[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1293 Reported in Senate (RS)]
Calendar No. 288
108th CONGRESS
1st Session
S. 1293
To criminalize the sending of predatory and abusive e-mail.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 19, 2003
Mr. Hatch (for himself, Mr. Leahy, Mr. Schumer, Mr. Grassley, Mrs.
Feinstein, Mr. DeWine, Mr. Edwards, Mr. Wyden, Mr. Burns, Mr. Pryor,
Mr. Miller, and Mr. Nelson of Florida) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
September 25, 2003
Reported by Mr. Hatch, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To criminalize the sending of predatory and abusive e-mail.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Criminal Spam Act of
2003''.</DELETED>
<DELETED>SEC. 2. PROHIBITION AGAINST PREDATORY AND ABUSIVE COMMERCIAL
E-MAIL.</DELETED>
<DELETED> (a) Offense.--</DELETED>
<DELETED> (1) In general.--Chapter 47 of title 18, United
States Code, is amended by adding at the end the following new
section:</DELETED>
<DELETED>``Sec. 1037. Fraud and related activity in connection with
electronic mail</DELETED>
<DELETED> ``(a) In General.--Whoever, in or affecting interstate or
foreign commerce, knowingly--</DELETED>
<DELETED> ``(1) accesses a protected computer without
authorization, and intentionally initiates the transmission of
multiple commercial electronic mail messages from or through
such computer;</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(3) falsifies header information in multiple
commercial electronic mail messages and intentionally initiates
the transmission of such messages; or</DELETED>
<DELETED> ``(4) registers, using information that falsifies
the identity of the actual registrant, for 5 or more electronic
mail accounts or online user accounts or 2 or more domain
names, and intentionally initiates the transmission of multiple
commercial electronic mail messages from such accounts or
domain names;</DELETED>
<DELETED>or conspires to do so, shall be punished as provided in
subsection (b).</DELETED>
<DELETED> ``(b) Penalties.--The punishment for an offense under
subsection (a) is--</DELETED>
<DELETED> ``(1) a fine under this title, imprisonment for
not more than 5 years, or both, if--</DELETED>
<DELETED> ``(A) the offense is committed in
furtherance of any felony under the laws of the United
States or of any State; or</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(2) a fine under this title, imprisonment for
not more than 3 years, or both, if--</DELETED>
<DELETED> ``(A) the offense is an offense under
subsection (a)(1);</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(D) the offense caused loss to 1 or more
persons aggregating $5,000 or more in value during any
1-year period;</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(F) the offense was undertaken by the
defendant in concert with 3 or more other persons with
respect to whom the defendant occupied a position of
organizer or leader; and</DELETED>
<DELETED> ``(3) a fine under this title or imprisonment for
not more than 1 year, or both, in any other case.</DELETED>
<DELETED> ``(c) Forfeiture.--A person who is convicted of an offense
under this section shall forfeit to the United States such person's
interest in--</DELETED>
<DELETED> ``(1) any property, real or personal, constituting
or traceable to gross profits or other proceeds obtained from
such offense; and</DELETED>
<DELETED> ``(2) any equipment, software, or other technology
used or intended to be used to commit or to promote the
commission of such offense.</DELETED>
<DELETED> ``(d) Civil Remedies.--</DELETED>
<DELETED> ``(1) In general.--The Attorney General, or any
person engaged in the business of providing an Internet access
service to the public aggrieved by reason of a violation of
subsection (a), may commence a civil action against the
violator in any appropriate United States District Court for
the relief set forth in paragraphs (2) and (3). No action may
be brought under this subsection unless such action is begun
within 2 years of the date of the act which is the basis for
the action.</DELETED>
<DELETED> ``(2) Attorney general action.--In an action by
the Attorney General under paragraph (1), the court may award
appropriate relief, including temporary, preliminary, or
permanent injunctive relief. The court may also assess a civil
penalty in an amount not exceeding $25,000 per day of
violation, or not less than $2 or more than $8 per electronic
mail message initiated in violation of subsection (a), as the
court considers just.</DELETED>
<DELETED> ``(3) Other actions.--In any other action under
paragraph (1), the court may award appropriate relief,
including temporary, preliminary, or permanent injunctive
relief, and damages in an amount equal to the greater of--
</DELETED>
<DELETED> ``(A) the actual damages suffered by the
Internet access service as a result of the violation,
and any receipts of the violator that are attributable
to the violation and are not taken into account in
computing actual damages; or</DELETED>
<DELETED> ``(B) statutory damages in the sum of
$25,000 per day of violation, or not less than $2 or
more than $8 per electronic mail message initiated in
violation of subsection (a), as the court considers
just.</DELETED>
<DELETED> ``(e) Definitions.--In this section:</DELETED>
<DELETED> ``(1) Commercial electronic mail message.--The
term `commercial electronic mail message' means any electronic
mail message the primary purpose of which is the commercial
advertisement or promotion of a commercial product or service
(including content on an Internet website or online site
operated for a commercial purpose).</DELETED>
<DELETED> ``(2) Computer and protected computer.--The terms
`computer' and `protected computer' have the meaning given
those terms in section 1030(e) of this title.</DELETED>
<DELETED> ``(3) Domain name.--The term `domain name' means
any alphanumeric designation which is registered with or
assigned by any domain name registrar, domain name registry, or
other domain name registration authority, and that is included
in an electronic mail message.</DELETED>
<DELETED> ``(4) Header information.--The term `header
information' means the source, destination, routing
information, or information authenticating the sender,
associated with an electronic mail message, including but not
limited to the originating domain name, originating electronic
mail address, information regarding any part of the route that
an electronic mail message travels or appears to travel on the
Internet or on an online service, or other authenticating
information.</DELETED>
<DELETED> ``(5) Initiate.--The term `initiate' means to
originate an electronic mail message or to procure the
origination of such message, regardless of whether the message
reaches its intended recipients, and does not include the
actions of an Internet access service used by another person
for the transmission of an electronic mail message for which
another person has provided and selected the recipient
electronic mail addresses.</DELETED>
<DELETED> ``(6) Internet access service.--The term `Internet
access service' has the meaning given that term in section
231(e)(4) of the Communications Act of 1934 (47 U.S.C.
231(e)(4)).</DELETED>
<DELETED> ``(7) Loss.--The term `loss' has the meaning given
that term in section 1030(e) of this title.</DELETED>
<DELETED> ``(8) Message.--The term `message' means each
electronic mail message addressed to a discrete
addressee.</DELETED>
<DELETED> ``(9) Multiple.--The term `multiple' means more
than 100 electronic mail messages during a 24-hour period, more
than 1,000 electronic mail messages during a 30-day period, or
more than 10,000 electronic mail messages during a 1-year
period.''.</DELETED>
<DELETED> (2) Conforming amendment.--The chapter analysis
for chapter 47 of title 18, United States Code, is amended by
adding at the end the following:</DELETED>
<DELETED>``Sec.
<DELETED>``1037. Fraud and related activity in connection with
electronic mail.''.
<DELETED> (b) United States Sentencing Commission.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (2) Requirements.--In carrying out this
subsection, the Sentencing Commission shall consider providing
sentencing enhancements for those convicted under section 1037
of title 18, United States Code, who--</DELETED>
<DELETED> (A) obtained electronic mail addresses
through improper means, including--</DELETED>
<DELETED> (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</DELETED>
<DELETED> (ii) randomly generating
electronic mail addresses by computer;
or</DELETED>
<DELETED> (B) knew that the commercial electronic
mail messages involved in the offense contained or
advertised an Internet domain for which the registrant
of the domain had provided false registration
information.</DELETED>
<DELETED>SEC. 3. REPORT AND SENSE OF CONGRESS REGARDING INTERNATIONAL
SPAM.</DELETED>
<DELETED> (a) Findings.--Congress finds the following:</DELETED>
<DELETED> (1) The Internet is a global communications
medium.</DELETED>
<DELETED> (2) Commercial e-mail sent in violation of this
Act can be sent from virtually anywhere in the world.</DELETED>
<DELETED> (3) As domestic deterrence and enforcement against
predatory and abusive commercial e-mail improves, there is a
risk that predatory and abusive spammers will move their
activities abroad and spam into the United States.</DELETED>
<DELETED> (4) As with other forms of cyber-crime,
international cooperation of law enforcement officials is
essential to combat predatory and abusive spam.</DELETED>
<DELETED> (b) Report.--The Department of Justice and the Department
of State shall report to Congress within 18 months of the date of
enactment of this Act regarding the status of their efforts to achieve
international cooperation in the investigation and prosecution of
spammers who engage in conduct that violates this Act, including the
jurisdictions involved and the outcomes of any prosecutions, and any
recommendations for addressing predatory and abusive spam sent to the
United States from other countries.</DELETED>
<DELETED> (c) Sense of Congress.--It is the sense of Congress that
the Department of Justice and the Department of State, as part of their
efforts to improve investigation and prosecution of international
cyber-crime, should work through international fora for the cooperation
of other countries in investigating and prosecuting predatory and
abusive spammers who engage in conduct that violates this
Act.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Criminal Spam Act of 2003''.
SEC. 2. PROHIBITION AGAINST PREDATORY AND ABUSIVE COMMERCIAL E-MAIL.
(a) Offense.--
(1) In general.--Chapter 47 of title 18, United States
Code, is amended by adding at the end the following new
section:
``Sec. 1037. Fraud and related activity in connection with electronic
mail
``(a) In General.--Whoever, in or affecting interstate or foreign
commerce, knowingly--
``(1) accesses a protected computer without authorization,
and intentionally initiates the transmission of multiple
commercial electronic mail messages from or through such
computer;
``(2) uses a protected computer to relay or retransmit
multiple commercial electronic mail messages, with the intent
to deceive or mislead recipients, or any Internet access
service, as to the origin of such messages;
``(3) falsifies header information in multiple commercial
electronic mail messages and intentionally initiates the
transmission of such messages;
``(4) registers, using information that falsifies the
identity of the actual registrant, for 5 or more electronic
mail accounts or online user accounts or 2 or more domain
names, and intentionally initiates the transmission of multiple
commercial electronic mail messages from any combination of
such accounts or domain names; or
``(5) falsely represents the right to use 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 1 or more persons
aggregating $5,000 or more in value during any 1-year
period;
``(E) as a result of the offense any individual
committing the offense obtained anything of value
aggregating $5,000 or more during any 1-year period; or
``(F) the offense was undertaken by the defendant
in concert with 3 or more other persons with respect to
whom the defendant occupied a position of organizer or
leader; and
``(3) a fine under this title or imprisonment for not more
than 1 year, or both, in any other case.
``(c) Forfeiture.--
``(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) Civil Remedies.--
``(1) In general.--The Attorney General, or any person
engaged in the business of providing an Internet access service
to the public aggrieved by reason of a violation of subsection
(a), may commence a civil action against the violator in any
appropriate United States District Court for the relief set
forth in paragraphs (2) and (3). No action may be brought under
this subsection unless such action is begun within 2 years of
the date of the act which is the basis for the action.
``(2) Attorney general action.--In an action by the
Attorney General under paragraph (1), the court may award
appropriate relief, including temporary, preliminary, or
permanent injunctive relief. The court may also assess a civil
penalty in an amount not exceeding $25,000 per day of
violation, or not less than $2 or more than $8 per electronic
mail message initiated in violation of subsection (a), as the
court considers just.
``(3) Other actions.--In any other action under paragraph
(1), the court may award appropriate relief, including
temporary, preliminary, or permanent injunctive relief, and
damages in an amount equal to the greater of--
``(A) the actual damages suffered by the Internet
access service as a result of the violation, and any
receipts of the violator that are attributable to the
violation and are not taken into account in computing
actual damages; or
``(B) statutory damages in the sum of $25,000 per
day of violation, or not less than $2 or more than $8
per electronic mail message initiated in violation of
subsection (a), as the court considers just.
``(e) Definitions.--In this section:
``(1) Commercial electronic mail message.--The term
`commercial electronic mail message' means any electronic mail
message the primary purpose of which is the commercial
advertisement or promotion of a commercial product or service
(including content on an Internet website or online site
operated for a commercial purpose).
``(2) Computer and protected computer.--The terms
`computer' and `protected computer' have the meaning given
those terms in section 1030(e) of this title.
``(3) Domain name.--The term `domain name' means any
alphanumeric designation which is registered with or assigned
by any domain name registrar, domain name registry, or other
domain name registration authority, and that is included in an
electronic mail message.
``(4) Header information.--The term `header information'
means the source, destination, and routing information attached
to an electronic mail message, including the originating domain
name, the originating electronic mail address, and technical
information that authenticates the sender of an electronic mail
message for network security or network management purposes.
``(5) Initiate.--The term `initiate' means to originate an
electronic mail message or to procure the origination of such
message, regardless of whether the message reaches its intended
recipients, and does not include the actions of an Internet
access service used by another person for the transmission of
an electronic mail message for which another person has
provided and selected the recipient electronic mail addresses.
``(6) Internet access service.--The term `Internet access
service' has the meaning given that term in section 231(e)(4)
of the Communications Act of 1934 (47 U.S.C. 231(e)(4)).
``(7) Loss.--The term `loss' has the meaning given that
term in section 1030(e) of this title.
``(8) Message.--The term `message' means each electronic
mail message addressed to a discrete addressee.
``(9) Multiple.--The term `multiple' means more than 100
electronic mail messages during a 24-hour period, more than
1,000 electronic mail messages during a 30-day period, or more
than 10,000 electronic mail messages during a 1-year period.''.
(2) Conforming amendment.--The chapter analysis for chapter
47 of title 18, United States Code, is amended by adding at the
end the following:
``Sec.
``1037. Fraud and related activity in connection with electronic
mail.''.
(b) United States Sentencing Commission.--
(1) Directive.--Pursuant to its authority under section
994(p) of title 28, United States Code, and in accordance with
this section, the United States Sentencing Commission shall
review and, as appropriate, amend the sentencing guidelines and
policy statements to provide appropriate penalties for
violations of section 1037 of title 18, United States Code, as
added by this section.
(2) Requirements.--In carrying out this subsection, the
Sentencing Commission shall consider providing sentencing
enhancements for those convicted under section 1037 of title
18, United States Code, who--
(A) obtained electronic mail addresses through
improper means, including--
(i) harvesting electronic mail addresses of
the users of a website, proprietary service, or
other online public forum operated by another
person, without the authorization of such
person; and
(ii) randomly generating electronic mail
addresses by computer; or
(B) knew that the commercial electronic mail
messages involved in the offense contained or
advertised an Internet domain for which the registrant
of the domain had provided false registration
information.
SEC. 3. REPORT AND SENSE OF CONGRESS REGARDING INTERNATIONAL SPAM.
(a) Findings.--Congress finds the following:
(1) The Internet is a global communications medium.
(2) Commercial e-mail sent in violation of this Act can be
sent from virtually anywhere in the world.
(3) As domestic deterrence and enforcement against
predatory and abusive commercial e-mail improves, there is a
risk that predatory and abusive spammers will move their
activities abroad and spam into the United States.
(4) As with other forms of cyber-crime, international
cooperation of law enforcement officials is essential to combat
predatory and abusive spam.
(b) Report.--The Department of Justice and the Department of State
shall report to Congress within 18 months of the date of enactment of
this Act regarding the status of their efforts to achieve international
cooperation in the investigation and prosecution of spammers who engage
in conduct that violates this Act, including the jurisdictions involved
and the outcomes of any prosecutions, and any recommendations for
addressing predatory and abusive spam sent to the United States from
other countries.
(c) Sense of Congress.--It is the sense of Congress that the
Department of Justice and the Department of State, as part of their
efforts to improve investigation and prosecution of international
cyber-crime, should work through international fora for the cooperation
of other countries in investigating and prosecuting predatory and
abusive spammers who engage in conduct that violates this Act.
Calendar No. 288
108th CONGRESS
1st Session
S. 1293
_______________________________________________________________________
A BILL
To criminalize the sending of predatory and abusive e-mail.
_______________________________________________________________________
September 25, 2003
Reported with an amendment