Controlling
the Assault of Non-Solicited Pornography
and Marketing Act
CAN-SPAM Act of 2003 (S. 877) - Anti-SPAM
Federal Statute
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,
SECTION 1. SHORT TITLE.
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'.
SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.
(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.
(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.
(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.
(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.
(b) CONGRESSIONAL DETERMINATION OF PUBLIC POLICY- On the basis of
the findings in subsection (a), the Congress determines that--
SEC. 3. DEFINITIONS.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
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;
(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.
SEC. 4. PROHIBITION AGAINST PREDATORY AND ABUSIVE COMMERCIAL
E-MAIL.
`Sec. 1037. Fraud and related activity in connection with
electronic mail
`(a) IN GENERAL- Whoever, in or affecting interstate or foreign
commerce, knowingly--
`(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,
`(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).
`(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;
`(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.
`(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.
`Sec.
(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.
(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
(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.
(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.
SEC. 5. OTHER PROTECTIONS FOR USERS OF COMMERCIAL ELECTRONIC MAIL.
(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;
(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)).
(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
(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.
(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.
(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--
(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.
(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.
(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).
(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--
(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--
(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--
(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.
SEC. 6. BUSINESSES KNOWINGLY PROMOTED BY ELECTRONIC MAIL WITH FALSE
OR 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;
(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--
(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
(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.
SEC. 7. ENFORCEMENT GENERALLY.
(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) 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;
(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);
(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
(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.
(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--
(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).
(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.
(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--
(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.
(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--
(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'.
(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--
(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.
(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.
SEC. 8. EFFECT ON OTHER LAWS.
(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.
(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.
(A) State laws that are not specific to electronic mail,
including State trespass, contract, or tort law; or
(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.
SEC. 9. DO-NOT-E-MAIL REGISTRY.
(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--
(2) includes an explanation of any practical, technical,
security, privacy, enforceability, or other concerns that the
Commission has regarding such a registry; and
(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.
SEC. 10. STUDY OF EFFECTS OF COMMERCIAL ELECTRONIC MAIL.
(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.
(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
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--
(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.
SEC. 12. RESTRICTIONS ON OTHER TRANSMISSIONS.
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'.
SEC. 13. REGULATIONS.
(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).
SEC. 14. APPLICATION TO WIRELESS.
(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)--
(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--
(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.
SEC. 15. SEPARABILITY.
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.
SEC. 16. EFFECTIVE DATE.
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.
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