[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1327 Introduced in Senate (IS)]
108th CONGRESS
1st Session
S. 1327
To reduce unsolicited commercial electronic mail and to protect
children from sexually oriented advertisements.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 25, 2003
Mr. Corzine introduced the following bill; which was read twice and
referred to the Committee on Commerce, Science, and Transportation
_______________________________________________________________________
A BILL
To reduce unsolicited commercial electronic mail and to protect
children from sexually oriented advertisements.
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 ``Restrict and Eliminate the Delivery
of Unsolicited Commercial Electronic Mail or Spam Act of 2003'' or the
``REDUCE Spam Act of 2003''.
SEC. 2. DEFINITIONS.
In this Act:
(1) 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) 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.
(2) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(3) Electronic mail address.--
(A) In general.--The term ``electronic mail
address'' means a destination (commonly expressed as a
string of characters) to which an electronic mail
message can be sent or delivered.
(B) Inclusion.--In the case of the Internet, the
term ``electronic mail address'' may include an
electronic mail address consisting of a user name or
mailbox (commonly referred to as the ``local part'')
and a reference to an Internet domain (commonly
referred to as the ``domain part'').
(4) FTC act.--The term ``FTC Act'' means the Federal Trade
Commission Act (15 U.S.C. 41 et seq.).
(5) 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.
(6) Initiate.--The term ``initiate'', when used with
respect to a commercial electronic mail message, means to
originate such message or to procure the transmission of such
message, either directly or through an agent, but shall not
include actions that constitute routine conveyance of such
message by a provider of Internet access service. For purposes
of this Act, more than 1 person may be considered to have
initiated the same commercial electronic mail message.
(7) Internet.--The term ``Internet'' has the meaning given
that term in section 231(e)(3) of the Communications Act of
1934 (47 U.S.C. 231(e)(3)).
(8) 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)).
(9) Pre-existing business relationship.--
(A) In general.--The term ``pre-existing business
relationship'', when used with respect to a commercial
electronic mail message, means that either--
(i) within the 5-year period ending upon
receipt of a commercial electronic mail
message, there has been a business transaction
between the sender and the recipient, including
a transaction involving the provision, free of
charge, of information, goods, or services
requested by the recipient and the recipient
was, at the time of such transaction or
thereafter, provided a clear and conspicuous
notice of an opportunity not to receive further
commercial electronic mail messages from the
sender and has not exercised such opportunity;
or
(ii) the recipient has given the sender
permission to initiate commercial electronic
mail messages to the electronic mail address of
the recipient and has not subsequently revoked
such permission.
(B) Applicability.--If a sender operates through
separate lines of business or divisions and holds
itself out to the recipient as that particular line of
business or division, then such line of business or
division shall be treated as the sender for purposes of
subparagraph (A).
(10) Recipient.--The term ``recipient'', when used with
respect to a commercial electronic mail message, means the
addressee of such message.
(11) Sender.--The term ``sender'', when used with respect
to a commercial electronic mail message, means the person who
initiates such message. The term ``sender'' does not include a
provider of Internet access service whose role with respect to
electronic mail messages is limited to handling, transmitting,
retransmitting, or relaying such messages.
(12) Unsolicited commercial electronic mail message.--The
term ``unsolicited commercial electronic mail message'' means
any commercial electronic mail message that--
(A) is not a transactional or relationship message;
and
(B) is sent to a recipient without the recipient's
prior affirmative or implied consent.
SEC. 3. COMMERCIAL ELECTRONIC MAIL CONTAINING FRAUDULENT HEADER OR
ROUTING INFORMATION.
(a) In General.--Chapter 63 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 1351. Unsolicited commercial electronic mail containing
fraudulent header information
``(a) Any person who initiates the transmission of any unsolicited
commercial electronic mail message, with knowledge and intent that the
message contains or is accompanied by header information that is false
or materially misleading, shall be fined or imprisoned for not more
than 1 year, or both, under this title.
``(b) For purposes of this section, the terms `unsolicited
commercial electronic mail message' and `header information' have the
meanings given such terms in section 2 of the REDUCE Spam Act of
2003.''.
(b) Conforming Amendment.--The chapter analysis at the beginning of
chapter 63 of title 18, United States Code, is amended by adding at the
end the following:
``1351. Unsolicited commercial electronic mail.''.
SEC. 4. REQUIREMENTS FOR UNSOLICITED COMMERCIAL ELECTRONIC MAIL.
(a) Subject Line Requirements.--It shall be unlawful for any person
to initiate the transmission of an unsolicited commercial electronic
mail message to an electronic mail address within the United States,
unless the subject line includes--
(1) except in the case of an unsolicited commercial
electronic mail message described in paragraph (2)--
(A) an identification that complies with the
standards adopted by the Internet Engineering Task
Force for identification of unsolicited commercial
electronic mail messages; or
(B) in the case of the absence of such standards,
``ADV:'' as the first four characters; or
(2) in the case of an unsolicited commercial electronic
mail message that contains material that may only be viewed,
purchased, rented, leased, or held in possession by an
individual 18 years of age and older--
(A) an identification that complies with the
standards adopted by the Internet Engineering Task
Force for identification of adult-oriented unsolicited
commercial electronic mail messages; or
(B) in the case of the absence of such standards,
``ADV:ADLT'' as the first eight characters.
(b) Return Address Requirements.--
(1) Establishment.--It shall be unlawful for any person to
initiate the transmission of an unsolicited commercial
electronic mail message to an electronic mail address within
the United States, unless the sender establishes a valid
sender-operated return electronic mail address where the
recipient may notify the sender not to send any further
commercial electronic mail messages.
(2) Included statement.--All unsolicited commercial
electronic mail messages subject to this subsection shall
include a statement informing the recipient of the valid return
electronic mail address referred to in paragraph (1).
(3) Prohibition of sending after objection.--Upon
notification or confirmation by a recipient of the recipient's
request not to receive any further unsolicited commercial
electronic mail messages, it shall be unlawful for a person, or
anyone acting on that person's behalf, to send any unsolicited
commercial electronic mail message to that recipient. Such a
request shall be deemed to terminate a pre-existing business
relationship for purposes of determining whether subsequent
messages are unsolicited commercial electronic mail messages.
(c) Header and Subject Heading Requirements.--
(1) False or misleading header information.--It shall be
unlawful for any person to initiate the transmission of an
unsolicited commercial electronic mail message that such person
knows, or reasonably should know, contains or is accompanied by
header information that is false or materially misleading.
(2) Deceptive subject headings.--It shall be unlawful for
any person to initiate the transmission of an unsolicited
commercial electronic mail message with a subject heading that
such person knows, or reasonably should know, is likely to
mislead a recipient, acting reasonably under the circumstances,
about a material fact regarding the contents or subject matter
of the message.
(d) Affirmative Defense.--A person who violates subsection (a) or
(b) shall not be liable if--
(1)(A) the person has established and implemented, with due
care, reasonable practices and procedures to effectively
prevent such violations; and
(B) the violation occurred despite good faith efforts to
maintain compliance with such practices and procedures; or
(2) within the 2-day period ending upon the initiation of
the transmission of the unsolicited commercial electronic mail
message in violation of subsection (a) or (b), such person
initiated the transmission of such message, or one
substantially similar to it, to less than 1,000 electronic mail
addresses.
SEC. 5. ENFORCEMENT.
(a) In General.--Section 4 shall be enforced by the Commission
under the FTC Act. For purposes of such Commission enforcement, a
violation of this Act shall be treated as a violation of a rule under
section 18 (15 U.S.C. 57a) of the FTC Act prohibiting an unfair or
deceptive act or practice.
(b) Rulemaking.--Not later than 30 days after the date of enactment
of this Act, the Commission shall institute a rulemaking proceeding
concerning enforcement of this Act. The rules adopted by the Commission
shall prevent violations of section 4 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 FTC Act were incorporated into
and made a part of this section, except that the rules shall also
include--
(1) procedures to minimize the burden of submitting a
complaint to the Commission concerning a violation of section
4, including procedures to allow the electronic submission of
complaints to the Commission;
(2) civil penalties for violations of section 4 in an
amount sufficient to effectively deter future violations, a
description of the type of evidence needed to collect such
penalties, and procedures to collect such penalties if the
Commission determines that a violation of section 4 has
occurred;
(3) procedures for the Commission to grant a reward of not
less than 20 percent of the total civil penalty collected to
the first person that--
(A) identifies the person in violation of section
4; and
(B) supplies information that leads to the
successful collection of a civil penalty by the
Commission;
(4) a provision that enables the Commission to keep the
remainder of the civil penalty collected and use the funds
toward the prosecution of further claims, including for
necessary staff or resources; and
(5) civil penalties for knowingly submitting a false
complaint to the Commission.
(c) Regulations.--Not later than 180 days after the date of
enactment of this Act, the Commission shall conclude the rulemaking
proceeding initiated under subsection (b) and shall prescribe
implementing regulations.
SEC. 6. PRIVATE RIGHT OF ACTION.
(a) Action Authorized.--A recipient of an unsolicited commercial
electronic mail message, or a provider of Internet access service,
adversely affected by a violation of section 4 may bring a civil action
in any district court of the United States with jurisdiction over the
defendant to--
(1) enjoin further violation by the defendant; or
(2) recover damages in an amount equal to--
(A) actual monetary loss incurred by the recipient
or provider of Internet access service as a result of
such violation; or
(B) at the discretion of the court, the amount
determined under subsection (b).
(b) Statutory Damages.--
(1) In general.--For purposes of subsection (a)(2)(B), the
amount determined under this subsection is the amount
calculated by multiplying the number of willful, knowing, or
negligent violations by an amount, in the discretion of the
court, of up to $10.
(2) Per-violation penalty.--In determining the per-
violation penalty under this subsection, the court shall take
into account the degree of culpability, any history of prior
such conduct, ability to pay, the extent of economic gain
resulting from the violation, and such other matters as justice
may require.
(c) Attorney Fees.--In any action brought pursuant to subsection
(a), 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. 7. INTERNET ACCESS SERVICE PROVIDERS.
Nothing in this Act shall be construed--
(1) to enlarge or diminish the application of chapter 121
of title 18, relating to when a provider of Internet access
service may disclose customer communications or records;
(2) to require a provider of Internet access service to
block, transmit, route, relay, handle, or store certain types
of electronic mail messages;
(3) to prevent or limit, in any way, a provider of Internet
access service from adopting a policy regarding commercial
electronic mail messages, including a policy of declining to
transmit certain types of commercial electronic mail messages,
or from enforcing such policy through technical means, through
contract, or pursuant to any other provision of Federal, State,
or local criminal or civil law; or
(4) to render lawful any such policy that is unlawful under
any other provision of law.
SEC. 8. EFFECT ON OTHER LAWS.
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), 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.
SEC. 9. FTC STUDY.
Not later than 24 months after the date of enactment of this Act,
the Commission, in consultation with appropriate agencies, shall submit
a report to Congress that provides a detailed analysis of the
effectiveness and enforcement of the provisions of this Act and the
need, if any, for Congress to modify such provisions.
SEC. 10. STUDY OF POSSIBLE INTERNATIONAL AGREEMENT.
Not later than 6 months after the date of enactment of this Act,
the President shall--
(1) conduct a study in consultation with the Internet
Engineering Task Force on the possibility of an international
agreement to reduce spam; and
(2) issue a report to Congress setting forth the findings
of the study required by paragraph (1).
SEC. 11. EFFECTIVE DATE.
The provisions of this Act shall take effect 180 days after the
date of enactment of this Act, except that subsections (b) and (c) of
section 5 shall take effect upon the date of enactment of this Act.
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