I 

108TH CONGRESS 

1ST SESSION H. R. 2214

To prevent unsolicited commercial electronic mail. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 22, 2003

Mr. BURR (for himself, Mr. SENSENBRENNER, Mr. TAUZIN, Mr. GOODLATTE, 

Mr. UPTON, Ms. HART, Mr. STEARNS, and Mr. CANNON) introduced the 

following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period 

to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee 

concerned 

A BILL

To prevent unsolicited commercial electronic mail.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE AND TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Reduction in Distribution of Spam Act of 2003’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows:

Sec.1.Short title and table of contents. 

Sec.2.Findings and determination of policy. 
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TITLE I—PROTECTIONS AGAINST CERTAIN COMMERCIAL 

ELECTRONIC MAIL 

Sec.101.Restrictions on commercial electronic mail. 

Sec.102.Private right of action for providers of Internet access service. 

Sec.103.Actions by States. 

Sec.104.Prohibition of class actions; attorney’s fees. 

Sec.105.Enforcement by Federal Trade Commission. 

Sec.106.Restrictions on other unsolicited transmissions. 

Sec.107.Exclusiveness of remedies. 

TITLE II—AMENDMENTS TO TITLE 18, UNITED STATES CODE 

Sec.201.Criminal penalties and related provisions. 

TITLE III—GENERAL PROVISIONS 

Sec.301.Regulations and report. 

Sec.302.Effect on other laws. 

Sec.303.Study of effects of Act. 

Sec.304.Definitions. 

Sec.305.Effective date.

1 SEC. 2. FINDINGS AND DETERMINATION OF POLICY. 

2 (a) FINDINGS.—The Congress finds the following: 

3 (1) Electronic mail (email) has rapidly become 

4 an integral means of commercial and personal com5 munication and presents unprecedented opportuni6 ties for the development and growth of frictionless 

7 global commerce. 

8 (2) With the increasingly accepted use of email 

9 has come the explosion of unsolicited commercial 

10 electronic mail (UCE), also known as spam, which 

11 is flooding the arteries of critical communications 

12 networks and servers and threatening the viability of 

13 email as a primary communications medium. 

14 (3) Internet observers and experts are con15 cerned about the effect of the increasing abundance 

16 of UCE on network bandwidth, network storage 
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1 costs, user productivity, and legal vulnerability to re2 duce functionality of global networks. UCE currently 

3 comprises nearly 40 percent of all email activity, up 

4 from 8 percent in 2001. 

5 (4) UCE poses network security risks to busi6 nesses and governments because of the introduction 

7 of viruses and malicious code delivered via UCE 

8 messages. 

9 (5) The increasing prevalence of UCE has led 

10 to a decreased level of consumer trust for legitimate 

11 email marketers and decreased willingness of end 

12 users to test new advertising formats, thus affecting 

13 potential for all forms of advertising in an already 

14 depressed marketplace. 

15 (6) For the Internet to maintain and build 

16 upon its commercial growth, users must have con17 fidence in the security and usability of this electronic 

18 medium. But ‘‘e-commerce’’ is still in its infancy and 

19 any legislation or regulation regarding email must be 

20 narrowly tailored to deal with real problems. 

21 (7) While some senders of UCE provide simple 

22 and reliable ways for recipients to reject (or ‘‘opt23 out’’ of) receipt of future UCE from such senders, 

24 other senders provide no such ‘‘opt-out’’ mechanism, 
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1 or refuse to honor the repeated requests of recipients 

2 not to receive UCE. 

3 (8) UCE frequently contains fraudulent claims 

4 or sexually explicit material. UCE with this type of 

5 content merits additional restrictions and penalties. 

6 (9) An increasing number of senders of UCE 

7 purposefully include misleading information or dis8 guise the source of such email, which prevents re9 cipients from recognizing UCE and impedes ISPs’ 

10 ability to identify the source of disruption to their 

11 communications networks. There is no legitimate 

12 reason to falsify the header information accom13 panying commercial email and these actions in some 

14 cases merit criminal penalties. 

15 (10) Such intentionally misleading information 

16 can also evade UCE filtering technology at both an 

17 ISP level as well as at the end user level. Filtering 

18 technology is one of the best methods to provide 

19 comprehensive protection to ISPs’ communications 

20 networks and to the end user. But in the absence of 

21 alternative solutions, UCE filters attempting to 

22 catch more spam are unwittingly blocking an in23 creasing amount of personal and commercial email 

24 that end users actually want and need to receive. 
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1 (11) In making good faith efforts to protect 

2 their citizens from the truly interstate phenomenon 

3 of spam, some States have inadvertently set up mul4 tiple and conflicting regimes governing commercial 

5 email that make it difficult for legitimate commer6 cial emailers to comply but do little to stop egregious 

7 spammers. 

8 (12) Federal Government action is necessary to 

9 preserve the communications networks that sustain 

10 the digital economy and protect consumers. But ulti11 mately, government action can only solve part of the 

12 problem and must be combined with technological 

13 solutions, customer awareness, and trusted sender 

14 cooperative agreements between legitimate senders 

15 and ISPs to effectively curb UCE. 

16 (b) CONGRESSIONAL DETERMINATION OF PUBLIC

17 POLICY.—On the basis of the findings in subsection (a), 

18 the Congress determines that—

19 (1) there is substantial government interest in 

20 regulation of UCE; 

21 (2) senders of UCE should not mislead recipi22 ents or disguise the electronic source of the elec23 tronic mail message, nor send sexually explicit 

24 emails without appropriate warnings; 
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1 (3) recipients of UCE should be able to recog2 nize UCE and have an opportunity to decline to re3 ceive additional UCE from the same source; and 

4 (4) ISPs, recipients of UCE, and others af5 fected by UCE also have a right to use technological 

6 measures to protect their networks and computers 

7 from receiving unwanted or harmful commercial 

8 electronic mail. 

9 TITLE I—PROTECTIONS AGAINST 

10 CERTAIN COMMERCIAL ELEC11 TRONIC MAIL 

12 SEC. 101. RESTRICTIONS ON COMMERCIAL ELECTRONIC 

13 MAIL. 

14 (a) REQUIRED INCLUSIONS IN ALL COMMERCIAL

15 ELECTRONIC MAIL.—

16 (1) IN GENERAL.—No person may initiate in 

17 interstate commerce the transmission, to a covered 

18 computer, of any commercial electronic mail message 

19 unless the message contains all of the following: 

20 (A) IDENTIFICATION.—Clear and con21 spicuous identification that the message is an 

22 advertisement or solicitation.

23 (B) NOTICE OF OPT-OUT OPPORTUNITY.—

24 Clear and conspicuous notice of the opportunity 

25 under subparagraph (C) to decline to receive fu-
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1 ture unsolicited commercial electronic mail mes2 sages from the sender. 

3 (C) MECHANISM TO OPT-OUT.—A func4 tioning return electronic mail address or other 

5 Internet-based mechanism, clearly and con6 spicuously displayed, that—

7 (i) a recipient may use to submit, in 

8 a manner specified by the sender, a reply 

9 electronic mail message or other form of 

10 Internet-based communication requesting 

11 not to receive any future unsolicited com12 mercial electronic mail messages from that 

13 sender at the electronic mail address where 

14 the message was received; and 

15 (ii) remains capable of receiving such 

16 messages or communications for not less 

17 than 30 days after the transmission of the 

18 original message. 

19 (D) STREET ADDRESS.—A valid physical 

20 street address of the sender. 

21 (2) MORE DETAILED REQUESTS POSSIBLE.—In 

22 a commercial electronic mail message complying 

23 with the requirements of paragraph (1)(C), the 

24 sender may also include, in the message, options for 

25 the recipient to submit more detailed requests con-
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1 cerning the types of commercial electronic mail mes2 sages that the recipient does or does not wish to re3 ceive in the future from the sender, based upon 

4 products, services, divisions, organizations, compa5 nies, or other selections. 

6 (3) TEMPORARY INABILITY TO RECEIVE MES7 SAGES.—A return electronic mail address or other 

8 mechanism does not fail to comply with the require9 ments of paragraph (1)(C) if it is unexpectedly and 

10 temporarily unable to receive messages due to tech11 nical or capacity problems, if the problem with re12 ceiving messages is corrected within a reasonable 

13 time period. 

14 (b) PROHIBITION OF TRANSMISSION OF UNSOLIC15 ITED COMMERCIAL ELECTRONIC MAIL AFTER OBJEC16 TION.—If a recipient makes a request to a sender, by 

17 using a mechanism described in subsection (a)(1)(C), not 

18 to receive some or any unsolicited commercial electronic 

19 mail messages from such sender—

20 (1) the sender may not initiate the transmission 

21 to the recipient, during the 3-year period beginning 

22 10 business days after the receipt of such request, 

23 of an unsolicited commercial electronic mail message 

24 that falls within the scope of the request, except that 

25 during the 6-month period beginning on the effective 
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1 date under section 305 such 3-year period shall 

2 begin 20 business days after receipt of such request; 

3 (2) no person acting on behalf of the sender 

4 may initiate the transmission to the recipient, during 

5 the 3-year period beginning 10 business days after 

6 the receipt by such person of such request, of an un7 solicited commercial electronic mail message that 

8 such person knows, should have known, or con9 sciously avoids knowing falls within the scope of the 

10 request, except that during the 6-month period be11 ginning on the effective date under section 305 such 

12 3-year period shall begin 20 business days after re13 ceipt of such request; 

14 (3) no person acting on behalf of the sender 

15 may assist in initiating the transmission to the re16 cipient, through the provision or selection of ad17 dresses to which the message will be transmitted, of 

18 an unsolicited commercial electronic mail message 

19 that such person knows, should have known, or con20 sciously avoids knowing would violate paragraph (1) 

21 or (2); and 

22 (4) the sender may not sell, lease, exchange, or 

23 otherwise transfer or release the electronic mail ad24 dress of the recipient (including through any trans25 action or other transfer involving mailing lists bear-
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1 ing the electronic mail address of the recipient) for 

2 any purpose other than compliance with this Act or 

3 any other provision of law. 

4 (c) PROHIBITION OF TRANSMISSION OF COMMERCIAL

5 ELECTRONIC MAIL WITH FRAUDULENT HEADER INFOR6 MATION.—No person may initiate in interstate commerce 

7 the transmission, to a covered computer, of a commercial 

8 electronic mail message that contains or is accompanied 

9 by header information that is false or misleading (includ10 ing header information that uses a third party’s domain 

11 name without the third party’s permission). For purposes 

12 of this subsection, header information that includes an 

13 originating electronic mail address the use of which in con14 nection with the message was not authorized by a legiti15 mate holder of the address, or access to which was ob16 tained by means of false or fraudulent pretense or rep17 resentations, shall be considered misleading. 

18 (d) PROHIBITION OF TRANSMISSION OF COMMER19 CIAL ELECTRONIC MAIL FROM ILLEGALLY HARVESTED

20 ELECTRONIC MAIL ADDRESSES.—

21 (1) IN GENERAL.—No person may initiate in 

22 interstate commerce the transmission, to a covered 

23 computer, of a commercial electronic mail message 

24 that is prohibited under subsection (a), (b), or (c) or 

25 assist in the origination of such a message through 
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1 the provision or selection of electronic mail addresses 

2 to which the transmission of such message is initi3 ated, if such person knows, should have known, or 

4 consciously avoids knowing, that—

5 (A) the electronic mail address of the re6 cipient was obtained, using an automated 

7 means, from an Internet website or proprietary 

8 online service operated by another person, with9 out the authorization of that person; and 

10 (B) the website or proprietary online serv11 ice from which the address was obtained in12 cluded, at the time the address was obtained, a 

13 notice stating that the operator of such a 

14 website or proprietary online service will not 

15 give, sell, or otherwise transfer addresses main16 tained by such site or service to any other party 

17 for the purpose of initiating, or enabling others 

18 to initiate, commercial electronic mail messages.

19 (2) DISCLAIMER.—Nothing in this subsection 

20 creates an ownership or proprietary interest in such 

21 electronic mail addresses.

22 (e) SAVINGS PROVISION FOR GLBA.—Subsection 

23 (b)(4) of this section shall not apply to prohibit a disclo24 sure by a financial institution of nonpublic personal infor25 mation that is permissible under title V of the Gramm-
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1 Leach-Bliley Act (15 U.S.C. 6801 et seq.) and the regula2 tions thereunder. 

3 SEC. 102. PRIVATE RIGHT OF ACTION FOR PROVIDERS OF 

4 INTERNET ACCESS SERVICE. 

5 (a) AUTHORIZATION.—A provider of Internet access 

6 service adversely affected by—

7 (1) a pattern or practice of violations of section 

8 101(b) or the regulations prescribed under such sec9 tion; or 

10 (2) a violation of subsection (c) or (d) of section 

11 101 or the regulations prescribed under such sub12 section, 

13 may bring, in an appropriate district court of the United 

14 States, either or both of the civil actions under subsection 

15 (b). 

16 (b) CIVIL ACTIONS.—The civil actions under this 

17 subsection are as follows: 

18 (1) INJUNCTION.—An action to enjoin the de19 fendant from further engaging in such pattern or 

20 practice or committing any further violation, as ap21 propriate. 

22 (2) MONETARY DAMAGES.—An action to obtain 

23 damages in an amount equal to the greater of—
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1 (A) the actual monetary loss incurred by 

2 the provider of Internet access service as a re3 sult of such violation; or 

4 (B) the amount determined under sub5 section (c). 

6 (c) STATUTORY DAMAGES.—

7 (1) VIOLATIONS OF PROTECTION FOR RECIPI8 ENTS.—In the case of a violation of section 101(b) 

9 or the regulations prescribed under such section: 

10 (A) DAMAGES PER VIOLATION.—Except as 

11 provided in subparagraphs (B), (C), and (D), 

12 the amount determined under this subsection is 

13 $10 for each separate electronic mail address to 

14 which is initiated, in violation of such sub15 section, the transmission of a commercial elec16 tronic mail message, over the facilities of the 

17 provider of Internet access service. 

18 (B) LIMITATION.—Except as provided in 

19 subparagraphs (C) and (D), for each commer20 cial electronic mail message the transmission of 

21 which is unlawfully initiated and that is ad22 dressed to multiple electronic mail addresses, 

23 the amount determined under subparagraph (A) 

24 may not exceed $500,000. 
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1 (C) TREBLE DAMAGES FOR INTENTIONAL

2 VIOLATIONS.—If the court finds in an action 

3 under this section that the defendant committed 

4 the violation willfully or knowingly, the court 

5 may, in its discretion, increase the amount of 

6 the limitation under subparagraph (B) to an 

7 amount equal to not more than three times the 

8 amount otherwise available under such subpara9 graph, not to exceed $1,500,000. In making a 

10 determination with regard to the amount of an 

11 increase under this subparagraph, the court 

12 shall take into consideration whether violation 

13 involved use of automated means to generate 

14 electronic mail addresses based on permutations 

15 of combining of names, letters, or numbers. 

16 (D) REDUCTION.—

17 (i) IN GENERAL.—Subject to clause 

18 (ii), the court shall reduce the amount 

19 under subparagraph (A) for each violation 

20 if the court determines that—

21 (I) the defendant established and 

22 implemented, with due care, reason23 able practices and procedures in24 tended to prevent such violations; and 
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1 (II) such violations occurred de2 spite good faith efforts to maintain 

3 compliance with such practices and 

4 procedures. 

5 (ii) LIMITATION.—If the amount oth6 erwise determined under this paragraph 

7 exceeds $75,000, the court may not reduce 

8 the amount under subparagraph (A) for 

9 each violation such that the amount deter10 mined under this paragraph is less than 

11 $75,000. 

12 (2) VIOLATIONS OF PROTECTIONS FOR PRO13 VIDERS OF INTERNET ACCESS SERVICE.—In the case 

14 of a violation of subsection (c) or (d) of section 101 

15 or the regulations prescribed under such subsection, 

16 the amount determined under this subsection is $50 

17 for each separate electronic mail address to which 

18 the transmission of a commercial electronic mail 

19 message is initiated in violation of such subsection.

20 SEC. 103. ACTIONS BY STATES. 

21 (a) CIVIL ACTION.—Except as provided in subsection 

22 (c), in any case in which the attorney general of a State, 

23 or an official or agency of a State, has reason to believe 

24 that any person has engaged or is engaging in a pattern 

25 or practice of initiating transmissions to residents of that 
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1 State that violates subsection (c) or (d) of section 101 or 

2 the regulations prescribed under such subsection, the at3 torney general, official, or agency of the State may bring 

4 either or both of the following civil actions on behalf of 

5 its residents: 

6 (1) INJUNCTION.—An action to enjoin the de7 fendant from further engaging in such pattern or 

8 practice. 

9 (2) MONETARY DAMAGES.—An action to obtain 

10 damages on behalf of residents of the State, in an 

11 amount equal to the greater of—

12 (A) the actual monetary loss suffered by 

13 such residents; or 

14 (B) the amount determined under sub15 section (b). 

16 (b) STATUTORY DAMAGES.—

17 (1) PER VIOLATION.—Except as provided in 

18 paragraphs (2) and (3), for purposes of subsection 

19 (a)(2)(B), the amount determined under this sub20 section is $100 for each separate electronic mail ad21 dress to which the transmission of a commercial 

22 electronic mail message is initiated in violation of 

23 the subsections or regulations referred to in sub24 section (a). 
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1 (2) LIMITATION.—For each commercial elec2 tronic mail message the transmission of which is un3 lawfully initiated and that is addressed to multiple 

4 electronic mail addresses, the amount determined 

5 under paragraph (1) may not exceed—

6 (A) except as provided in subparagraph 

7 (B), $1,000,000; or 

8 (B) in any case in which the court in9 creases the amount of the award pursuant to 

10 paragraph (3), $3,000,000. 

11 (3) TREBLE DAMAGES.—Subject to paragraph 

12 (2)(B), in an action under this section, the court 

13 may, in its discretion, increase the amount of the 

14 award to an amount equal to not more than three 

15 times the amount otherwise available under para16 graph (1). In making a determination under this 

17 paragraph, the court shall take into consideration 

18 the nature, circumstances, extent, and gravity of the 

19 violation involved, including the following factors: 

20 (A) The volume of electronic mail involved 

21 in the violation. 

22 (B) The manner in which the violation was 

23 perpetrated. 

24 (C) Whether the violation involved a viola25 tion of any other provision of Federal law. 
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1 (D) The extent of economic gain resulting 

2 from the violation. 

3 (E) Any history of prior violations by the 

4 violator. 

5 (F) Whether violation involved use of auto6 mated means to generate electronic mail ad7 dresses based on permutations of combining of 

8 names, letters, or numbers. 

9 (G) Such other factors as justice may re10 quire. 

11 (c) LIMITATION IN CASES OF FEDERAL ACTION.—

12 If the Commission has commenced an administrative or 

13 civil action for a violation of subsection (c) or (d) of sec14 tion 101 or the regulations prescribed under such sub15 section, with respect to any conduct, or for a violation of 

16 section 622 of title 18, United States Code, with respect 

17 to any conduct, or the Attorney General has commenced 

18 a criminal proceeding or civil action for a violation of sec19 tion 622 of title 18, United States Code, with respect to 

20 any conduct, no State may bring an action under this sec21 tion with respect to the same conduct. 

22 (d) EXCLUSIVE JURISDICTION OF FEDERAL

23 COURTS.—The district courts of the United States, the 

24 United States courts of any territory, and the District 

25 Court of the United States for the District of Columbia 
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1 shall have exclusive jurisdiction over all civil actions 

2 brought under this section. Upon proper application, such 

3 courts shall also have jurisdiction to issue writs of man4 damus, or orders affording like relief, commanding the de5 fendant to comply with the provisions of subsection (c) or 

6 (d) of section 101 or the regulations prescribed under such 

7 section, including the requirement that the defendant take 

8 such action as is necessary to remove the danger of such 

9 violation. Upon a proper showing, a permanent or tem10 porary injunction or restraining order shall be granted 

11 without bond. 

12 (e) NOTICE TO COMMISSION OF STATE ACTION; 

13 INTERVENTION.—The State shall serve prior written no14 tice of any civil action under this section upon the Com15 mission and provide the Commission with a copy of its 

16 complaint, except in any case where such prior notice is 

17 not feasible, in which case the State shall serve such notice 

18 immediately upon instituting such action. The Commis19 sion shall have the right to intervene in the action, upon 

20 so intervening, to be heard on all matters arising in the 

21 action, and to file petitions for appeal. 

22 (f) VENUE AND SERVICE OF PROCESS.—Any civil ac23 tion brought under this section in a district court of the 

24 United States may be brought in any district court of the 

25 United States that meets applicable requirements relating 
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1 to venue under section 1391 of title 28, United States 

2 Code. 

3 (g) INVESTIGATORY POWERS.—For purposes of 

4 bringing any civil action under this section, nothing in this 

5 Act shall prevent the attorney general of a State, or an 

6 official or agency of a State, from exercising the powers 

7 conferred on the attorney general, official, or agency by 

8 the laws of such State to conduct investigations or to ad9 minister oaths or affirmations or to compel the attendance 

10 of witnesses or the production of documentary and other 

11 evidence. 

12 SEC. 104. PROHIBITION OF CLASS ACTIONS; ATTORNEY’S 

13 FEES. 

14 (a) PROHIBITION OF CLASS ACTIONS.—A civil action 

15 arising under section 102 or 103 may not be brought as 

16 a plaintiff class action pursuant to the Federal Rules of 

17 Civil Procedure. 

18 (b) COSTS AND ATTORNEY’S FEES.—In any action 

19 brought under section 102 or 103, the court may, in its 

20 discretion, require an undertaking for the payment of 

21 costs of such action, and assess reasonable costs, including

22 reasonable attorneys’ fees, against any party found in the 

23 action to have committed a violation on which the action 

24 was based. 
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1 SEC. 105. ENFORCEMENT BY FEDERAL TRADE COMMIS2 SION. 

3 The same powers and authorities by which the Fed4 eral Trade Commission and the Attorney General enforce 

5 compliance, by persons subject to the jurisdiction of the 

6 Commission under the Federal Trade Commission Act, 

7 with the provisions of such Act and the regulations issued 

8 thereunder by the Commission, shall be available to the 

9 Commission and the Attorney General to enforce compli10 ance, by all persons, with the provisions of section 101 

11 of this Act and the regulations issued under such section. 

12 For purposes of exercising such powers and authorities to 

13 enforce compliance with rules issued under section 101 of 

14 this Act, such rules shall be treated as having been issued 

15 under section 18 of the Federal Trade Commission Act 

16 (notwithstanding issuance in accordance with section 

17 301(a) of this Act). 

18 SEC. 106. RESTRICTIONS ON OTHER UNSOLICITED TRANS19 MISSIONS. 

20 (a) CLARIFICATION REGARDING LOCATION OF ORIGI21 NATOR.—Section 227(b)(1) of the Communications Act of 

22 1934 (47 U.S.C. 227(b)(1)) is amended, in the matter 

23 preceding subparagraph (A), by inserting ‘‘, or any person 

24 outside the United States if the recipient is within the 

25 United States’’ after ‘‘United States’’. 
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1 (b) CLARIFICATION REGARDING PROHIBITION OF

2 SENDING UNSOLICITED FAX ADVERTISEMENTS.—Section 

3 227(b)(1)(C) of the Communications Act of 1934 (47 

4 U.S.C. 227(b)(1)(C)) is amended by inserting ‘‘, or hire, 

5 employ, contract, or otherwise cause someone else to use,’’ 

6 after ‘‘to use’’. 

7 SEC. 107. EXCLUSIVENESS OF REMEDIES. 

8 The remedies of this title are the exclusive civil rem9 edies for violations of section 101. 

10 TITLE II—AMENDMENTS TO 

11 TITLE 18, UNITED STATES CODE 

12 SEC. 201. CRIMINAL PENALTIES AND RELATED PROVI13 SIONS. 

14 (a) IN GENERAL.—Part I of title 18, United States 

15 Code, is amended by inserting after chapter 29 the fol16 lowing: 

17 ‘‘CHAPTER 30—ELECTRONIC MAIL

‘‘Sec. 

‘‘621. Definitions for chapter. 

‘‘622. Falsifying sender’s identity in commercial electronic mail. 

‘‘623. Failure to place warning labels on unsolicited commercial electronic mail 

containing sexually oriented material. 

‘‘624. Criminal penalties for violation of certain sections. 

‘‘625. Illicit harvesting of electronic mail addresses. 

‘‘626. Civil enforcement of chapter.

18 ‘‘§ 621. Definitions for chapter 

19 ‘‘In this chapter, the following definitions apply: 

20 ‘‘(1) COMMERCIAL ELECTRONIC MAIL MES21 SAGE.—
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1 ‘‘(A) GENERALLY.—The term ‘commercial 

2 electronic mail message’ means an electronic 

3 mail message the primary purpose of which is 

4 the commercial advertisement or promotion of a 

5 product or service. 

6 ‘‘(B) REFERENCE TO COMPANY OR

7 WEBSITE.— The inclusion of a reference to a 

8 commercial entity or a link to the website of a 

9 commercial entity in an electronic mail message 

10 does not, by itself, indicate that the primary 

11 purpose of the message is the commercial ad12 vertisement or promotion of a product or serv13 ice. 

14 ‘‘(2) ELECTRONIC MAIL MESSAGE.—The term 

15 ‘electronic mail message’ means a message as trans16 mitted to an electronic mail address. 

17 ‘‘(3) CONSENT.—

18 ‘‘(A) IN GENERAL.—The term ‘consent’, 

19 when used with respect to a commercial elec20 tronic mail message, means that—

21 ‘‘(i) the recipient has expressly con22 sented to receive the message, either in re23 sponse to a clear and conspicuous request 

24 for such consent or through an affirmative 
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1 request to receive such message or mes2 sages; and 

3 ‘‘(ii) the recipient has not subse4 quently made a request, by using a mecha5 nism described in section 101(a)(1)(C) of 

6 the Reduction in Distribution of Spam Act 

7 of 2003, not to receive such message or 

8 not to receive messages of a scope within 

9 which such message falls. 

10 ‘‘(B) MESSAGES FROM THIRD PARTIES.—

11 Such term includes consent to receipt of a mes12 sage from a third party pursuant to transfer of 

13 the recipient’s electronic mail address, but only 

14 if the recipient was provided with clear and con15 spicuous notice that such transfer could occur. 

16 ‘‘(C) MESSAGES TO PREVIOUS HOLDER OF

17 ELECTRONIC MAIL ADDRESS.—In the case of a 

18 commercial electronic mail message transmitted 

19 or delivered to a recipient at an electronic mail 

20 address that has been reassigned to the recipi21 ent from a previous user, such recipient shall be 

22 considered for purposes of this definition to 

23 have consented to receipt of such messages at

24 such address to the same extent as the previous 

25 authorized user or users of such address unless 
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1 the sender of the message has actual knowledge 

2 that the address has been so reassigned or of 

3 a request under subclause (A)(ii) by the recipi4 ent. 

5 ‘‘(D) TIMING.—Consent shall be consid6 ered to be given, for purposes of this definition, 

7 at the time such consent is received by the 

8 sender. 

9 ‘‘(4) HEADER INFORMATION.—The term ‘head10 er information’ means the source, destination, and 

11 routing information attached to an electronic mail 

12 message, including the originating domain name and 

13 originating electronic mail address. 

14 ‘‘(5) PROTECTED COMPUTER.—The term ‘pro15 tected computer’ means a computer described in sec16 tion 1030(e)(2)(B). 

17 ‘‘(6) STATE.—The term ‘State’ includes the 

18 District of Columbia, Puerto Rico, and any other 

19 territory or possession of the United States. 

20 ‘‘(7) UNSOLICITED COMMERCIAL ELECTRONIC

21 MAIL MESSAGE.—The term ‘unsolicited commercial 

22 electronic mail message’ means any commercial elec23 tronic mail message that is transmitted to a recipi24 ent without the recipient’s prior consent.
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1 ‘‘§ 622. Falsifying sender’s identity in commercial 

2 electronic mail. 

3 ‘‘(a) IN GENERAL.—Whoever intentionally sends to 

4 a covered computer a commercial electronic mail message 

5 that the sender knows falsifies the sender’s identity shall 

6 be punished as provided in section 624. 

7 ‘‘(b) METHODS OF FALSIFYING IDENTITY.—For the 

8 purposes of subsection (a), an identity may be falsified by 

9 any means, and the following conduct shall be considered 

10 to be a falsification of identity: 

11 ‘‘(1) By accompanying the message with header 

12 information that is false as to the identity of the 

13 sender (including header information that uses a 

14 third party’s domain name without the third party’s 

15 permission) or as to the routing of the message. 

16 ‘‘(2) By accessing a covered computer or com17 puter network without authorization or exceeding 

18 authorized access and, by means of such conduct, 

19 sending, from or through that computer or network, 

20 the message that falsifies the identity of the sender. 

21 ‘‘(3) Registering, using information that fal22 sifies the identity of the registrant, for multiple elec23 tronic mail accounts or domain names, and sending 

24 the message from those accounts, or from or adver25 tising those domain names, but failing to include in 
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1 a conspicuous form in the message the identity and 

2 current contact information of the sender. 

3 ‘‘(c) AFFIRMATIVE DEFENSE.—It is an affirmative 

4 defense to a prosecution for an offense under subsection 

5 (a), which the defendant must prove by a preponderance 

6 of the evidence, that the defendant sent fewer than 100 

7 messages of the type prohibited by that subsection during 

8 any 30-day period. 

9 ‘‘§ 623. Failure to place warning labels on unsolicited 

10 commercial electronic mail containing 

11 sexually oriented material 

12 ‘‘(a) IN GENERAL.—Whoever knowingly sends an un13 solicited commercial electronic mail message that includes 

14 sexually oriented material to a covered computer and 

15 knowingly fails to include in or associated with that elec16 tronic mail message the marks or notices prescribed by 

17 the Federal Trade Commission under this section shall be 

18 punished as provided in section 624. 

19 ‘‘(b) PRESCRIPTION OF MARKS AND NOTICES.—The 

20 Federal Trade Commission shall prescribe marks or no21 tices to be included in or associated with unsolicited com22 mercial electronic mail that contains a sexually oriented 

23 advertisement, in order to inform the recipient of that fact 

24 and to facilitate filtering of such electronic mail. 
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1 ‘‘(c) DEFINITION.—In this section, the term ‘sexually 

2 oriented material’ means any material that depicts sexu3 ally explicit conduct (as that term is defined in section 

4 2256), unless the depiction constitutes a small and insig5 nificant part of the whole, the remainder of which is not 

6 primarily devoted to sexual matters. 

7 ‘‘§ 624. Criminal penalties for violation of certain sec8 tions 

9 ‘‘(a) PUNISHMENT.—The punishment for an offense 

10 under section 622 or 623 is—

11 ‘‘(1) for an offense—

12 ‘‘(A) occurring after the defendant was 

13 convicted for another offense under this chap14 ter; or 

15 ‘‘(B) involving 10,000 or more electronic 

16 mail messages sent within a 30-day period; 

17 a fine under this title or imprisonment for not more than 

18 2 years, or both; and 

19 ‘‘(2) in any other case, a fine under this title 

20 or imprisonment for not more than one year, or 

21 both. 

22 ‘‘(b) FACTORS TO BE CONSIDERED BY SENTENCING

23 COMMISSION.—In establishing sentencing guidelines for 

24 offenses to which this section applies, the United States 
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1 Sentencing Commission shall consider the following fac2 tors: 

3 ‘‘(1) The volume of commercial electronic mail 

4 involved in the violation. 

5 ‘‘(2) The manner in which the violation was 

6 perpetrated. 

7 ‘‘(3) Whether the violation involved a violation 

8 of any other Federal law. 

9 ‘‘(4) The extent of economic gain resulting from 

10 the violation. 

11 ‘‘(5) Any history of prior violations by the viola12 tor. 

13 ‘‘(6) Such other factors as justice may require. 

14 ‘‘§ 625. Illicit harvesting of electronic mail addresses 

15 ‘‘Whoever knowingly and through the direct or indi16 rect use of a covered computer uses an automated means 

17 to obtain electronic mail addresses from an Internet 

18 website or proprietary online service operated by another 

19 person, without the authorization of that person and uses 

20 those addresses in another violation of this chapter, shall 

21 be fined under this title or imprisoned not more than one 

22 year, or both.

23 ‘‘§ 626. Civil enforcement 

24 ‘‘(a) CIVIL ACTION BY PROVIDERS.—A provider of 

25 Internet access service (as defined in section 231(e) of the 
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1 Communications Act of 1934 (47 U.S.C. 231(e)(4)) who 

2 is adversely affected by illicit conduct described in this 

3 chapter may, in a civil action, recover any appropriate re4 lief, including actual damages or, at the election of the 

5 plaintiff, statutory damages of $500 for each electronic 

6 mail message involved in the illicit conduct. A class action 

7 may not be brought for a claim under this subsection. 

8 ‘‘(b) ADDITIONAL ENFORCEMENT TOOLS FOR THE

9 DEPARTMENT OF JUSTICE.—

10 ‘‘(1) CIVIL PENALTY.—The Attorney General 

11 may, in a civil action against any person who en12 gages in illicit conduct described in this chapter, re13 cover a civil penalty of not to exceed $500 for each 

14 electronic mail message involved in the illicit con15 duct. 

16 ‘‘(2) INTERVENTION.—The Justice Department 

17 may also intervene in any civil action brought under 

18 subsection (a) or subsection (d). 

19 ‘‘(c) REMEDIES UNDER THE FEDERAL TRADE COM20 MISSION ACT.—The same powers and authorities by which 

21 the Federal Trade Commission and the Attorney General 

22 enforce compliance, by persons subject to the jurisdiction 

23 of the Commission under the Federal Trade Commission 

24 Act, with the provisions of such Act and the regulations 

25 issued thereunder by the Commission, shall be available 
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1 to the Commission and the Attorney General, respectively, 

2 for use against all persons who engage in illicit conduct 

3 described in this chapter with respect to that conduct. 

4 ‘‘(d) STATE ATTORNEYS GENERAL.—Unless the At5 torney General or the Federal Trade Commission has com6 menced a criminal prosecution or civil proceedings under 

7 subsection (b) or (c) with respect to the same conduct, 

8 the chief law enforcement officer of a State may, in a civil 

9 action, obtain appropriate relief for illicit conduct de10 scribed in this chapter, including statutory damages of 

11 $500 for each electronic mail message sent to a covered 

12 computer in that State involved in that conduct. 

13 ‘‘(e) EXCLUSIVENESS OF REMEDIES.—The civil rem14 edies of this section are the exclusive civil remedies for 

15 illicit conduct described in this chapter. 

16 ‘‘(f) EXCLUSIVE ORIGINAL JURISDICTION IN FED17 ERAL COURTS.—The United States district courts shall 

18 have exclusive original jurisdiction over any civil action 

19 commenced under this section. 

20 ‘‘(g) DEFINITION.—As used in this section, the term 

21 ‘illicit conduct’ means a violation, without regard to the 

22 affirmative defense provided in section 622(c)’’. 

23 (b) CLERICAL AMENDMENT.—The table of chapters 

24 at the beginning of part I of title 18, United States Code, 
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1 is amended by inserting after the item relating to chapter 

2 29 the following new item:

‘‘30. Electronic mail .......................................................................... 621’’.

3 (c) EFFECTIVE DATE.—The amendments made by 

4 this title shall take effect 120 days after the date of the 

5 enactment of this title.

6 TITLE III—GENERAL 

7 PROVISIONS 

8 SEC. 301. REGULATIONS AND REPORT. 

9 (a) REGULATIONS.—

10 (1) IN GENERAL.—Not later than 12 months 

11 after the date of the enactment of this Act, the 

12 Commission shall issue regulations to implement sec13 tions 101, 105, and 304. In issuing such regulations, 

14 the Commission shall consult with the Federal Com15 munications Commission. Such regulations shall be 

16 issued in accordance with section 553 of title 5, 

17 United States Code. 

18 (2) LIMITATION.—Paragraph (1) may not be 

19 construed to authorize the Commission to establish 

20 a requirement pursuant to section 101(a)(1)(A) to 

21 include any specific words, characters, marks, or la22 bels in a commercial electronic mail message, or to 

23 include the identification required by section 

24 101(a)(1)(A) in any particular part of such a mail 

25 message (such as the subject line or body). 
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1 (b) REPORT REGARDING PREVENTING UNWANTED

2 COMMERCIAL ELECTRONIC MAIL MESSAGES.—Within 

3 240 days after the date of the enactment of this Act, the 

4 Commission and the Federal Communications Commis5 sion shall jointly submit a report to the Congress regard6 ing the need to protect the rights of users of electronic 

7 mail to avoid receiving unwanted commercial electronic 

8 mail. The report shall—

9 (1) analyze the effectiveness and efficiency, for 

10 preventing unwanted commercial electronic mail 

11 messages, of requiring that each such message in12 clude specific words, characters, marks, or labels to 

13 identify the message as a commercial electronic mail 

14 message; 

15 (2) compare and evaluate alternative methods 

16 and procedures (individually or in combination with 

17 each other and the method described in paragraph 

18 (1)) for their effectiveness in protecting such rights 

19 and in terms of their cost and other advantages and 

20 disadvantages, including the extent to which such 

21 methods and procedures can facilitate screening and 

22 removal of unwanted commercial electronic mail 

23 messages; 

24 (3) compare and evaluate—
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1 (A) alternative methods for persons ag2 grieved by receipt of unwanted commercial elec3 tronic mail messages to report such receipt and 

4 submit such messages to the Commission; and 

5 (B) alternative means of notifying the pub6 lic of the availability of such methods; 

7 (4) evaluate whether there is a need—

8 (A) for additional Commission authority to 

9 further expand or restrict the electronic mail 

10 messages which are commercial or unsolicited, 

11 for purposes of this Act; or 

12 (B) to further expand or restrict the prohi13 bitions, limitations, definitions, or exceptions of 

14 this Act, including prohibiting subject headings 

15 in commercial electronic mail messages that are 

16 misleading regarding the contents or subject 

17 matter of the message; and 

18 (5) propose legislation to effectuate such spe19 cific expansions or restrictions, if a need for any ex20 pansions or restrictions is determined pursuant to 

21 paragraph (4). 

22 SEC. 302. EFFECT ON OTHER LAWS. 

23 (a) FEDERAL LAW.—

24 (1) OBSCENITY AND EXPLOITATION OF CHIL25 DREN.—Nothing in this Act may be construed to im-
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1 pair the enforcement of section 223 or 231 of the 

2 Communications Act of 1934 (47 U.S.C. 223 or 

3 231, respectively), chapter 71 (relating to obscenity) 

4 or 110 (relating to sexual exploitation of children) of 

5 title 18, United States Code, or any other Federal 

6 criminal statute. 

7 (2) COMMUNICATIONS ACT OF 1934.—Except for 

8 the amendments made by section 106, nothing in 

9 this Act may be construed to affect the applicability 

10 of any provision of title II of the Communications 

11 Act of 1934. 

12 (b) STATE LAW.—This Act preempts any law of a 

13 State, or of a political subdivision of a State, that ex14 pressly regulates the form of, required inclusions in, the 

15 manner or timing of sending, or the form, manner, or ef16 fect of recipient requests regarding receipt of, commercial 

17 electronic mail, but such laws preempted shall not include 

18 any law regulating falsification in commercial electronic 

19 mail of the identity of the sender, of authentication infor20 mation relating to the sender, of header or routing infor21 mation relating to such mail, or of subject line informa22 tion. 

23 (c) NO EFFECT ON POLICIES OF PROVIDERS OF

24 INTERNET ACCESS SERVICE.—Nothing in this Act shall 

25 be construed to have any effect on the lawfulness or un-
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1 lawfulness, under any other provision of law, of the adop2 tion, implementation, or enforcement by a provider of 

3 Internet access service of a policy of declining to transmit, 

4 route, relay, handle, receive, or store certain types of elec5 tronic mail messages. 

6 SEC. 303. STUDY OF EFFECTS OF ACT. 

7 (a) IN GENERAL.—Not later than 24 months after 

8 the date of the enactment of this Act, the Commission and 

9 the Federal Communications Commission shall jointly 

10 submit a report to the Congress that provides a detailed 

11 analysis of the effectiveness and enforcement of the provi12 sions, definitions, and exceptions of title I and this title 

13 and the need (if any) for the Congress to modify such pro14 visions, definitions, and exceptions. 

15 (b) REQUIRED ANALYSIS.—The report required by 

16 subsection (a) shall include an analysis of the extent to 

17 which technological and marketplace developments, includ18 ing changes in the nature of the devices through which 

19 consumers access their electronic mail messages, may af20 fect the practicality and effectiveness of the provisions of 

21 title I and this title. 

22 SEC. 304. DEFINITIONS. 

23 For purposes of this Act: 
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1 (1) BUSINESS DAY.—The term ‘‘business day’’ 

2 means any day other than a Saturday, Sunday, or 

3 legal public holiday. 

4 (2) COMMERCIAL ELECTRONIC MAIL MES5 SAGE.—

6 (A) IN GENERAL.—The term ‘‘commercial 

7 electronic mail message’’ means any electronic 

8 mail message the primary purpose of which is 

9 the commercial advertisement or promotion of a 

10 product or service. 

11 (B) REFERENCE TO COMPANY OR

12 WEBSITE.—The inclusion of a reference to a 

13 commercial entity or a link to the website of a 

14 commercial entity in an electronic mail message 

15 does not, by itself, indicate that the primary 

16 purpose of the message is the commercial ad17 vertisement or promotion of a product or serv18 ice. 

19 (C) CLARIFICATION REGARDING CERTAIN

20 MESSAGES.—Such term does not include any 

21 electronic mail message having a primary pur22 pose other than that specified in subparagraph 

23 (A), including any electronic mail message the 

24 primary purpose of which is to facilitate, com-
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1 plete, confirm, or provide or request informa2 tion concerning—

3 (i) a specific commercial transaction 

4 between the sender and the recipient that 

5 the recipient has previously agreed to enter 

6 into with the sender; 

7 (ii) an existing commercial relation8 ship, formed with or without an exchange 

9 of consideration, involving the ongoing pur10 chase or use by the recipient of products or 

11 services offered by the sender; or 

12 (iii) an existing employment relation13 ship or related benefit plan or service. 

14 (3) COMMISSION.—The term ‘‘Commission’’ 

15 means the Federal Trade Commission. 

16 (4) CONSENT.—

17 (A) IN GENERAL.—The term ‘‘consent’’, 

18 when used with respect to a commercial elec19 tronic mail message, means that—

20 (i) the recipient has expressly con21 sented to receive the message, either in re22 sponse to a clear and conspicuous request 

23 for such consent or through an affirmative 

24 request to receive such message or mes25 sages; and 
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1 (ii) the recipient has not subsequently 

2 made a request, by using a mechanism de3 scribed in section 101(a)(1)(C), not to re4 ceive such message or not to receive mes5 sages of a scope within which such mes6 sage falls. 

7 (B) MESSAGES FROM THIRD PARTIES.—

8 Such term includes consent to receipt of a mes9 sage from a third party pursuant to transfer of 

10 the recipient’s electronic mail address, but only 

11 if the recipient was provided with clear and con12 spicuous notice that such transfer could occur. 

13 (C) MESSAGES TO PREVIOUS HOLDER OF

14 ELECTRONIC MAIL ADDRESS.—In the case of a 

15 commercial electronic mail message transmitted 

16 or delivered to a recipient at an electronic mail 

17 address that has been reassigned to the recipi18 ent from a previous user, such recipient shall be 

19 considered for purposes of this Act to have con20 sented to receipt of such messages at such ad21 dress to the same extent as the previous author22 ized user or users of such address unless the 

23 sender of the message has actual knowledge 

24 that the address has been so reassigned or of
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1 a request under subclause (A)(ii) by the recipi2 ent. 

3 (D) TIMING.—Consent shall be considered 

4 to be given, for purposes of this Act, at the 

5 time such consent is received by the sender. 

6 (5) COVERED COMPUTER.—The term ‘‘covered 

7 computer’’ means a computer that is used in inter8 state or foreign commerce or communication, includ9 ing a computer located outside the United States 

10 that is used in a manner that affects interstate or 

11 foreign commerce or communication of the United 

12 States. 

13 (6) DOMAIN NAME.—The term ‘‘domain name’’ 

14 means any alphanumeric designation which is reg15 istered with or assigned by any domain name reg16 istrar, domain name registry, or other domain name 

17 registration authority as part of an electronic ad18 dress on the Internet. 

19 (7) ELECTRONIC MAIL ADDRESS.—The term 

20 ‘‘electronic mail address’’ means a destination, com21 monly expressed as a string of characters, which in22 cludes a unique user name or mailbox (commonly re23 ferred to as the ‘‘local part’’) and may also include 

24 a reference to an Internet domain (commonly re-
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1 ferred to as the ‘‘domain part’’), to which an elec2 tronic mail message can be transmitted or delivered. 

3 (8) ELECTRONIC MAIL MESSAGE.—The term 

4 ‘‘electronic mail message’’ means a message as 

5 transmitted to an electronic mail address. 

6 (9) HEADER INFORMATION.—The term ‘‘header 

7 information’’ means the source, destination, and 

8 routing information attached to an electronic mail 

9 message, including the originating domain name and 

10 originating electronic mail address. 

11 (10) INITIATE.—The term ‘‘initiate’’, when 

12 used with respect to an electronic mail message, 

13 means to originate such message or to procure the 

14 origination of such message, but shall not include 

15 actions that constitute routine conveyance of such 

16 message. 

17 (11) INTERNET.—The term ‘‘Internet’’ has the 

18 meaning given that term in the Internet Tax Free19 dom Act (47 U.S.C. 151 note). 

20 (12) INTERNET ACCESS SERVICE.—The term 

21 ‘‘Internet access service’’ has the meaning given that 

22 term in section 231(e)(4) of the Communications 

23 Act of 1934 (47 U.S.C. 231(e)(4)). 

24 (13) RECIPIENT.—The term ‘‘recipient’’, when 

25 used with respect to a commercial electronic mail 
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1 message, means an authorized user of the electronic 

2 mail address to which the message was transmitted 

3 or delivered. If a recipient of a commercial electronic 

4 mail message has 1 or more electronic mail address5 es in addition to the address to which the message 

6 was transmitted or delivered, the recipient shall be 

7 treated as a separate recipient with respect to each 

8 such address. If an electronic mail address is reas9 signed to a new user, the new user shall not be 

10 treated as a recipient of any commercial electronic 

11 mail message transmitted or delivered to that ad12 dress before it was reassigned. 

13 (14) ROUTINE CONVEYANCE.—The term ‘‘rou14 tine conveyance’’ means the transmission, routing, 

15 relaying, handling, or storing, through an automatic 

16 technical process, of an electronic mail message for 

17 which another person has identified recipients or 

18 provided the recipient addresses. 

19 (15) SENDER.—The term ‘‘sender’’, when used 

20 with respect to a commercial electronic mail mes21 sage, means a person who initiates such a message 

22 and whose product, service, or Internet web site is 

23 advertised or promoted by the message, or such per24 son’s successor in interest. 
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1 (16) UNSOLICITED COMMERCIAL ELECTRONIC

2 MAIL MESSAGE.—The term ‘‘unsolicited commercial 

3 electronic mail message’’ means any commercial 

4 electronic mail message that is transmitted to a re5 cipient without the recipient’s prior consent. 

6 SEC. 305. EFFECTIVE DATE. 

7 Titles I and III of this Act, and the amendments 

8 made by such titles, shall take effect 120 days after the 

9 date of the enactment of this Act.

Æ