 such website or online service included, at the time
the address was obtained, a notice stating that the
operator of such website or online service will not give,
sell, or otherwise transfer addresses maintained by such
website or online service to any other party for the
purposes of initiating, or enabling others to initiate,
electronic mail messages; or
(ii) the electronic mail address of the recipient was
obtained using an automated means that generates possible
electronic mail addresses by combining names, letters, or
numbers into numerous permutations.
(B) Disclaimer.--Nothing in this paragraph creates an
ownership or proprietary interest in such electronic mail
addresses.
(2) Automated creation of multiple electronic mail accounts.--
It is unlawful for any person to use scripts or other automated
means to register for multiple electronic mail accounts or online
user accounts from which to transmit to a protected computer, or
enable another person to transmit to a protected computer, a
commercial electronic mail message that is unlawful under
subsection (a).
(3) Relay or retransmission through unauthorized access.--It is
unlawful for any person knowingly to relay or retransmit a
commercial electronic mail message that is unlawful under
subsection (a) from a protected computer or computer network that
such person has accessed without authorization.
(c) Supplementary Rulemaking Authority.--The Commission shall by
regulation, pursuant to section 13--
(1) modify the 10-business-day period under subsection
(a)(4)(A) or subsection (a)(4)(B), or both, if the Commission
determines that a different period would be more reasonable after
taking into account--
(A) the purposes of subsection (a);
(B) the interests of recipients of commercial electronic
mail; and
(C) the burdens imposed on senders of lawful commercial
electronic mail; and
(2) specify additional activities or practices to which
subsection (b) applies if the Commission determines that those
activities or practices are contributing substantially to the
proliferation of commercial electronic mail messages that are
unlawful under subsection (a).
(d) 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 protected 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 subsection (a)(5); and
(iii) instructions on how to access, or a mechanism to
access, the sexually oriented material.
(2) Prior affirmative consent.--Paragraph (1) does not apply to
the transmission of an electronic mail message if the recipient has
given prior affirmative consent to receipt of the message.
(3) Prescription of marks and notices.--Not later than 120 days
after the date of the enactment of this Act, the Commission in
consultation with the Attorney General shall prescribe clearly
identifiable 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. The Commission shall
publish in the Federal Register and provide notice to the public of
the marks or notices prescribed under this paragraph.
(4) 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.
(5) Penalty.--Whoever knowingly violates paragraph (1) shall be
fined under title 18, United States Code, or imprisoned not more
than 5 years, or both.

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MISLEADING TRANSMISSION INFORMATION.
(a) In General.--It is unlawful for a person to promote, or allow
the promotion of, that person's trade or business, or goods, products,
property, or services sold, offered for sale, leased or offered for
lease, or otherwise made available through that trade or business, in a
commercial electronic mail message the transmission of which is in
violation of section 5(a)(1) if that person--
(1) knows, or should have known in the ordinary course of that
person's trade or business, that the goods, products, property, or
services sold, offered for sale, leased or offered for lease, or
otherwise made available through that trade or business were being
promoted in such a message;
(2) received or expected to receive an economic benefit from
such promotion; and
(3) took no reasonable action--
(A) to prevent the transmission; or
(B) to detect the transmission and report it to the
Commission.
(b) Limited Enforcement Against Third Parties.--
(1) In general.--Except as provided in paragraph (2), a person
(hereinafter referred to as the ``third party'') that provides
goods, products, property, or services to another person that
violates subsection (a) shall not be held liable for such
violation.
(2) Exception.--Liability for a violation of subsection (a)
shall be imputed to a third party that provides goods, products,
property, or services to another person that violates subsection
(a) if that third party--
(A) owns, or has a greater than 50 percent ownership or
economic interest in, the trade or business of the person that
violated subsection (a); or
(B)(i) has actual knowledge that goods, products, property,
or services are promoted in a commercial electronic mail
message the transmission of which is in violation of section
5(a)(1); and
(ii) receives, or expects to receive, an economic benefit
from such promotion.
(c) Exclusive Enforcement by FTC.--Subsections (f) and (g) of
section 7 do not apply to violations of this section.
(d) Savings Provision.--Except as provided in section 7(f)(8),
nothing in this section may be construed to limit or prevent any action
that may be taken under this Act with respect to any violation of any
other section of this Act.

00ebffee87dd3486913fe66ebcea059f99ba1cb314a01a51e3ca8504da41a5d5

(a) Violation Is Unfair or Deceptive Act or Practice.--Except as
provided in subsection (b), this Act shall be enforced by the
Commission as if the violation of this Act were an unfair or deceptive
act or practice proscribed under section 18(a)(1)(B) of the Federal
Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
(b) Enforcement by Certain Other Agencies.--Compliance with this
Act shall be enforced--
(1) under section 8 of the Federal Deposit Insurance Act (12
U.S.C. 1818), in the case of--
(A) national banks, and Federal branches and Federal
agencies of foreign banks, by the Office of the Comptroller of
the Currency;
(B) member banks of the Federal Reserve System (other than
national banks), branches and agencies of foreign banks (other
than Federal branches, Federal agencies, and insured State
branches of foreign banks), commercial lending companies owned
or controlled by foreign banks, organizations operating under
section 25 or 25A of the Federal Reserve Act (12 U.S.C. 601 and
611), and bank holding companies, by the Board;
(C) banks insured by the Federal Deposit Insurance
Corporation (other than members of the Federal Reserve System)
and insured State branches of foreign banks, by the Board of
Directors of the Federal Deposit Insurance Corporation; and
(D) savings associations the deposits of which are insured
by the Federal Deposit Insurance Corporation, by the Director
of the Office of Thrift Supervision;
(2) under the Federal Credit Union Act (12 U.S.C. 1751 et seq.)
by the Board of the National Credit Union Administration with
respect to any Federally insured credit union;
(3) under the Securities Exchange Act of 1934 (15 U.S.C. 78a et
seq.) by the Securities and Exchange Commission with respect to any
broker or dealer;
(4) under the Investment Company Act of 1940 (15 U.S.C. 80a-1
et seq.) by the Securities and Exchange Commission with respect to
investment companies;
(5) under the Investment Advisers Act of 1940 (15 U.S.C. 80b-1
et seq.) by the Securities and Exchange Commission with respect to
investment advisers registered under that Act;
(6) under State insurance law in the case of any person engaged
in providing insurance, by the applicable State insurance authority
of the State in which the person is domiciled, subject to section
104 of the Gramm-Bliley-Leach Act (15 U.S.C. 6701), except that in
any State in which the State insurance authority elects not to
exercise this power, the enforcement authority pursuant to this Act
shall be exercised by the Commission in accordance with subsection
(a);
(7) under part A of subtitle VII of title 49, United States
Code, by the Secretary of Transportation with respect to any air
carrier or foreign air carrier subject to that part;
(8) under the Packers and Stockyards Act, 1921 (7 U.S.C. 181 et
seq.) (except as provided in section 406 of that Act (7 U.S.C. 226,
227)), by the Secretary of Agriculture with respect to any
activities subject to that Act;
(9) under the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.)
by the Farm Credit Administration with respect to any Federal land
bank, Federal land bank association, Federal intermediate credit
bank, or production credit association; and
(10) under the Communications Act of 1934 (47 U.S.C. 151 et
seq.) by the Federal Communications Commission with respect to any
person subject to the provisions of that Act.
(c) Exercise of Certain Powers.--For the purpose of the exercise by
any agency referred to in subsection (b) of its powers under any Act
referred to in that subsection, a violation of this Act is deemed to be
a violation of a Federal Trade Commission trade regulation rule. In
addition to its powers under any provision of law specifically referred
to in subsection (b), each of the agencies referred to in that
subsection may exercise, for the purpose of enforcing compliance with
any requirement imposed under this Act, any other authority conferred
on it by law.
(d) Actions by the Commission.--The Commission shall prevent any
person from violating this Act in the same manner, by the same means,
and with the same jurisdiction, powers, and duties as though all
applicable terms and provisions of the Federal Trade Commission Act (15
U.S.C. 41 et seq.) were incorporated into and made a part of this Act.
Any entity that violates any provision of that subtitle is subject to
the penalties and entitled to the privileges and immunities provided in
the Federal Trade Commission Act in the same manner, by the same means,
and with the same jurisdiction, power, and duties as though all
applicable terms and provisions of the Federal Trade Commission Act
were incorporated into and made a part of that subtitle.
(e) Availability of Cease-and-Desist Orders and Injunctive Relief
Without Showing of Knowledge.--Notwithstanding any other provision of
this Act, in any proceeding or action pursuant to subsection (a), (b),
(c), or (d) of this section to enforce compliance, through an order to
cease and desist or an injunction, with section 5(a)(1)(C), section
5(a)(2), clause (ii), (iii), or (iv) of section 5(a)(4)(A), section
5(b)(1)(A), or section 5(b)(3), neither the Commission nor the Federal
Communications Commission shall be required to allege or prove the
state of mind required by such section or subparagraph.
(f) Enforcement by States.--
(1) Civil action.--In any case in which the attorney general of
a State, or an official or agency of a State, has reason to believe
that an interest of the residents of that State has been or is
threatened or adversely affected by any person who violates
paragraph (1) or (2) of section 5(a), who violates section 5(d), or
who engages in a pattern or practice that violates paragraph (3),
(4), or (5) of section 5(a), of this Act, the attorney general,
official, or agency of the State, as parens patriae, may bring a
civil action on behalf of the residents of the State in a district
court of the United States of appropriate jurisdiction--
(A) to enjoin further violation of section 5 of this Act by
the defendant; or
(B) to obtain damages on behalf of residents of the State,
in an amount equal to the greater of--
(i) the actual monetary loss suffered by such
residents; or
(ii) the amount determined under paragraph (3).
(2) Availability of injunctive relief without showing of
knowledge.--Notwithstanding any other provision of this Act, in a
civil action under paragraph (1)(A) of this subsection, the
attorney general, official, or agency of the State shall not be
required to allege or prove the state of mind required by section
5(a)(1)(C), section 5(a)(2), clause (ii), (iii), or (iv) of section
5(a)(4)(A), section 5(b)(1)(A), or section 5(b)(3).
(3) Statutory damages.--
(A) In general.--For purposes of paragraph (1)(B)(ii), the
amount determined under this paragraph is the amount calculated
by multiplying the number of violations (with each separately
addressed unlawful message received by or addressed to such
residents treated as a separate violation) by up to $250.
(B) Limitation.--For any violation of section 5 (other than
section 5(a)(1)), the amount determined under subparagraph (A)
may not exceed $2,000,000.
(C) Aggravated damages.--The court may increase a damage
award to an amount equal to not more than three times the
amount otherwise available under this paragraph if--
(i) the court determines that the defendant committed
the violation willfully and knowingly; or
(ii) the defendant's unlawful activity included one or
more of the aggravating violations set forth in section
5(b).
(D) Reduction of damages.--In assessing damages under
subparagraph (A), the court may consider whether--
(i) the defendant has established and implemented, with
due care, commercially reasonable practices and procedures
designed to effectively prevent such violations; or
(ii) the violation occurred despite commercially
reasonable efforts to maintain compliance the practices and
procedures to which reference is made in clause (i).
(4) Attorney fees.--In the case of any successful action under
paragraph (1), the court, in its discretion, may award the costs of
the action and reasonable attorney fees to the State.
(5) Rights of federal regulators.--The State shall serve prior
written notice of any action under paragraph (1) upon the Federal
Trade Commission or the appropriate Federal regulator determined
under subsection (b) and provide the Commission or appropriate
Federal regulator with a copy of its complaint, except in any case
in which such prior notice is not feasible, in which case the State
shall serve such notice immediately upon instituting such action.
The Federal Trade Commission or appropriate Federal regulator shall
have the right--
(A) to intervene in the action;
(B) upon so intervening, to be heard on all matters arising
therein;
(C) to remove the action to the appropriate United States
district court; and
(D) to file petitions for appeal.
(6) Construction.--For purposes of bringing any civil action
under paragraph (1), nothing in this Act shall be construed to
prevent an attorney general of a State from exercising the powers
conferred on the attorney general by the laws of that State to--
(A) conduct investigations;
(B) administer oaths or affirmations; or
(C) compel the attendance of witnesses or the production of
documentary and other evidence.
(7) Venue; service of process.--
(A) Venue.--Any action brought under paragraph (1) may be
brought in the district court of the United States that meets
applicable requirements relating to venue under section 1391 of
title 28, United States Code.
(B) Service of process.--In an action brought under
paragraph (1), process may be served in any district in which
the defendant--
(i) is an inhabitant; or
(ii) maintains a physical place of business.
(8) Limitation on state action while federal action is
pending.--If the Commission, or other appropriate Federal agency
under subsection (b), has instituted a civil action or an
administrative action for violation of this Act, no State attorney
general, or official or agency of a State, may bring an action
under this subsection during the pendency of that action against
any defendant named in the complaint of the Commission or the other
agency for any violation of this Act alleged in the complaint.
(9) Requisite scienter for certain civil actions.--Except as
provided in section 5(a)(1)(C), section 5(a)(2), clause (ii),
(iii), or (iv) of section 5(a)(4)(A), section 5(b)(1)(A), or
section 5(b)(3), in a civil action brought by a State attorney
general, or an official or agency of a State, to recover monetary
damages for a violation of this Act, the court shall not grant the
relief sought unless the attorney general, official, or agency
establishes that the defendant acted with actual knowledge, or
knowledge fairly implied on the basis of objective circumstances,
of the act or omission that constitutes the violation.
(g) Action by Provider of Internet Access Service.--
(1) Action authorized.--A provider of Internet access service
adversely affected by a violation of section 5(a)(1), 5(b), or
5(d), or a pattern or practice that violates paragraph (2), (3),
(4), or (5) of section 5(a), may bring a civil action in any
district court of the United States with jurisdiction over the
defendant--
(A) to enjoin further violation by the defendant; or
(B) to recover damages in an amount equal to the greater
of--
(i) actual monetary loss incurred by the provider of
Internet access service as a result of such violation; or
(ii) the amount determined under paragraph (3).
(2) Special definition of ``procure''.--In any action brought
under paragraph (1), this Act shall be applied as if the definition
of the term ``procure'' in section 3(12) contained, after
``behalf'' the words ``with actual knowledge, or by consciously
avoiding knowing, whether such person is engaging, or will engage,
in a pattern or practice that violates this Act''.
(3) Statutory damages.--
(A) In general.--For purposes of paragraph (1)(B)(ii), the
amount determined under this paragraph is the amount calculated
by multiplying the number of violations (with each separately
addressed unlawful message that is transmitted or attempted to
be transmitted over the facilities of the provider of Internet
access service, or that is transmitted or attempted to be
transmitted to an electronic mail address obtained from the
provider of Internet access service in violation of section
5(b)(1)(A)(i), treated as a separate violation) by--
(i) up to $100, in the case of a violation of section
5(a)(1); or
(ii) up to $25, in the case of any other violation of
section 5.
(B) Limitation.--For any violation of section 5 (other than
section 5(a)(1)), the amount determined under subparagraph (A)
may not exceed $1,000,000.
(C) Aggravated damages.--The court may increase a damage
award to an amount equal to not more than three times the
amount otherwise available under this paragraph if--
(i) the court determines that the defendant committed
the violation willfully and knowingly; or
(ii) the defendant's unlawful activity included one or
more of the aggravated violations set forth in section
5(b).
(D) Reduction of damages.--In assessing damages under
subparagraph (A), the court may consider whether--
(i) the defendant has established and implemented, with
due care, commercially reasonable practices and procedures
designed to effectively prevent such violations; or
(ii) the violation occurred despite commercially
reasonable efforts to maintain compliance with the
practices and procedures to which reference is made in
clause (i).
(4) Attorney fees.--In any action brought pursuant to paragraph
(1), the court may, in its discretion, require an undertaking for
the payment of the costs of such action, and assess reasonable
costs, including reasonable attorneys' fees, against any party.

49db042edbdf86609e7478b28708d2fa6a50a0b866d2882687515fe99bf2daf7

(a) Federal Law.--(1) Nothing in this Act shall 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) Nothing in this Act shall be construed to affect in any way the
Commission's authority to bring enforcement actions under FTC Act for
materially false or deceptive representations or unfair practices in
commercial electronic mail messages.
(b) State Law.--
(1) In general.--This Act supersedes any statute, regulation,
or rule of a State or political subdivision of a State that
expressly regulates the use of electronic mail to send commercial
messages, except to the extent that any such statute, regulation,
or rule prohibits falsity or deception in any portion of a
commercial electronic mail message or information attached thereto.
(2) State law not specific to electronic mail.--This Act shall
not be construed to preempt the applicability of--
(A) State laws that are not specific to electronic mail,
including State trespass, contract, or tort law; or
(B) other State laws to the extent that those laws relate
to acts of fraud or computer crime.
(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, or store certain types of electronic mail messages.

db0a14c837e0691e5b9960af0f3ecbe9dd4704268282e66fd978ee8d3db30a53

(a) In General.--Not later than 6 months after the date of
enactment of this Act, the Commission shall transmit to the Senate
Committee on Commerce, Science, and Transportation and the House of
Representatives Committee on Energy and Commerce a report that--
(1) sets forth a plan and timetable for establishing a
nationwide marketing Do-Not-E-Mail registry;
(2) includes an explanation of any practical, technical,
security, privacy, enforceability, or other concerns that the
Commission has regarding such a registry; and
(3) includes an explanation of how the registry would be
applied with respect to children with e-mail accounts.
(b) Authorization To Implement.--The Commission may establish and
implement the plan, but not earlier than 9 months after the date of
enactment of this Act.

437939009d1c3f61e014b7c6d992f3b14173e2ebbb995bbf372ff1ac1b9c42fa

(a) In General.--Not later than 24 months after the date of the
enactment of this Act, the Commission, in consultation with the
Department of Justice and other appropriate agencies, shall submit a
report to the Congress that provides a detailed analysis of the
effectiveness and enforcement of the provisions of this Act and the
need (if any) for the Congress to modify such provisions.
(b) Required Analysis.--The Commission shall include in the report
required by subsection (a)--
(1) 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;
(2) analysis and recommendations concerning how to address
commercial electronic mail that originates in or is transmitted
through or to facilities or computers in other nations, including
initiatives or policy positions that the Federal Government could
pursue through international negotiations, fora, organizations, or
institutions; and
(3) analysis and recommendations concerning options for
protecting consumers, including children, from the receipt and
viewing of commercial electronic mail that is obscene or
pornographic.

717d4879cbb9b1168fad3e416fca3bd1292ec9c64495bc14bd05ea6e35244972

ABOUT VIOLATIONS; LABELING.
The Commission shall transmit to the Senate Committee on Commerce,
Science, and Transportation and the House of Representatives Committee
on Energy and Commerce--
(1) a report, within 9 months after the date of enactment of
this Act, that sets forth a system for rewarding those who supply
information about violations of this Act, including--
(A) procedures for the Commission to grant a reward of not
less than 20 percent of the total civil penalty collected for a
violation of this Act to the first person that--
(i) identifies the person in violation of this Act; and
(ii) supplies information that leads to the successful
collection of a civil penalty by the Commission; and
(B) procedures to minimize the burden of submitting a
complaint to the Commission concerning violations of this Act,
including procedures to allow the electronic submission of
complaints to the Commission; and
(2) a report, within 18 months after the date of enactment of
this Act, that sets forth a plan for requiring commercial
electronic mail to be identifiable from its subject line, by means
of compliance with Internet Engineering Task Force Standards, the
use of the characters ``ADV'' in the subject line, or other
comparable identifier, or an explanation of any concerns the
Commission has that cause the Commission to recommend against the
plan.

ada83788c2b5e6f0c6a978cfc5530a0d8548e04cabcdb28bb7c9f032f79aea26

Section 227(b)(1) of the Communications Act of 1934 (47 U.S.C.
227(b)(1)) is amended, in the matter preceding subparagraph (A), by
inserting ``, or any person outside the United States if the recipient
is within the United States'' after ``United States''.

a3d0fb6c466809f854b37a86bb92407763b595f2c87daff696f7a96195b5ed47

(a) In General.--The Commission may issue regulations to implement
the provisions of this Act (not including the amendments made by
sections 4 and 12). Any such regulations shall be issued in accordance
with section 553 of title 5, United States Code.
(b) Limitation.--Subsection (a) may not be construed to authorize
the Commission to establish a requirement pursuant to section
5(a)(5)(A) to include any specific words, characters, marks, or labels
in a commercial electronic mail message, or to include the
identification required by section 5(a)(5)(A) in any particular part of
such a mail message (such as the subject line or body).

ead9554244ffd0056ca154287568d66d0c380d4c3f76e8a5b0eba75495405d9f

(a) Effect on Other Law.--Nothing in this Act shall be interpreted
to preclude or override the applicability of section 227 of the
Communications Act of 1934 (47 U.S.C. 227) or the rules prescribed
under section 3 of the Telemarketing and Consumer Fraud and Abuse
Prevention Act (15 U.S.C. 6102).
(b) FCC Rulemaking.--The Federal Communications Commission, in
consultation with the Federal Trade Commission, shall promulgate rules
within 270 days to protect consumers from unwanted mobile service
commercial messages. The Federal Communications Commission, in
promulgating the rules, shall, to the extent consistent with subsection
(c)--
(1) provide subscribers to commercial mobile services the
ability to avoid receiving mobile service commercial messages
unless the subscriber has provided express prior authorization to
the sender, except as provided in paragraph (3);
(2) allow recipients of mobile service commercial messages to
indicate electronically a desire not to receive future mobile
service commercial messages from the sender;
(3) take into consideration, in determining whether to subject
providers of commercial mobile services to paragraph (1), the
relationship that exists between providers of such services and
their subscribers, but if the Commission determines that such
providers should not be subject to paragraph (1), the rules shall
require such providers, in addition to complying with the other
provisions of this Act, to allow subscribers to indicate a desire
not to receive future mobile service commercial messages from the
provider--
(A) at the time of subscribing to such service; and
(B) in any billing mechanism; and
(4) determine how a sender of mobile service commercial
messages may comply with the provisions of this Act, considering
the unique technical aspects, including the functional and
character limitations, of devices that receive such messages.
(c) Other Factors Considered.--The Federal Communications
Commission shall consider the ability of a sender of a commercial
electronic mail message to reasonably determine that the message is a
mobile service commercial message.
(d) Mobile Service Commercial Message Defined.--In this section,
the term ``mobile service commercial message'' means a commercial
electronic mail message that is transmitted directly to a wireless
device that is utilized by a subscriber of commercial mobile service
(as such term is defined in section 332(d) of the Communications Act of
1934 (47 U.S.C. 332(d))) in connection with such service.

5b28ac3c09e67f877cbcdf10efc63bd9ac94f3f809b2523240e6d6cf27b3141a

If any provision of this Act or the application thereof to any
person or circumstance is held invalid, the remainder of this Act and
the application of such provision to other persons or circumstances
shall not be affected.

545a13ee7a832a70893bd67db637fcddc838ff3419c8e4ef9172e44163a30a80

The provisions of this Act, other than section 9, shall take effect
on January 1, 2004.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.

55df1fbbdaab52a1a00293faf7cb9caa3e49abcff3191c1f65a4e12a8265b6e0

Reduction of SPAM bill — S. 877

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