I 

108TH CONGRESS 

1ST SESSION H. R. 2515

To prevent unsolicited commercial electronic mail. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 18, 2003

Mrs. WILSON of New Mexico (for herself, Mr. GREEN of Texas, Mr. PICKERING, Mr. DINGELL, Mrs. CUBIN, Mr. CONYERS, Mr. SHADEGG, Mr. 

MARKEY, Mr. PITTS, Mr. BOUCHER, Mr. WALDEN of Oregon, Ms. 

ESHOO, Mr. TERRY, Mr. STUPAK, Mr. PENCE, Ms. MCCARTHY of Missouri, Mr. FRELINGHUYSEN, Mr. STRICKLAND, Mr. MCINNIS, Mrs. 

CAPPS, Ms. SCHAKOWSKY, Mr. RODRIGUEZ, Mr. BACA, Mr. FRANK of 

Massachusetts, Mr. CRAMER, Mr. SKELTON, and Mr. LANGEVIN) 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 ‘‘Anti-Spam Act of 2003’’. 

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

7 this Act is as follows:
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Sec.1.Short title and table of contents. 

Sec.2.Congressional findings and policy. 

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.Attorney’s fees. 

Sec.105.Enforcement by Federal Trade Commission. 

Sec.106.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 effectiveness and enforcement. 

Sec.304.Definitions. 

Sec.305.Effective date.

1 SEC. 2. CONGRESSIONAL FINDINGS AND POLICY. 

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

3 (1) There is a right of free speech on the Inter4 net. 

5 (2) The Internet has increasingly become a crit6 ical mode of global communication and now presents 

7 unprecedented opportunities for the development and 

8 growth of global commerce and an integrated world9 wide economy. In order for global commerce on the 

10 Internet to reach its full potential, individuals and 

11 entities using the Internet and other online services 

12 should be prevented from engaging in activities that 

13 prevent other users and Internet service providers 

14 from having a reasonably predictable, efficient, and 

15 economical online experience. 
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1 (3) Commercial electronic mail can be an im2 portant mechanism through which businesses adver3 tise and contact consumers in the online environ4 ment. 

5 (4) The receipt of unwanted commercial elec6 tronic mail may result in costs to recipients who 

7 cannot refuse to accept such mail and who incur 

8 costs for the storage of such mail, or for the time 

9 spent accessing, reviewing, and discarding such mail, 

10 or for both. 

11 (5) Unwanted commercial electronic mail may 

12 impose significant monetary costs on Internet access 

13 services, businesses, and educational and nonprofit 

14 institutions that carry and receive such mail, as 

15 there is a finite volume of mail that such providers, 

16 businesses, and institutions can handle without fur17 ther investment. The sending of such mail is increas18 ingly and negatively affecting the quality of service 

19 provided to customers of Internet access service, and 

20 shifting costs from the sender of the advertisement 

21 to the Internet access service. 

22 (6) While some senders of commercial electronic 

23 mail messages provide simple and reliable ways for 

24 recipients to reject (or ‘‘opt-out’’ of) receipt of unso25 licited commercial electronic mail from such senders 
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1 in the future, other senders provide no such ‘‘opt2 out’’ mechanism, or refuse to honor the requests of 

3 recipients not to receive electronic mail from such 

4 senders in the future, or both. 

5 (7) An increasing number of senders of com6 mercial electronic mail purposefully disguise the 

7 source of such mail so as to prevent recipients from 

8 responding to such mail quickly and easily. 

9 (8) Many senders of unsolicited commercial 

10 electronic mail collect or harvest electronic mail ad11 dresses of potential recipients without the knowledge 

12 of those recipients and in violation of the rules or 

13 terms of service of the database from which such ad14 dresses are collected. 

15 (9) Because recipients of unwanted commercial 

16 electronic mail are often unable to avoid the receipt 

17 of such mail through reasonable means, such mail 

18 may invade the privacy of recipients and infringe on 

19 their privacy rights.

20 (10) In legislating against certain abuses on the 

21 Internet, Congress should be very careful to avoid 

22 infringing in any way upon constitutionally protected 

23 rights, including the rights of assembly, free speech, 

24 and privacy.
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1 (b) CONGRESSIONAL DETERMINATION OF PUBLIC

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

3 the Congress determines that—

4 (1) there is substantial government interest in 

5 regulation of commercial electronic mail; 

6 (2) Consumers and Internet service providers 

7 should not be compelled to bear the costs of un8 wanted commercial electronic mail; and 

9 (3) recipients of commercial electronic mail 

10 have a right to decline to receive or have their chil11 dren receive unwanted commercial electronic mail. 

12 TITLE I—PROTECTIONS AGAINST 

13 CERTAIN COMMERCIAL ELEC14 TRONIC MAIL 

15 SEC. 101. RESTRICTIONS ON COMMERCIAL ELECTRONIC 

16 MAIL. 

17 (a) REQUIRED INCLUSIONS IN COMMERCIAL ELEC18 TRONIC MAIL.—

19 (1) INCLUSION OF IDENTIFIER, OPT-OUT, E20 MAIL ADDRESS, AND PHYSICAL ADDRESS.—No per21 son may initiate in or affecting interstate commerce 

22 the transmission, to a covered computer, of any com23 mercial electronic mail message unless the message 

24 contains all of the following: 
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1 (A) IDENTIFICATION.—Clear and con2 spicuous identification that the message is a 

3 commercial electronic mail message. 

4 (B) NOTICE OF OPT-OUT.—Clear and con5 spicuous notice of the opportunity under sub6 paragraph (C) to decline to receive future com7 mercial electronic mail messages from the send8 er or any covered affiliate of the sender. 

9 (C) E-MAIL ADDRESS OR OTHER MECHA10 NISM TO OPT-OUT.—A functioning return elec11 tronic mail address or other Internet-based 

12 mechanism, clearly and conspicuously displayed, 

13 that—

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

15 a manner specified by the sender, a reply 

16 electronic mail message or other form of 

17 Internet-based communication requesting 

18 not to receive any future commercial elec19 tronic mail messages from that sender, or 

20 any covered affiliate of the sender, at the 

21 electronic mail address where the message 

22 was received; 

23 (ii) in the case of any such other 

24 Internet-based mechanism, when so used, 

25 directly submits such a request or clearly 
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1 and conspicuously provides a manner for 

2 submitting such a request; and 

3 (iii) remains capable of receiving such 

4 messages or communications for no less 

5 than 30 days after the transmission of the 

6 original message. 

7 (D) STREET ADDRESS.—A valid physical 

8 street address of the sender. 

9 (2) MORE DETAILED REQUESTS POSSIBLE.—In 

10 a message complying with the requirements of para11 graph (1)(C), the sender of a commercial electronic 

12 mail message may also include, in the message, op13 tions for the recipient to submit more detailed re14 quests concerning the types of commercial electronic 

15 mail messages that the recipient does or does not 

16 wish to receive in the future from the sender, or a 

17 covered affiliate of the sender, based upon products, 

18 services, divisions, organizations, companies, or 

19 other selections. 

20 (3) TEMPORARY INABILITY TO RECEIVE MES21 SAGES.—A return electronic mail address or other 

22 mechanism does not fail to satisfy the requirements 

23 of paragraph (1)(C) if it is unexpectedly and tempo24 rarily unable to receive messages due to a problem 

25 beyond the control of the sender, if the problem with 
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1 receiving messages is corrected within a reasonable 

2 time period. 

3 (b) PROHIBITION OF TRANSMISSION OF COMMERCIAL

4 ELECTRONIC MAIL AFTER OBJECTION.—

5 (1) IN GENERAL.—If a recipient makes a re6 quest to a sender, using a mechanism provided pur7 suant to subsection (a)(1)(C), not to receive some or 

8 any commercial electronic mail messages from such 

9 sender, or any covered affiliate of the sender, except 

10 as provided in paragraph (2)—

11 (A) the sender, or any covered affiliate of 

12 the sender, may not initiate the transmission to 

13 the recipient, during the 5-year period begin14 ning the shortest period of time after the re15 ceipt of such request as is reasonable to allow 

16 effectuation of such request, as the Commission 

17 shall determine, of any commercial electronic 

18 mail message that falls within the scope of the 

19 request, except that during any period begin20 ning upon the effective date under section 305 

21 and ending upon the determination by the Com22 mission regarding such shortest reasonable pe23 riod, such 5-year period shall begin 10 days 

24 after receipt of such request; 
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1 (B) no person acting on behalf of the send2 er or any covered affiliate of the sender may 

3 initiate the transmission to the recipient, during 

4 the 5-year period beginning the shortest period 

5 of time after the receipt by such person of such 

6 request as is reasonable to allow effectuation of 

7 such request, as the Commission shall deter8 mine, of any commercial electronic mail mes9 sage that falls within the scope of the request, 

10 except that during any period beginning upon 

11 the effective date under section 305 and ending 

12 upon the determination by the Commission re13 garding such shortest reasonable period, such 

14 5-year period shall begin 10 days after receipt 

15 of such request; 

16 (C) no person acting on behalf of the send17 er, or any covered affiliate of the sender, may 

18 assist in initiating the transmission to the re19 cipient, through the provision or selection of ad20 dresses to which the message will be trans21 mitted, of any commercial electronic mail mes22 sage that would violate subparagraph (A) or 

23 (B); and 

24 (D) the sender, or any covered affiliate of 

25 the sender, may not sell, lease, exchange, or 
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1 otherwise transfer or release the electronic mail 

2 address of the recipient (including through any 

3 transaction or other transfer involving mailing 

4 lists bearing the electronic mail address of the 

5 recipient) for any purpose other than compli6 ance with this Act or any other provision of 

7 law. 

8 (2) SUBSEQUENT CONSENT TO COMMERCIAL

9 ELECTRONIC MAIL MESSAGES.—Notwithstanding a 

10 recipient’s most recent request described in para11 graph (1) to a sender, such request shall not be con12 sidered to have been made for purposes of such 

13 paragraph, with respect to a commercial electronic 

14 mail message if—

15 (A) the message falls within the scope of 

16 an express and unambiguous invitation or con17 sent granted by the recipient subsequent to 

18 such request made; and

19 (B) the recipient had clear and con20 spicuous notice, at the time such invitation or 

21 consent was granted, of—

22 (i) the fact that the recipient was 

23 granting the invitation or consent; 

24 (ii) the scope of the invitation or con25 sent, including what types of commercial 
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1 electronic mail messages would be covered 

2 by the invitation or consent and what 

3 senders or types of senders, if any, other 

4 than the party to whom the invitation or 

5 consent was communicated would be cov6 ered by the invitation or consent; and 

7 (iii) the mechanism under subsection 

8 (a)(1)(C). 

9 (c) PROHIBITION OF COMMERCIAL ELECTRONIC

10 MAIL WITH FALSE OR MISLEADING HEADER INFORMA11 TION OR SUBJECT HEADINGS.—No person may initiate 

12 in or affecting interstate commerce the transmission, to 

13 a covered computer, of any commercial electronic mail 

14 message or any commercial transactional electronic mail 

15 message, that—

16 (1) contains or is accompanied by header infor17 mation that is false or misleading (including header 

18 information that uses a third party’s domain name 

19 without the third party’s permission); for purposes 

20 of this paragraph, header information that includes 

21 an originating electronic mail address the use of 

22 which in connection with the message was not au23 thorized by a legitimate holder of the address, or ac24 cess to which was obtained by means of false or 
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1 fraudulent pretense or representations, shall be con2 sidered misleading; or 

3 (2) contains a subject heading that would be 

4 likely to mislead a recipient, acting reasonably under 

5 the circumstances, about a material fact regarding 

6 the contents or subject matter of the message. 

7 (d) PROHIBITION OF TRANSMISSION OF CERTAIN

8 COMMERCIAL ELECTRONIC MAIL FROM ILLEGALLY HAR9 VESTED ELECTRONIC MAIL ADDRESSES.—

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

11 affecting interstate commerce the transmission, to a 

12 covered computer, of a commercial electronic mail 

13 message that is prohibited under subsection (a), (b), 

14 or (c), or assist in the origination of such a message 

15 through the provision or selection of electronic mail 

16 addresses to which the transmission of such message 

17 is initiated, if—

18 (A) the electronic mail address of the re19 cipient was obtained, using an automated 

20 means, from an Internet website or proprietary 

21 online service operated by another person; and 

22 (B) the website or proprietary online serv23 ice from which the address was obtained in24 cluded, at the time the address was obtained, a 

25 notice stating that the operator of such a 
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1 website or proprietary online service will not 

2 give, sell, or otherwise transfer addresses main3 tained by such site or service to any other party 

4 for the purpose of initiating, or enabling others 

5 to initiate, commercial electronic mail messages. 

6 (2) DISCLAIMER.—Nothing in this subsection 

7 creates an ownership or proprietary interest in such 

8 electronic mail addresses. 

9 (e) PROHIBITION OF DICTIONARY ATTACKS OF COM10 MERCIAL ELECTRONIC MAIL.—No person may—

11 (1) initiate in or affecting interstate commerce 

12 the transmission, to a covered computer, of any com13 mercial electronic mail message or any commercial 

14 transactional electronic mail message, if the elec15 tronic mail address of the recipient was generated 

16 messages by use of automated means based on per17 mutations of combining names, letters, or numbers 

18 for the purpose of sending commercial electronic 

19 mail; or 

20 (2) assist in initiating, in or affecting interstate 

21 commerce, such a message through such generation 

22 of electronic mail addresses to which the trans23 mission of the message is initiated. 
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1 (f) REQUIREMENT TO PLACE WARNING LABELS ON

2 COMMERCIAL ELECTRONIC MAIL CONTAINING SEXUALLY

3 ORIENTED MATERIAL.—

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

5 affecting interstate commerce the transmission, to a 

6 covered computer, of any commercial electronic mail 

7 message that includes sexually oriented material 

8 and—

9 (A) fail to include in subject heading for 

10 the electronic mail message the marks or no11 tices prescribed by the Commission under this 

12 subsection; or 

13 (B) fail to provide that the matter in the 

14 message that is initially viewable to the recipi15 ent, when the message is opened by any recipi16 ent and absent any further actions by the re17 cipient, includes only—

18 (i) to the extent required or author19 ized pursuant to paragraph (2), any such 

20 marks or notices; 

21 (ii) the information required to be in22 cluded in the message pursuant to sub23 paragraphs (B) and (C) of subsection 

24 (a)(1); and 
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1 (iii) instructions on how to access, or 

2 a mechanism to access, the sexually ori3 ented material. 

4 (2) PRESCRIPTION OF MARKS AND NOTICES.—

5 Not later than 120 days after the date of the enact6 ment of this Act, the Commission shall prescribe 

7 marks or notices to be included in or associated with 

8 commercial electronic mail that contains sexually 

9 oriented material, in order to inform the recipient of 

10 that fact and to facilitate filtering of such electronic 

11 mail. 

12 (3) DEFINITION.—In this subsection, the term 

13 ‘‘sexually oriented material’’ means any material 

14 that depicts sexually explicit conduct (as that term 

15 is defined in section 2256 of title 18, United States 

16 Code), unless the depiction constitutes a small and 

17 insignificant part of the whole, the remainder of 

18 which is not primarily devoted to sexual matters.

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

20 INTERNET ACCESS SERVICE. 

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

22 service adversely affected by—

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

24 101(a), subparagraph (A), (B), or (C) of section 
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1 101(b)(1), or the regulations prescribed under such 

2 section or subparagraph, or 

3 (2) a violation of subsection (c), (d), (e), or (f) 

4 of section 101 or the regulations prescribed under 

5 such subsection, 

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

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

8 (b). 

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

10 subsection are as follows: 

11 (1) INJUNCTION.—An action to enjoin the de12 fendant from further engaging in such pattern or 

13 practice or committing any further violation, as ap14 propriate. 

15 (2) DAMAGES.—An action to obtain damages in 

16 an amount equal to the greater of—

17 (A) the actual damages incurred by the 

18 provider of Internet access service as a result of 

19 such violation; or 

20 (B) the amount determined under sub21 section (c). 

22 (c) STATUTORY DAMAGES.—

23 (1) VIOLATIONS OF REQUIRED INCLUSION AND

24 OPT-OUT PROVISIONS.—In the case of a violation de25 scribed in subsection (a)(1) of this section: 
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1 (A) DAMAGES PER VIOLATION.—Except as 

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

3 the amount determined under this subsection is 

4 $10 for each separate electronic mail address to 

5 which is initiated, in violation of such sub6 section, the transmission of a commercial elec7 tronic mail message, over the facilities of the 

8 provider of Internet access service. 

9 (B) LIMITATION.—Except as provided in 

10 subparagraphs (C) and (D), for each commer11 cial electronic mail message the transmission of 

12 which is unlawfully initiated and that is ad13 dressed to multiple electronic mail addresses, 

14 the amount determined under subparagraph (A) 

15 may not exceed $500,000. 

16 (C) TREBLE DAMAGES FOR INTENTIONAL

17 VIOLATIONS.—If the court finds in an action 

18 for such a violation that the defendant com19 mitted the violation willfully or knowingly, the 

20 court may, in its discretion, increase the 

21 amount of the limitation under subparagraph 

22 (B) to an amount equal to not more than three 

23 times the amount otherwise available under 

24 such subparagraph, not to exceed $1,500,000. 

25 (D) REDUCTION.—
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1 (i) IN GENERAL.—Subject to clause 

2 (ii), the court shall reduce the amount 

3 under subparagraph (A) for each violation 

4 if the court determines that—

5 (I) the defendant established and 

6 implemented, with due care, reason7 able practices and procedures in8 tended to prevent such violations; and 

9 (II) such violations occurred de10 spite good faith efforts to maintain 

11 compliance with such practices and 

12 procedures. 

13 (ii) LIMITATION.—If the amount oth14 erwise determined under this paragraph 

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

16 the amount under subparagraph (A) of 

17 this paragraph for each violation such that 

18 the amount determined under this para19 graph is less than $75,000. 

20 (2) VIOLATIONS OF HEADER INFORMATION, 

21 SUBJECT HEADING, HARVESTING, DICTIONARY AT22 TACK, AND SEXUALLY ORIENTED MATERIAL PROVI23 SIONS.—In the case of a violation described in sub24 section (a)(2) of this section, the amount determined 

25 under this subsection is $100 for each separate elec-
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1 tronic mail address to which the transmission of an 

2 electronic mail message is initiated in violation of 

3 such subsection. 

4 SEC. 103. ACTIONS BY STATES. 

5 (a) CIVIL ACTION.—In any case in which the attor6 ney general of a State has reason to believe that the inter7 ests of the residents of that State have been or are being 

8 threatened or adversely affected because any person has 

9 engaged or is engaging in—

10 (1) a pattern or practice of initiating trans11 missions to residents of that State that violates sub12 section (a) or (b) of section 101 or the regulations 

13 prescribed under such section, or 

14 (2) a violation of subsection (c), (d), (e), or (f) 

15 of section 101 or the regulations prescribed under 

16 such section, 

17 the State, as parens patriae, may bring either or both of 

18 the civil actions under subsection (b) on behalf of its resi19 dents. 

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

21 subsection are as follows: 

22 (1) INJUNCTION.—An action to enjoin the de23 fendant from further engaging in such pattern or 

24 practice or committing any further violation, as ap25 propriate. 
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1 (2) DAMAGES.—An action to obtain damages 

2 on behalf of residents of the State, in an amount 

3 equal to the greater of—

4 (A) the actual damages suffered by such 

5 residents; or 

6 (B) the amount determined under sub7 section (c). 

8 (c) STATUTORY DAMAGES.—

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

10 paragraph (2), for purposes of subsection (a)(2)(B), 

11 the amount determined under this subsection is 

12 $500 for each separate electronic mail address to 

13 which the transmission of an electronic mail message 

14 is initiated in violation of section 101 or the regula15 tions prescribed under such section. 

16 (2) TREBLE DAMAGES FOR INTENTIONAL VIO17 LATIONS.—In an action under this section, the court 

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

19 award to an amount equal to not more than three

20 times the amount otherwise available under para21 graph (1) if the court determines that the defendant 

22 willfully or knowingly violated section 101 or the 

23 regulations prescribed under such section. 

24 (d) EXCLUSIVE JURISDICTION OF FEDERAL

25 COURTS.—The district courts of the United States, the 
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1 United States courts of any territory, and the District 

2 Court of the United States for the District of Columbia 

3 shall have exclusive jurisdiction over all civil actions 

4 brought under this section. Upon proper application, such 

5 courts shall also have jurisdiction to issue writs of man6 damus, or orders affording like relief, commanding the de7 fendant to comply with the provisions of section 101 or 

8 the regulations prescribed under such section, including 

9 the requirement that the defendant take such action as 

10 is necessary to remove the danger of such violation. Upon 

11 a proper showing, a permanent or temporary injunction 

12 or restraining order against the defendant shall be granted 

13 without bond. 

14 (e) RIGHTS OF COMMISSION.—

15 (1) NOTICE OF STATE ACTION AND INTERVEN16 TION.—The State shall serve prior written notice of 

17 any civil action under this section upon the Commis18 sion and provide the Commission with a copy of its 

19 complaint, except in any case where such prior no20 tice is not feasible, in which case the State shall 

21 serve such notice immediately upon instituting such 

22 action. Upon receiving a notice regarding a civil ac23 tion, the Commission shall have the right to inter24 vene in the action and, upon so intervening, to be 
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1 heard on all matters arising in the action, and to file 

2 petitions for appeal. 

3 (2) LIMITATION IN CASES OF ACTION BY COM4 MISSION.—Whenever a civil action has been insti5 tuted by or on behalf of the Commission for a viola6 tion of section 101 or the regulations prescribed 

7 under such section, no State may, during the pend8 ency of such action instituted by or on behalf of the 

9 Commission, institute a civil action under this sec10 tion against any defendant named in the complaint 

11 in such action for any such violation alleged in such 

12 complaint. 

13 (f) VENUE AND SERVICE OF PROCESS.—Any civil ac14 tion brought under this section in a district court of the 

15 United States may be brought in the district in which the 

16 defendant is found, is an inhabitant, or transacts business 

17 or wherever venue is proper under section 1391 of title 

18 28, United States Code. Process in such an action may 

19 be served in any district in which the defendant is an in20 habitant or in which the defendant may be found. 

21 (g) INVESTIGATORY POWERS.—For purposes of 

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

23 Act shall prevent the attorney general of a State from ex24 ercising the powers conferred on the attorney general by 

25 the laws of such State to conduct investigations or to ad-
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1 minister oaths or affirmations or to compel the attendance 

2 of witnesses or the production of documentary and other 

3 evidence. 

4 (h) ACTIONS BY OTHER STATE OFFICIALS.—

5 (1) VIOLATIONS OF STATE LAW.—Nothing in 

6 this section shall prohibit an authorized State offi7 cial from proceeding in State court on the basis of 

8 an alleged violation of any civil or criminal statute 

9 of such State. 

10 (2) AUTHORIZED STATE OFFICERS.—In addi11 tion to actions brought by an attorney general of a 

12 State under subsection (a) of this section, such an 

13 action may be brought by officers of such State who 

14 are authorized by the State to bring actions in such 

15 State on behalf of its residents. 

16 SEC. 104. ATTORNEY’S FEES. 

17 In any action brought under section 102 or 103, the 

18 court may, in its discretion, require an undertaking for 

19 the payment of costs of such action, and assess reasonable 

20 costs, including reasonable attorneys’ fees, against any 

21 party found in the action to have committed a violation 

22 on which the action 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. EXCLUSIVENESS OF REMEDIES. 

19 The remedies of this title are the exclusive civil rem20 edies for violations of section 101. 
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1 TITLE II—AMENDMENTS TO 

2 TITLE 18, UNITED STATES CODE 

3 SEC. 201. CRIMINAL PENALTIES AND RELATED PROVI4 SIONS. 

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

6 Code, is amended by inserting after chapter 29 the fol7 lowing: 

8 ‘‘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 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.

9 ‘‘§ 621. Definitions for chapter 

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

11 ‘‘(1) COMMERCIAL ELECTRONIC MAIL MES12 SAGE.—

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

14 electronic mail message’ means any electronic 

15 mail message that contains a commercial adver16 tisement or promotion of a product or service. 

17 ‘‘(B) REFERENCE TO COMPANY.—The in18 clusion of a reference to a commercial entity in 

19 an electronic mail message does not, by itself, 

20 constitute a commercial advertisement or pro21 motion of a product or service.
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1 ‘‘(2) ELECTRONIC MAIL MESSAGE.—The term 

2 ‘electronic mail message’ means a message as trans3 mitted to an electronic mail address. 

4 ‘‘(3) HEADER INFORMATION.—The term ‘head5 er information’ means the source, destination, and 

6 routing information attached to an electronic mail 

7 message, including the originating domain name and 

8 originating electronic mail address. 

9 ‘‘(4) PROTECTED COMPUTER.—The term ‘pro10 tected computer’ means a computer described in sec11 tion 1030(e)(2)(B). 

12 ‘‘(5) STATE.—The term ‘State’ includes the 

13 District of Columbia, Puerto Rico, and any other 

14 territory or possession of the United States.

15 ‘‘§ 622. Falsifying sender’s identity in commercial 

16 electronic mail 

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

18 one or more covered computers, during any 30-day period, 

19 10 or more commercial electronic mail messages that the 

20 sender knows falsify the sender’s identity shall be pun21 ished as provided in section 624. 

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

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

24 any means, and the following conduct shall be considered 

25 to be a falsification of identity: 
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1 ‘‘(1) By accompanying the message with header 

2 information that is false as to the identity of the 

3 sender (including header information that uses a 

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

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

6 ‘‘(2) By accessing a covered computer or com7 puter network without authorization or exceeding 

8 authorized access and, by means of such conduct, 

9 sending, from or through that computer or network, 

10 the message that falsifies the identity of the sender. 

11 ‘‘(3) Registering, using information that fal12 sifies the identity of the registrant, for multiple elec13 tronic mail accounts or domain names, and sending 

14 the message from those accounts, or from or adver15 tising those domain names, but failing to include in 

16 a conspicuous form in the message the identity and 

17 current contact information of the sender. 

18 ‘‘§ 623. Failure to place warning labels on commercial 

19 electronic mail containing sexually ori20 ented materials 

21 ‘‘(a) IN GENERAL.—Whoever knowingly sends a com22 mercial electronic mail message that includes sexually ori23 ented material to a covered computer and knowingly—

24 ‘‘(1) fails to include in subject heading for the 

25 electronic mail message the marks or notices pre-
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1 scribed by the Federal Trade Commission under sec2 tion 101(f)(2) of the Anti-Spam Act of 2003, or 

3 ‘‘(2) fails to provide that the matter in that 

4 message that is initially viewable to the recipient, 

5 when that message is opened by any recipient and 

6 absent any further actions by the recipient, includes 

7 only—

8 ‘‘(A) to the extent required or authorized 

9 pursuant to such section 101(f)(2), any such 

10 marks or notices, 

11 ‘‘(B) the information required to be in12 cluded in the message pursuant to subpara13 graphs (B) and (C) of section 101(a)(1) of the 

14 Anti-Spam Act of 2003, and 

15 (C) instructions on how to access, or a 

16 mechanism to access, the sexually oriented ma17 terial, 

18 shall be punished as provided in section 624 of this chap19 ter. 

20 ‘‘(b) DEFINITION.—In this section, the term ‘sexually 

21 oriented material’ means any material that depicts sexu22 ally explicit conduct (as that term is defined in section 

23 2256), unless the depiction constitutes a small and insig24 nificant part of the whole, the remainder of which is not 

25 primarily devoted to sexual matters. 
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1 ‘‘§ 624. Criminal penalties for violation of certain sec2 tions 

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

4 under section 622 or 623 is—

5 ‘‘(1) for an offense—

6 ‘‘(A) occurring after the defendant was 

7 convicted for another offense under this chap8 ter; or 

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

10 mail messages sent within a 30-day period; 

11 a fine under this title or imprisonment for not more 

12 than 2 years, or both; and 

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

14 or imprisonment for not more than one year, or 

15 both. 

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

17 COMMISSION.—In establishing sentencing guidelines for 

18 offenses to which this section applies, the United States 

19 Sentencing Commission shall consider the following fac20 tors: 

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

22 involved in the violation. 

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

24 perpetrated. 

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

26 of any other Federal law. 
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1 ‘‘(4) The extent of economic gain resulting from 

2 the violation. 

3 ‘‘(5) Any history of prior violations by the viola4 tor. 

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

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

7 ‘‘Whoever knowingly and through the direct or indi8 rect use of a covered computer uses an automated means 

9 to obtain electronic mail addresses from an Internet 

10 website or proprietary online service operated by another 

11 person, without the authorization of that person and uses 

12 those addresses in another violation of this chapter, shall 

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

14 year, or both.

15 ‘‘§ 626. Civil enforcement 

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

17 Internet access service (as defined in section 231(e) of the 

18 Communications Act of 1934 (47 U.S.C. 231(e)(4)) who 

19 is adversely affected by a violation of this chapter may, 

20 in a civil action, recover any appropriate relief, including 

21 actual damages or, at the election of the plaintiff, statu22 tory damages of $500 for each electronic mail message 

23 involved in the violation. 

24 ‘‘(b) ADDITIONAL ENFORCEMENT TOOLS FOR THE

25 DEPARTMENT OF JUSTICE.—
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1 ‘‘(1) CIVIL PENALTY.—The Attorney General 

2 may, in a civil action against any person for a viola3 tion of this chapter, recover a civil penalty of not to 

4 exceed $500 for each electronic mail message in5 volved in the violation. 

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

7 may also intervene in any civil action brought under 

8 subsection (a) or subsection (d). 

9 ‘‘(c) REMEDIES UNDER THE FEDERAL TRADE COM10 MISSION ACT.—The same powers and authorities by which 

11 the Federal Trade Commission and the Attorney General 

12 enforce compliance, by persons subject to the jurisdiction 

13 of the Commission under the Federal Trade Commission 

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

15 issued thereunder by the Commission, shall be available 

16 to the Commission and the Attorney General, respectively, 

17 for use against all persons who violate this chapter with 

18 respect to such violations. 

19 ‘‘(d) STATE ATTORNEYS GENERAL.—Unless the At20 torney General or the Federal Trade Commission has com21 menced a criminal prosecution or civil proceedings under 

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

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

24 action, obtain appropriate relief for a violation of this 

25 chapter, including statutory damages of $500 for each 
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1 electronic mail message sent to a covered computer in that 

2 State involved in that violation. 

3 ‘‘(e) EXCLUSIVENESS OF REMEDIES.—The civil rem4 edies of this section are the exclusive civil remedies for 

5 violations of this chapter. 

6 ‘‘(f) EXCLUSIVE ORIGINAL JURISDICTION IN FED7 ERAL COURTS.—The United States district courts shall 

8 have exclusive original jurisdiction over any civil action 

9 commenced under this section.’’. 

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

11 at the beginning of part I of title 18, United States Code, 

12 is amended by inserting after the item relating to chapter 

13 29 the following new item:

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

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

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

16 enactment of this title.

17 TITLE III—GENERAL 

18 PROVISIONS 

19 SEC. 301. REGULATIONS AND REPORT. 

20 (a) REGULATIONS.—

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

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

23 Commission shall issue any regulations necessary to 

24 implement sections 101, 105, and 304. In issuing 

25 any such regulations, the Commission shall consult 
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1 with the Federal Communications Commission. Any 

2 such regulations shall be issued in accordance with 

3 section 553 of title 5, United States Code. 

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

5 construed to authorize the Commission to establish 

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

7 include any specific words, characters, marks, or la8 bels in a commercial electronic mail message, or to 

9 include the identification required by section 

10 101(a)(1)(A) in any particular part of such a mail 

11 message (such as the subject line or body). 

12 (b) REPORT REGARDING PREVENTING UNSOLICITED

13 COMMERCIAL ELECTRONIC MAIL MESSAGES.—Within 

14 240 days after the date of the enactment of this Act, the 

15 Commission, after consultation with the Federal Commu16 nications Commission, shall submit a report to the Con17 gress regarding the need to protect the rights of users of 

18 electronic mail to avoid receiving unsolicited commercial 

19 electronic mail. The report shall—

20 (1) analyze the effectiveness and efficiency, for 

21 preventing unsolicited commercial electronic mail 

22 messages, of requiring that each such message in23 clude specific words, characters, marks, or labels to 

24 identify the message as such a message; 
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1 (2) compare and evaluate alternative methods 

2 and procedures (individually or in combination with 

3 each other and the method described in paragraph 

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

5 and in terms of their cost and other advantages and 

6 disadvantages, including the extent to which such 

7 methods and procedures can facilitate screening and 

8 removal of unsolicited commercial electronic mail 

9 message; 

10 (3) compare and evaluate—

11 (A) alternative methods for persons ag12 grieved by receipt of unsolicited commercial 

13 electronic mail messages to report such receipt 

14 and submit such messages to the Commission; 

15 and 

16 (B) alternative means of notifying the pub17 lic of the availability of such methods; 

18 (4) evaluate whether there is a need—

19 (A) for additional Commission authority to 

20 further expand or restrict the electronic mail 

21 messages which are commercial, for purposes of 

22 this Act; or 

23 (B) to further expand or restrict the prohi24 bitions, limitations, definitions, or exceptions of 

25 this Act; and 
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1 (5) propose legislation to effectuate such spe2 cific expansions or restrictions, if a need for any ex3 pansions or restrictions is determined pursuant to 

4 paragraph (4). 

5 SEC. 302. EFFECT ON OTHER LAWS. 

6 (a) FEDERAL LAW.—

7 (1) OBSCENITY AND EXPLOITATION OF CHIL8 DREN.—Nothing in this Act may be construed to im9 pair the enforcement of section 223 or 231 of the 

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

11 231, respectively), chapter 71 (relating to obscenity) 

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

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

14 criminal statute. 

15 (2) COMMUNICATIONS ACT OF 1934.—Nothing 

16 in this Act may be construed to affect the applica17 bility of any provision of title II of the Communica18 tions Act of 1934. 

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

20 State, or of a political subdivision of a State, that ex21 pressly regulates the form of, required inclusions in, the 

22 manner or timing of sending, or the form, manner, or ef23 fect of recipient requests regarding receipt of, commercial 

24 electronic mail, but such laws preempted shall not include 

25 any law regulating falsification in commercial electronic
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1 mail of the identity of the sender, of authentication infor2 mation relating to the sender, of header or routing infor3 mation relating to such mail, or of subject line informa4 tion. 

5 (c) NO EFFECT ON POLICIES OF PROVIDERS OF

6 INTERNET ACCESS SERVICE.—Nothing in this Act shall 

7 be construed to have any effect on the lawfulness or un8 lawfulness, under any other provision of law, of the adop9 tion, implementation, or enforcement by a provider of 

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

11 route, relay, handle, receive, or store certain types of elec12 tronic mail messages. 

13 SEC. 303. STUDY OF EFFECTIVENESS AND ENFORCEMENT. 

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

15 the date of the enactment of this Act, the Commission, 

16 after consultation with the Federal Communications Com17 mission, shall submit a report to the Congress that pro18 vides a detailed analysis of the effectiveness and enforce19 ment of the provisions, definitions, and exceptions of this 

20 Act and the need (if any) for the Congress to modify such 

21 provisions, definitions, and exceptions. 

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

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

24 which technological and marketplace developments, includ25 ing changes in the nature of the devices through which 
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1 consumers access their electronic mail messages, may af2 fect the practicality and effectiveness of the provisions of 

3 this Act. 

4 SEC. 304. DEFINITIONS. 

5 For purposes of this Act: 

6 (1) AFFILIATE.—The term ‘‘affiliate’’ means, 

7 with respect to an entity, any other entity that—

8 (A) controls, is controlled by, or is under 

9 common control with such entity; and 

10 (B) provides marketing information to, re11 ceives marketing information from, or shares 

12 marketing information with such entity. 

13 (2) BUSINESS DAY.—The term ‘‘business day’’ 

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

15 legal public holiday. 

16 (3) COMMERCIAL ELECTRONIC MAIL MES17 SAGE.—

18 (A) IN GENERAL.—Except as provided in 

19 subparagraph (B), the term ‘‘commercial elec20 tronic mail message’’ means any electronic mail 

21 message that contains a commercial advertise22 ment or promotion of a product or service, ex23 cept that such term does not include any com24 mercial transactional electronic mail message. 
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1 (B) REFERENCE TO COMPANY.—The inclu2 sion of a reference to a commercial entity in an 

3 electronic mail message does not, by itself, con4 stitute a commercial advertisement or pro5 motion of a product or service. 

6 (4) COMMERCIAL TRANSACTIONAL ELECTRONIC

7 MAIL MESSAGE.—The term ‘‘commercial trans8 actional electronic mail message’’ means any elec9 tronic mail message the primary purpose of which 

10 is—

11 (A) to facilitate, complete, or confirm a 

12 specific commercial transaction, made with or 

13 without exchange of consideration, between the 

14 sender and the recipient that the recipient has 

15 previously agreed to enter into with the sender; 

16 or 

17 (B) to provide—

18 (i) a billing statement or information; 

19 (ii) debt collection information; 

20 (iii) product recall information; 

21 (iv) warranty information; 

22 (v) safety or security information; 

23 (vi) an actual update or modification 

24 to a product or service; or 
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1 (vii) information requested by the re2 cipient, 

3 relating to such specific commercial transaction 

4 or the product or service involved in the trans5 action. 

6 (5) COMMISSION.—The term ‘‘Commission’’ 

7 means the Federal Trade Commission. 

8 (6) COVERED AFFILIATE.—The term ‘‘covered 

9 affiliate’’ means, with respect to a commercial elec10 tronic mail message, any affiliate of the sender of 

11 such message to which such sender has previously 

12 sold, leased, exchanged, or otherwise transferred or 

13 released the electronic mail address of the recipient. 

14 (7) COVERED COMPUTER.—The term ‘‘covered 

15 computer’’ means a computer that is used in or af16 fects interstate or foreign commerce or communica17 tion, including a computer located outside the 

18 United States that is used in a manner that affects 

19 interstate or foreign commerce of the United States. 

20 (8) DOMAIN NAME.—The term ‘‘domain name’’ 

21 means any alphanumeric designation which is reg22 istered with or assigned by any domain name reg23 istrar, domain name registry, or other domain name 

24 registration authority as part of an electronic ad25 dress on the Internet.
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1 (9) ELECTRONIC MAIL ADDRESS.—

2 (A) IN GENERAL.—The term ‘‘electronic 

3 mail address’’ means a destination (commonly 

4 expressed as a string of characters) to which 

5 electronic mail can be sent or delivered. 

6 (B) INCLUSION.—In the case of the Inter7 net, such term may include an electronic mail 

8 address consisting of a user name or mailbox 

9 (commonly referred to as the ‘‘local part’’) and 

10 a reference to an Internet domain (commonly 

11 referred to as the ‘‘domain part’’). 

12 (10) ELECTRONIC MAIL MESSAGE.—The term 

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

14 transmitted to an electronic mail address. 

15 (11) HEADER INFORMATION.—The term ‘‘head16 er information’’ means the source, destination, and 

17 routing information attached to an electronic mail 

18 message, including the originating domain name and 

19 originating electronic mail address. 

20 (12) INITIATE.—The term ‘‘initiate’’, when 

21 used with respect to an electronic mail message, 

22 means to originate such message or to procure the 

23 origination of such message. 

24 (13) INITIATOR.—The term ‘‘initiator’’, when 

25 used with respect to an electronic mail message, 
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1 means the person who initiates such message. Such 

2 term does not include a provider of an Internet ac3 cess service, or any other person, whose role with re4 spect to the message is limited to the transmission, 

5 routing, relaying, handling, or storing, through an 

6 automatic technical process, of a message originated 

7 by others. 

8 (14) INTERNET.—The term ‘‘Internet’’ has the 

9 meaning given that term in section 231(e)(3) of the 

10 Communications Act of 1934 (47 U.S.C. 231(e)(3)). 

11 (15) INTERNET ACCESS SERVICE.—The term 

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

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

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

15 (16) RECIPIENT.—The term ‘‘recipient’’, when 

16 used with respect to an electronic mail message, 

17 means the addressee of such message. If an ad18 dressee of an electronic mail message has one or 

19 more electronic mail addresses in addition to the ad20 dress to which the message was addressed, the ad21 dressee shall be treated as a separate recipient with 

22 respect to each such address. 

23 (17) SENDER.—The term ‘‘sender’’, when used 

24 with respect to an electronic mail message, means—

25 (A) the person—
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1 (i) who is the initiator of such mes2 sage; and 

3 (ii) whose product, service, or Internet 

4 web site is advertised or promoted by the 

5 message; 

6 (B) such person’s successor in interest; or 

7 (C) any entity created by or on behalf of 

8 such person with the intent of avoiding the re9 quirements or prohibitions in section 101. 

10 SEC. 305. EFFECTIVE DATE. 

11 (a) IN GENERAL.—Titles I and III of this Act, and 

12 the amendments made by such titles, shall take effect 120 

13 days after the date of the enactment of this Act. 

14 (b) EFFECT OF REGULATORY AUTHORITY.—The au15 thority in this Act or the amendments made by this Act 

16 to issue regulations may not be construed to affect the 

17 effectiveness of any provision of this Act or the amend18 ments made by this Act under subsection (a) of this sec19 tion or section 201(c), except to the extent that a deter20 mination of the Commission is specifically required by 

21 such provision.

Æ