107TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 107–41, Part II

ANTI-SPAMMING ACT OF 2001

JUNE 5, 2001.—Ordered to be printed

Mr. SENSENBRENNER, from the Committee on the Judiciary,

submitted the following

R E P O R T

together with

ADDITIONAL VIEWS

[To accompany H.R. 718]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill

(H.R. 718) to protect individuals, families, and Internet service providers from unsolicited and unwanted electronic mail, having considered the same, reports favorably thereon with an amendment

and recommends that the bill as amended do pass.

CONTENTS

Page

The Amendment ...................................................................................................... 2

Purpose and Summary ............................................................................................ 3

Background and Need for the Legislation ............................................................. 3

Congressional Research Service Memorandum Regarding the Constitutionality of the Hart Amendment ....................................................................... 10

Hearings ................................................................................................................... 15

Committee Consideration ........................................................................................ 16

Votes of the Committee ........................................................................................... 16

Committee Oversight Findings ............................................................................... 18

Performance Goals and Objectives ......................................................................... 18

New Budget Authority and Tax Expenditures ...................................................... 18

Congressional Budget Office Cost Estimate .......................................................... 18

Constitutional Authority Statement ...................................................................... 20

Section-by-Section Analysis .................................................................................... 20

Changes in Existing Law Made by the Bill, as Reported ..................................... 21

Markup Transcript .................................................................................................. 23

Additional Views ...................................................................................................... 103
2

The amendment is as follows:

Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Anti-Spamming Act of 2001’’.

SEC. 2. SPAMMING PROHIBITIONS.

(a) IN GENERAL.—Part I of title 18, United States Code, is amended by inserting

after chapter 29 the following:

‘‘CHAPTER 30—ELECTRONIC MAIL

‘‘Sec.

‘‘621. Unsolicited commercial electronic mail containing fraudulent transmission information.

‘‘622. Warning labels for electronic mail containing advertisements harmful to minors.

‘‘§ 621. Unsolicited commercial electronic mail containing fraudulent transmission information

‘‘(a) Whoever intentionally initiates in one or more transactions the transmission

of 10 or more unsolicited commercial electronic mail messages to one or more protected computers in the United States, knowing that each such message contains

or is accompanied by header information that is materially false or misleading as

to the identity of the person initiating the transmission shall be fined under this

title, and in the case of an offense under this section which occurs after conviction

for a prior offense under this section, shall be so fined or imprisoned not more than

one year, or both.

‘‘(b) As used in this section—

‘‘(1) the term ‘commercial electronic mail message’ means an electronic mail

message the primary purpose of which is to advertise or promote, for a commercial purpose, a product or service (including content on an Internet website);

‘‘(2) the term ‘header information’ means the source, destination, and routing

information, including the originating domain name and originating electronic

mail address; and

‘‘(3) the term ‘protected computer’ has the meaning given that term in section

1030(e)(2) of this title.

‘‘(c)(1) A provider of Internet access service, if otherwise permitted by the laws or

rules of a court of a State, may bring in an appropriate court of that State, or, if

such laws or rules do not so permit, may bring in an appropriate Federal court, an

action to recover for actual or statutory damages, as provided in paragraph (2), and

for costs, as provided in paragraph (4).

‘‘(2) A person committing a violation of subsection (a) is liable to a provider of

Internet access service for either—

‘‘(A) the actual damages suffered by the provider of Internet access service;

or

‘‘(B) statutory damages, as provided in paragraph (3).

‘‘(3) At any time before final judgment in an action, a provider of Internet access

service may elect to recover an award of statutory damages for each violation of subsection (a) in the sum of $5 per violation, not to exceed a total of $1,000,000, except

that, during any one-year period for which the defendant has transmitted in excess

of 20,000,000 unsolicited commercial electronic mail messages, no such limit on liability shall exist.

‘‘(4) In any action brought under paragraph (1), the court may award to a prevailing party reasonable litigation expenses incurred by that party, including reasonable attorney’s fees, as a part of the costs awarded under section 1920 of title

28 against any party found in that action to have committed a violation of subsection (a).

‘‘§ 622. Warning labels for electronic mail containing advertisements harmful to minors

‘‘(a)(1) The Attorney General shall prescribe marks or notices to be included in

electronic mail that contains a sexually oriented advertisement in order to inform

the recipient of that fact.

‘‘(2) Whoever, in any electronic mail that is carried on an instrumentality in or

affecting interstate or foreign commerce, knowingly includes a sexually oriented advertisement but does not include in such electronic mail the marks or notices prescribed by the Attorney General under this section shall be fined under this title

or imprisoned not more than one year, or both.

‘‘(b) As used in this section, the term ‘sexually oriented advertisement’ means any

advertisement that depicts, in actual or simulated form, or explicitly describes, in
3

a predominantly sexual context, human genitalia, any act of natural or unnatural

sexual intercourse, any act of sadism or masochism, or any other erotic subject directly related to the foregoing, but material otherwise within the definition of this

subsection shall be deemed not to constitute a sexually oriented advertisement if it

constitutes only a small and insignificant part of the whole, the remainder of which

is not primarily devoted to sexual matters.’’. (b) CLERICAL AMENDMENT.—The table of chapters at the beginning of part I of

title 18, United States Code, is amended by inserting after the item relating to

chapter 29 the following new item:

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

SEC. 3. STUDY OF EFFECTS OF UNSOLICITED COMMERCIAL ELECTRONIC MAIL.

Not later than 18 months after the date of the enactment of this Act, the Attorney

General shall submit a report to the Congress that provides a detailed analysis of

the effectiveness and enforcement of the provisions of this Act and the need (if any)

for the Congress to modify such provisions.

PURPOSE AND SUMMARY

The amendment in the nature of a substitute adopted by the

Committee completely replaces the text of H.R. 718. It is a bipartisan targeted approach to address two specific problems relating

to unsolicited commercial electronic mail (‘‘UCE’’). First, the

amendment makes it illegal to conceal the identity of the sender

of the e-mail. This misdemeanor prohibition is necessary because

unscrupulous individuals conceal what is known as point-of-origin,

routing or header information in order to defeat the preferences

and filtering mechanisms employed by Internet service providers

(‘‘ISPs’’) and computer users. Furthermore, those who peddle

schemes to defraud individuals, such as get-rich-quick schemes,

and transmit pornography via e-mail often conceal the origin of the

e-mail in furtherance of their unscrupulous desire to swindle consumers or entice them to purchase pornography over the Internet.

There is no legitimate reason to falsify the header information accompanying commercial e-mail.

The second problem addressed by the amendment is unsolicited

pornography sent via e-mail. This problem is addressed by the

Hart amendment which was offered by Representative Melissa

Hart. This provision directs the Attorney General to prescribe

marks to be included in all pornographic e-mail. The amendment

is modeled after a long-standing postal statute, 39 U.S.C. § 3010,

which mandates that marks be included on the envelope of pornographic material sent through the United States Postal Service.

This provision will allow users to delete pornographic material

without viewing its contents and will assist parents in screening or

filtering out unwanted pornographic e-mail, thereby protecting children from receiving and viewing pornography contained or accompanying e-mail. In short, a recipient of a pornographic e-mail will

now have the ability to utilize technology to automatically do the

equivalent of throwing out unopened junk mail.

BACKGROUND AND NEED FOR THE LEGISLATION

JURISDICTION AND PROCEDURE

H.R. 718, the ‘‘Unsolicited Commercial Electronic Mail Act of

2001’’ was introduced by Rep. Heather Wilson on February 14,

2001, and was referred to the Committee on Energy and Commerce

and the Committee on the Judiciary for a period to be subsequently

determined by the Speaker. The Committee on Energy and Com-
4

1See Letter from the Honorable F. James Sensenbrenner to the Honorable Dennis Hastert, Jr., March 29, 2001. 2See Unsolicited Commercial Electronic Mail Act of 2001, H. Rept. 107–41, Part 1 (April 4,

2001) (hereinafter ‘‘Commerce Report’’). 3P.L. 106–229.

merce ordered the bill, as amended, reported on March 28, 2001.

On March 29, 2001, the Committee on the Judiciary requested that

its referral be extended to June 5, 2001.1 The Committee on Energy and Commerce subsequently filed its report on April 4, 2001.2

On that day, the Speaker granted an extension to the Judiciary

Committee ending not later than June 5, 2001.

H.R. 718 was referred to the House Judiciary Committee because

a number of provisions fall within the Committee’s Rule X jurisdiction, including:

• Section 1—Short Title;

• Section 2—Congressional Findings and Policy;

• Section 3—Definitions—including paragraphs (4), (5), (8), (9),

and (12);

• Section 4—Criminal Penalty for Unsolicited Commercial

Electronic Mail Containing Fraudulent Routing Information;

• Section 5(c)—Internet Service Provider Immunity Provision;

• Section 6(a)(5)—Enforcement by Court Order;

• Section 6(b)—Private Right of Action;

• Section 7—Effect on Other Laws;

• Section 8—Study of Effects of Unsolicited Commercial Electronic Mail;

• Section 9—Separability; and

• Section 10—Effective Date.

The amendment in the nature of a substitute adopted by the

House Committee on Commerce contained several additional provisions that fall within the Committee’s jurisdiction, including, a prohibition on class action lawsuits (section 6(b)(4)) and a provision

authorizing state attorneys general to file suit on behalf of their

citizens (section 6(c)). The Committee also has pending before it

H.R. 1017, the ‘‘Anti-Spamming Act of 2001,’’ introduced by Rep.

Bob Goodlatte, and H.R. 95, the ‘‘Unsolicited Commercial Electronic Mail Act of 2001,’’ introduced by Rep. Gene Green. The Committee reviewed H.R. 1017 and H.R. 718 in depth at its May 10,

2001, hearing.

REGULATION OF ELECTRONIC COMMERCE AND SPAM

The increased use of the Internet for electronic commerce is desirable. In fact, the Congress has encouraged, through such measures as the ‘‘Electronic Signatures in Global and National Commerce Act,’’ 3 the full use of the Internet to conduct business. Businesses use e-mail, much like the regular mail, to market their

products and services. E-mail marketing is viewed by many as a

necessary component of electronic commerce. The market efficiencies that the Internet can provide consumers is facilitated by

providing consumers with product information, notices about specials and discounts, and other wanted consumer information.
5

4 15 U.S.C. § 45(a). 5 18 U.S.C. § 1343. 6 18 U.S.C. § 1030.

Electronic commerce is still in its infancy. Business models are

constantly changing to find the right formula for success over the

Internet. Electronic commerce is currently experiencing a number

of difficulties. For example, banner ad revenue has fallen dramatically and many Internet companies have or are going out of business or filing for bankruptcy.

Marketing, no matter how annoying, is integral to the success of

commerce, including electronic commerce. Members on both sides

of the aisle have raised serious concerns about regulating e-mail

marketing and its impact on the growth of commerce. The Committee, in adopting its position, has chosen a cautious approach regarding the regulation of electronic commerce, particularly given

this era of great technological and market change.

Like any new technology, the Internet brings with it some challenges. One such challenge is the use of e-mail to deceive, cheat,

defraud, and swindle consumers. Additionally, some mass commercial and non-commercial e-mailers send pornography to unwilling

recipients. Some see the increased use of e-mail, particularly UCE

(also known as ‘‘spam’’ or ‘‘junk e-mail’’), as intrusive, annoying,

and costly to consumers and ISPs.

The debate about spam is often complicated because policy makers often confuse or don’t understand what constitutes spam. The

term ‘‘spam’’ is used to encompass a number of different practices,

some criminal, some annoying, and some benign. E-mail fraud, email pornography, and e-mail marketing are all often erroneously

lumped into the same category. They are demonstrably different,

and the amendment adopted by the Committee recognizes those

differences.

FRAUDULENT AND DECEPTIVE E-MAIL CONTENT

There are generally two types of fraudulent or deceptive e-mail.

The first is e-mail that makes fraudulent claims, such as the typical pyramid or other get-rich-quick scheme which is intended to

deceive, cheat, defraud, or swindle consumers. This type of fraud

falls directly under existing laws such as section 5(a) of the Federal

Trade Commission Act 4 or the Federal wire fraud statute.5 In addition, the Computer Fraud and Abuse Act 6 provides the Federal

Government with the statutory authority to investigate and prosecute those involved in damaging computers or accessing them

without authorization.

On April 26, 2001, the Federal Trade Commission (‘‘FTC’’), testified before the Senate Subcommittee on Communications of the

Committee on Commerce, Science and Transportation about their

efforts to address fraudulent UCE. Since 1994, when the FTC first

filed an enforcement action against deception on the Internet, the

Commission has brought 173 law enforcement actions against more

than 575 defendants to halt online deception and fraud. Regarding

deception and fraud, the FTC testified as follows:

By no means is all UCE is [sic] fraudulent, but fraud operators, who are often among the first to exploit any technological

innovation, have seized on the Internet’s capacity to reach lit-
6

7Written testimony of the Federal Trade Commission submitted to the Senate Subcomm. on

Communications of the Senate Comm. on Commerce, Science and Transportation (April 26,

2001), available at <http://www.ftc.gov/os/2001/04/unsolicommemail.htm>, visited June 1,

2001. 8 Report to the Federal Trade Commission of the Ad-Hoc Working Group on Unsolicited Commercial Email (hereinafter ‘‘Ad-Hoc Report’’) (July 1998). 9 Id. at 16.

erally millions of consumers quickly and at a low cost through

UCE. Not only are fraud operators able to reach millions of individuals with one message, but they can misuse the technology to conceal their identity. Many spam messages contain

false information about the sender and where the message was

routed from, making it nearly impossible to trace the UCE

back to the actual sender. In the same vein, UCE messages

also often contain misleading subject lines and extravagant

earnings or performance claims about goods and services.

These types of claims are the stock in trade of fraudulent

schemes.

Bulk UCE burdens (indeed, sometimes cripples) Internet service providers and frustrates their customers. The FTC’s main

concern with UCE, however, is its widespread use to disseminate false and misleading claims about products and services.

The Commission believes the proliferation of deceptive bulk

UCE on the Internet poses a threat to consumer confidence in

online commerce and thus views the problem of deception as

a significant issue in the debate over UCE.7

Fraudulent e-mail is a problem that the FTC is attempting to address, but some believe additional measures need to be taken to

punish those who would use fraud or deception to take advantage

of consumers. None of the spam bills pending before Congress

would directly address issues relating to this type of fraudulent activity.

TECHNICALLY FRAUDULENT E-MAIL

The second type of e-mail fraud is technical fraud. Technical

fraud, according to the Report to the Federal Trade Commission of

the Ad-Hoc Working Group on Unsolicited Commercial Mail, ‘‘is defined as the variety of practices, such as relaying through thirdparty mail servers, dynamically forging header information and

registering false domain names, used by those sending UCE to

avoid detection, frustrate remove requests, misdirect replies, and

generally frustrate efforts by users to prevent their continued receipt of UCE from the same sender.’’ 8 Those who engage in the

first type of fraud often times attempt to conceal their true identities through technical fraud. Technical fraud is used to defeat

Internet service providers’ and computer users’ e-mail filters, preferences, and other technologies developed to combat unwanted email.

Some Internet service providers have successfully used state

statutory or common law as a basis to litigate against those who

engage in technical fraud; however, most agree that more needs to

be done. The Ad-Hoc Report reviewed whether Federal authorities

could prosecute senders of UCE for using falsified addressing information and falsified headers to deceive consumers and concluded

that the legality of such a practice was unclear.9 The Ad-Hoc Work-
7

10 Id. at 31. 11 Commerce Report at 9 (‘‘There are also concerns that many unsolicited commercial electronic mail messages contain material of an adult nature that can be easily accessed by children

from the family computer, and in many instances these mail messages are intentionally sent

with incorrect routing information’’). 12Supra note 7. See also, Unsolicited Commercial Communications and Data Protection, Report to the Commission of the European Communities, 24–26 (January 2001) (‘‘As for spam, it

is clear that its days are numbered, now that it is shunned by the marketing industry itself

as well as by the network operators and by a public which will never be inclined to enter into

a relationship of trust with at spammer.’’).

ing Group endorsed public policies that ‘‘prevent and/or prohibit

the use of fraudulent headers to send unsolicited commercial email

messages.’’ 10 All of the witnesses who testified before the Committee endorsed the provisions in H.R. 1017 that address technical

fraud. Addressing technical fraud is the cornerstone of the bipartisan compromise adopted by the Committee.

E-MAIL PORNOGRAPHY

E-mail pornography is a particularly troubling problem. E-mail

pornography is also a concern of the Energy and Commerce Committee.11 E-mail pornographers obtain e-mail addresses from a

number of sources, including Internet chat rooms. Technology enables them to send millions of unsolicited pornographic e-mails to

adults and children. Internet service providers and the FTC have

received numerous complaints about such unwanted e-mail, but

they have been virtuously powerless to stop this practice. The Hart

amendment, adopted by the Committee, clearly and directly addresses this issue whereas H.R. 718, as introduced and reported by

the Energy and Commerce Committee, treats pornographic e-mail

in exactly the same manner as all unsolicited commercial e-mail.

UNSOLICITED COMMERCIAL E-MAIL

Unsolicited commercial e-mail, unlike fraudulent e-mail, is more

difficult to define. Consumers and retailers often have various relationships through various affiliates in which they may or may not

have prior business relationships. Some consumers may give permission to receive information about a certain product or type of

product (i.e. womens clothing) but such permission may not be specific to a given company. Identifying the particular stage of e-mail

marketing to regulate in the retailer-consumer relationship is a difficult issue and one the Committee rejected.

Furthermore, the Committee was not convinced that non-fraudulent or non-pornographic e-mail marketing requires regulation.

Most legitimate users of e-mail advertising do not engage in fraud

or deception and utilize some form of permission-based marketing.

In their April 26, 2001, testimony, the FTC noted that ‘‘well-known

manufacturers and sellers of consumer goods and services do not

send UCE. Rather, such merchants use solicited e-mail to give consumers information that they have requested about available products, services, and sales.’’ 12

THE COMMITTEE ADOPTS A CAUTIOUS APPROACH TO THE REGULATION

OF E-MAIL MARKETING

The Committee specifically rejected the legal and regulatory regime approved by the House Energy and Commerce Committee because of concerns about the necessity of regulating e-mail mar-
8

13 15 U.S.C. § 57a(b)(1).

keting and the proportionality of the proposed enforcement mechanisms relative to the harm or damage caused by non-fraudulent

unsolicited commercial e-mail. The amendment in the nature of a

substitute does not contain many of the unprecedented, complicated, and disproportionate enforcement provisions contained in

H.R. 718. H.R. 718 utilizes a number of legal enforcement and regulatory tools to control UCE. These provisions are disproportionate

to the harm or damage caused by spam. H.R. 718, as reported by

the Energy and Commerce Committee, contains two provisions

which would empower Internet service providers to effectively write

Federal law. These provisions raise serious Constitutional concerns.

First, an ISP’s unsolicited commercial e-mail policy could be enforced through litigation initiated by ISPs, individuals, state attorneys general, and the Federal Trade Commission. The second provision would deem an ISP policy a ‘‘Federal trade regulation rule’’

under section 18 of the FTC Act. There is no requirement that the

ISP’s policy be open to the public pursuant to the Administrative

Procedures Act as are Federal trade regulation rules under current

law.13 Thus, the approximately 5,000 ISP’s could write different

policies enforced by myriad legal actions without the due process

afforded by traditional rules and law. The Committee’s research

has uncovered no precedent for these provisions, and concerns were

raised that they are unnecessary and raise constitutional issues.

Furthermore, because these various laws and policies could be enforced in State or Federal courts, a consistent application of the

new proposed Federal cause of action is far from certain.

The Committee is also concerned about the regulation of on-line

commerce, including e-mail marketing. H.R. 718, if not changed,

would be the first major Federal regulation of online commerce. At

a time of great technological and market changes in the electronic

or Internet commerce arena, Congress should be cautious when

considering new regulations of e-commerce so that it does not unintentionally stifle innovation in this emerging market place. Furthermore, the law should not, at this time, favor one method of conducting business over another. H.R. 718, as introduced and reported by the Energy and Commerce Committee, would apply onerous rules and regulations to online marketing which don’t exist in

the offline world. The consequence of favoring one method of commercial communication (mail) over another (e-mail) could adversely

impact the growth of electronic commerce.

Another concern about the regulation of e-mail marketing has to

do with proportionality. The Committee is concerned about making

a Federal case out of a mere annoyance. Congress should carefully

consider proposals that would unleash the FTC, state attorneys

general, and the trial bar on U.S. businesses for sending unsolicited commercial e-mail. UCE that is not fraudulent or pornographic

may be annoying; however, it can be easily discarded by deleting

it—the equivalent of throwing junk mail away. Furthermore, most

legitimate businesses are interested in attracting new customers

and are concerned about annoying potential customers. Therefore,

most legitimate businesses offer some form of permission based
9

14See e.g. CompuServe Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997);

America Online, Inc. v. IMS, 24 F. Supp.2d 548 (E.D. Va. 1998); America Online, Inc. v. LCGM,

Continued

marketing and will readily remove one’s name from a mailing list

upon request.

Finally, consumers bear some responsibility in stemming the tide

of spam. Consumers must be wary about giving out their e-mail addresses to people or businesses with whom they are unfamiliar. For

example, by posting one’s e-mail address on a chat room, one

should know that anyone with Internet access potentially has access to that posted e-mail address. Online pornographers will ‘‘harvest’’ e-mail addresses posted on Internet chat rooms or message

boards and then send pornographic material to those individuals.

The same common sense rules that apply in the offline world also

apply to the online world, i.e. consumers should only give out their

names, addresses, and phone numbers to people and merchants

that they trust.

AMENDMENT IN THE NATURE OF A SUBSTITUTE

Technical Fraud

The amendment in the nature of a substitute would create a new

misdemeanor criminal provision to address the issue of technical

fraud. Technical fraud includes forging or falsifying header and return information, thereby concealing the sender’s identity. Those

who send fraudulent e-mail or pornography often use technical

fraud to conceal their true identities. Furthermore, technical fraud

is used to defeat Internet service providers’ and computer users’ email filters, preferences, and other technologies designed to block

unwanted e-mail. All of the witnesses who testified before the Committee, the Federal Trade Commission (FTC) in other testimony,

and the Ad-Hoc Working Group on Unsolicited Commercial E-Mail,

which reported to the FTC in July 1998, all support public policies

addressing fraudulently concealing one’s identity. A first offense for

sending UCE with falsified or misleading header information would

be punishable by fine and a second offense would be punishable by

imprisonment.

Goodlatte Amendment

The amendment in the nature of a substitute also includes a provision, offered as an amendment by Rep. Bob Goodlatte, authorizing Internet service providers to file suit to recover actual or statutory damages for engaging in technical fraud. Rep. Goodlatte argued that ISP’s, which have a vested business interest in protecting its customers from receiving fraudulent e-mail, would help

deter the type of behavior the bill seeks to prohibit. Furthermore,

it is argued that spam causes ISPs to incur tangible quantifiable

costs, namely the costs associated with maintaining computer networks that may be impaired by large volumes of spam and the dissatisfaction of customers and the consequent loss of goodwill. It is

argued that ISPs would use this authority as they do other statutory and common law authorities to protect themselves and their

customers. For example, ISPs have successfully utilized state trespass laws to prevent spammers from flooding their networks with

unwanted e-mail.14 The Goodlatte amendment is intended to sup-
10

Inc., 46 F. Supp.2d 444 (E.D. Va 1998). For a more detailed review of statutory and common

law legal theories utilized to address spam, see Credence E. Fogo, The Postman Always Rings

4,000 Times: New Approaches to Curb Spam, 18 John Marshall Journal of Computer and Information Law, 915 (2000); Michael A. Fisher, The Right to Spam? Regulating Electronic Junk

Mail, 23 Columbia-VLA Journal of Law and the Arts 357 (2000); Kenneth C. Amaditz, Canning

‘‘Spam’’ in Virginia: Model Legislation to Control Junk E-mail, 4 Va. J.L. & Tech. 4 (1999).

plement any State or Federal authority already relied on by ISPs

to protect their networks and their customers.

Hart Amendment

The amendment in the nature of a substitute contains a provision, offered as an amendment by Rep. Melissa Hart, that directs

the Attorney General to prescribe marks to be included in all pornographic e-mail. The amendment is modeled after a long-standing

postal statute, 39 U.S.C. § 3010, which mandates that marks be included on the envelope of pornographic material sent through the

United States Postal Service. This provision will allow users to delete pornographic material without viewing its contents and will

assist parents in screening or filtering out unwanted pornographic

e-mail, thereby protecting children from receiving and viewing pornography contained or accompanying e-mail. In short, a recipient

of a pornographic e-mail will now have the ability to utilize technology to automatically do the equivalent of throwing out unopened

junk mail. Concerns were raised at the markup that this provision

raised constitutional concerns; however, the Congressional Research Service, in a memorandum to the Committee, concluded

that the Hart amendment is constitutional. The memorandum is

reprinted in this report.

Schiff Amendment

Finally, the Committee adopted an amendment offered by Rep.

Adam Schiff which directs the Attorney General to conduct a study

of the effectiveness of the Act.

CONGRESSIONAL RESEARCH SERVICE MEMORANDUM REGARDING THE

CONSTITUTIONALITY OF THE HART AMENDMENT

Because concerns were raised at the markup about the constitutionality of the Hart amendment, which would make it a misdemeanor to knowingly send an e-mail that includes a sexually oriented advertisement without a mark or notice prescribed by the Attorney General, the Committee requested a legal opinion from the

American Law Division of the Congressional Research Service

(CRS) regarding the constitutionality of the amendment. The opinion concludes that the Hart amendment would not violate the First

Amendment of the U.S. Constitution. The CRS memorandum follows:
11
12
13
14
15

HEARINGS

The Committee held a legislative hearing on H.R. 718, the ‘‘Unsolicited Commercial Electronic Mail Act of 2001,’’ and H.R. 1017,

the ‘‘Anti-Spamming Act of 2001’’ on May 10, 2001. Testimony was

received from The Honorable Heather Wilson, U.S. Representative

from the First Congressional District in New Mexico; Mr. Rick

Lane, Director, eCommerce & Internet Technology, U.S. Chamber

of Commerce; Mr. Marc Lackritz, President, Securities Industry Association; Mr. Paul Misener, Vice President for Global Public Policy, Amazon.com (representing Amazon.com and the National Re-
16

tail Federation); and Mr. Wayne Crews, Director of Technology

Studies, Cato Institute.

COMMITTEE CONSIDERATION

On May, 23, 2001, the Committee met in open session and ordered favorably reported the bill H.R. 718, as amended, by voice

vote, a quorum being present.

VOTES OF THE COMMITTEE

1. Mr. Watt offered an amendment to the Goodlatte amendment

to the amendment in the nature of a substitute which would have

expanded the private right of action proposed by the Goodlatte

amendment to allow customers of Internet service providers to

bring an action against a person who violates subsection (a). The

amendment was defeated by a rollcall vote of 10 to 17.

ROLLCALL NO. 1

Ayes Nays Present

Mr. Hyde ............................................................................................................

Mr. Gekas .......................................................................................................... X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly .......................................................................................................

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Barr ............................................................................................................. X

Mr. Jenkins ........................................................................................................ X

Mr. Hutchinson .................................................................................................. X

Mr. Cannon ....................................................................................................... X

Mr. Graham .......................................................................................................

Mr. Bachus ........................................................................................................ X

Mr. Scarborough ................................................................................................

Mr. Hostettler ....................................................................................................

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Ms. Hart ............................................................................................................ X

Mr. Flake ........................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Frank ........................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ...........................................................................................................

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt .....................................................................................................

Mr. Wexler .........................................................................................................

Ms. Baldwin ...................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 10 17

2. Ms. Lofgren offered and amendment to the Goodlatte amendment to the amendment in the nature of a substitute which proposed to strike the provision in the Goodlatte amendment which
17

provides statutory damages, thereby limiting damages to actual

damages. The Lofgren amendment also proposed to permit an ‘‘email recipient’’ to sue for actual damages. The amendment was defeated by a rollcall vote of 12 to 16.

ROLLCALL NO. 2

Ayes Nays Present

Mr. Hyde ............................................................................................................

Mr. Gekas .......................................................................................................... X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Barr ............................................................................................................. X

Mr. Jenkins ........................................................................................................ X

Mr. Hutchinson .................................................................................................. X

Mr. Cannon ....................................................................................................... X

Mr. Graham .......................................................................................................

Mr. Bachus ........................................................................................................ X

Mr. Scarborough ................................................................................................

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa .............................................................................................................

Ms. Hart ............................................................................................................ X

Mr. Flake ........................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Frank ........................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ...........................................................................................................

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt .....................................................................................................

Mr. Wexler .........................................................................................................

Ms. Baldwin ...................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 12 16

3. Mr. Schiff offered an amendment to the amendment in the nature of a substitute which proposed an additional misdemeanor offense for failure to include within the header information an identifier prescribed by the Attorney General which would have informed

the recipient that the electronic message was an unsolicited commercial electronic message. The identifier would have also permitted automatic filtering. The amendment was defeated by a rollcall vote of 8 to 14.

ROLLCALL NO. 3

Ayes Nays Present

Mr. Hyde ............................................................................................................

Mr. Gekas ..........................................................................................................

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X
18

ROLLCALL NO. 3—Continued

Ayes Nays Present

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Barr ............................................................................................................. X

Mr. Jenkins ........................................................................................................ X

Mr. Hutchinson ..................................................................................................

Mr. Cannon ....................................................................................................... X

Mr. Graham .......................................................................................................

Mr. Bachus ........................................................................................................ X

Mr. Scarborough ................................................................................................

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa .............................................................................................................

Ms. Hart ............................................................................................................ X

Mr. Flake ........................................................................................................... X

Mr. Conyers .......................................................................................................

Mr. Frank ...........................................................................................................

Mr. Berman .......................................................................................................

Mr. Boucher .......................................................................................................

Mr. Nadler .........................................................................................................

Mr. Scott ...........................................................................................................

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt .....................................................................................................

Mr. Wexler .........................................................................................................

Ms. Baldwin ...................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 8 14

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the

House of Representatives, the Committee reports that the findings

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report.

PERFORMANCE GOALS AND OBJECTIVES

H.R. 718 does not authorize funding. Therefore, clause 3(c) of

rule XIII of the Rules of the House of Representatives is inapplicable.

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new

budgetary authority or increased tax expenditures.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the

House of Representatives, the Committee sets forth, with respect to
19

the bill, H.R. 718, the following estimate and comparison prepared

by the Director of the Congressional Budget Office under section

402 of the Congressional Budget Act of 1974:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, June 5, 2001.

Hon. F. JAMES SENSENBRENNER, Jr., Chairman,

Committee on the Judiciary,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 718, the Anti-Spamming

Act of 2001.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contacts are Mark Grabowicz (for

Federal costs), who can be reached at 226–2860, and Lauren Marks

(for the private-sector impact), who can be reached at 226–2940.

Sincerely,

DAN L. CRIPPEN, Director.

Enclosure

cc: Honorable John Conyers Jr.

Ranking Member

H.R. 718—Anti-Spamming Act of 2001.

CBO estimates that implementing H.R. 718 would result in no

significant costs to the Federal Government. Because enactment of

the bill could affect direct spending and receipts, pay-as-you-go procedures would apply, however, CBO estimates that any impact on

direct spending and receipts would not be significant. H.R. 718 contains no intergovernmental mandates as defined in the Unfunded

Mandates Reform Act (UMRA) and would impose no costs on state,

local, or tribal governments. The bill would impose a private-sector

mandate as defined by UMRA on individuals who send commercial

electronic mail containing a sexually oriented advertisement. Based

on information provided by government and industry sources, CBO

expects that the direct cost of complying with the mandate would

fall well below the annual threshold established by UMRA ($113

million in 2001, adjusted annually for inflation).

H.R. 718 would impose new restrictions on the transmission of

unsolicited commercial electronic mail (UCE). The bill would establish criminal penalties for knowingly sending certain UCE that

contains false identification information or sexually oriented advertisements. Under the bill’s provisions, providers of internet access

could initiate legal action against persons who send UCE containing false identification information. H.R. 718 also would direct

the Attorney General to prepare a report, within 18 months of enactment, on the effectiveness and enforcement of the bill’s provisions.

CBO estimates that it would cost the Department of Justice less

than $500,000 to prepare the report required by the bill, subject to

the availability of appropriated funds. Because

H.R. 718 would establish a new Federal crime, the government

would be able to pursue cases that it otherwise would not be able

to prosecute. Under the bill, however, we expect a relatively small
20

number of cases would be pursued and that any increase in costs

for law enforcement, court proceedings, or prison operations would

not be significant. Any such costs would be subject to the availability of appropriated funds.

Because those prosecuted and convicted under H.R. 718 could be

subject to criminal fines, the government might collect additional

fines if the bill is enacted. Collections of such fines are recorded in

the budget as governmental receipts (revenues), which are deposited in the Crime Victims Fund and spent later. Any additional receipts and direct spending from enacting H.R. 718 are not likely to

be significant because of the relatively small number of cases involved.

H.R. 718 would impose a private-sector mandate as defined by

UMRA on individuals who send electronic mail that contains a sexually oriented advertisement. The bill would require the senders to

include marks or notices, to be prescribed by the Attorney General,

on all such messages that would inform recipients of the sexual

content of the message. Based on information provided by government and industry sources, CBO estimates that the direct cost of

complying with this mandate would fall well below the annual

threshold established by UMRA for private-sector mandates.

On April 13, 2001, CBO transmitted a cost estimate for H.R. 718,

the Unsolicited Commercial Electronic Mail Act of 2001, as reported by the House Committee on Energy and Commerce on April

4, 2001. CBO estimated that implementing that legislation would

cost about $6 million over the 2002–2006 period and would increase revenues by about $13 million over the same period, mostly

from provisions affecting the Federal Trade Commission.

The CBO staff contacts for this estimate are Mark Grabowicz (for

Federal costs), who can be reached at 226–2860, and Lauren Marks

(for the private-sector impact), who can be reached at 226–2940.

This estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House

of Representatives, the Committee finds the authority for this legislation in article I, section 8, clauses 3 and 18 of the Constitution.

SECTION-BY-SECTION ANALYSIS AND DISCUSSION AND DISCUSSION

Section 1. Short Title. Provides that the short title of the act

shall be the ‘‘Anti-Spamming Act of 2001.’’ Section 2. Spamming Prohibitions. Adds a new ‘‘Chapter 30— Electronic Mail’’ to title 18 of the United States Code. Two new sections, 621 and 622, would be included in chapter 30. Section 621(a)

would prohibit anyone from sending an unsolicited commercial

electronic mail message that contains fraudulent transmission information. Specifically, the new section would prohibit the intentional transmission of 10 or more unsolicited commercial electronic

mail message to one or more protected computers in the United

States knowing that the message contains or is accompanied by

header information that is materially false or misleading as to the

identity of the person initiating the transmission. A first offense

under this section is punishable by fine under the applicable provi-
21

sions of title 18, United States Code, and subsequent offenses may

be punished by imprisonment for not more than 1 year.

Subsection (b)(1) of section 621 defines ‘‘commercial electronic

mail message’’ as ‘‘an electronic mail message the primary purpose

of which is to advertise or promote, for a commercial purpose, a

product or service (including content on an Internet website).’’ Subsection (b)(2) defines ‘‘header information’’ as ‘‘the source, destination, and routing information, including the originating domain

name and originating electronic mail address.’’ Subsection (b)(3) defines ‘‘protected computer’’ in the same manner as it is defined by

18 U.S.C. § 1030(e)(2).

Subsection (c) of section 621 provides that an Internet service

provider may bring a cause of action in an appropriate state court,

or, if not permitted by state laws or rules, in an appropriate Federal court, against a person who commits a violation of subsection

(a). Such a person would be liable for actual or statutory damages,

an may be liable for costs. Statutory damages are $5.00 per violation, not to exceed $1,000,000, except that, no limit applies if during any 1-year period the defendant transmitted in excess of

20,000,000 unsolicited commercial electronic mail messages.

New section 622 would prohibit the inclusion of a sexually oriented advertisement in electronic mail unless it includes a warning

label. Specifically, section 622 directs the Attorney General to prescribe marks or notices to be included in electronic mail that contains a sexually oriented advertisement in order to inform the recipient of that fact. Whoever knowingly includes such an advertisement without including the prescribed marks shall be fined under

the applicable provisions of title 18, United States Code, or imprisoned not more than 1 year, or both.

Section 622(b) defines ‘‘sexually oriented advertisement’’ as ‘‘any

advertisement that depicts, in actual or simulated form, or explicitly describes, in a predominantly sexual context, human genitalia,

any act of sadism or masochism, or any other erotic subject directly

related to the foregoing, but material otherwise within the definition of this subsection shall be deemed not to constitute a sexually

oriented advertisement if it constitutes only a small and insignificant part of the whole, the remainder of which is not primarily devoted to sexual matters.’’

Section 3. Study of Effects of Unsolicited Commercial Electronic

Mail. Directs the Attorney General to submit a report to Congress

with 18 months of enactment of the Act which provides a detailed

analysis of the effectiveness of the enforcement provisions of the

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

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,

as reported, are shown as follows (new matter is printed in italics

and existing law in which no change is proposed is shown in

roman):
22

TITLE 18, UNITED STATES CODE

* * * * * * *

PART I—CRIMES

Chap. Sec.

1. General provisions ................................................................................. 1

* * * * * * *

30. Electronic mail ......................................................................................... 621

* * * * * * *

CHAPTER 30—ELECTRONIC MAIL

Sec.

621. Unsolicited commercial electronic mail containing fraudulent transmission information.

622. Warning labels for electronic mail containing advertisements harmful to minors.

§ 621. Unsolicited commercial electronic mail containing

fraudulent transmission information

(a) Whoever intentionally initiates in one or more transactions the

transmission of 10 or more unsolicited commercial electronic mail

messages to one or more protected computers in the United States,

knowing that each such message contains or is accompanied by

header information that is materially false or misleading as to the

identity of the person initiating the transmission shall be fined

under this title, and in the case of an offense under this section

which occurs after conviction for a prior offense under this section,

shall be so fined or imprisoned not more than one year, or both.

(b) As used in this section— (1) the term ‘‘commercial electronic mail message’’ means an

electronic mail message the primary purpose of which is to advertise or promote, for a commercial purpose, a product or service (including content on an Internet website);

(2) the term ‘‘header information’’ means the source, destination, and routing information, including the originating domain name and originating electronic mail address; and

(3) the term ‘‘protected computer’’ has the meaning given that

term in section 1030(e)(2) of this title.

(c)(1) A provider of Internet access service, if otherwise permitted

by the laws or rules of a court of a State, may bring in an appropriate court of that State, or, if such laws or rules do not so permit,

may bring in an appropriate Federal court, an action to recover for

actual or statutory damages, as provided in paragraph (2), and for

costs, as provided in paragraph (4).

(2) A person committing a violation of subsection (a) is liable to

a provider of Internet access service for either—

(A) the actual damages suffered by the provider of Internet

access service; or

(B) statutory damages, as provided in paragraph (3).

(3) At any time before final judgment in an action, a provider of

Internet access service may elect to recover an award of statutory

damages for each violation of subsection (a) in the sum of $5 per
23

violation, not to exceed a total of $1,000,000, except that, during any

one-year period for which the defendant has transmitted in excess

of 20,000,000 unsolicited commercial electronic mail messages, no

such limit on liability shall exist.

(4) In any action brought under paragraph (1), the court may

award to a prevailing party reasonable litigation expenses incurred

by that party, including reasonable attorney’s fees, as a part of the

costs awarded under section 1920 of title 28 against any party

found in that action to have committed a violation of subsection (a).

§ 622. Warning labels for electronic mail containing advertisements harmful to minors

(a)(1) The Attorney General shall prescribe marks or notices to be

included in electronic mail that contains a sexually oriented advertisement in order to inform the recipient of that fact.

(2) Whoever, in any electronic mail that is carried on an instrumentality in or affecting interstate or foreign commerce, knowingly

includes a sexually oriented advertisement but does not include in

such electronic mail the marks or notices prescribed by the Attorney

General under this section shall be fined under this title or imprisoned not more than one year, or both.

(b) As used in this section, the term ‘‘sexually oriented advertisement’’ means any advertisement that depicts, in actual or simulated

form, or explicitly describes, in a predominantly sexual context,

human genitalia, any act of natural or unnatural sexual intercourse, any act of sadism or masochism, or any other erotic subject

directly related to the foregoing, but material otherwise within the

definition of this subsection shall be deemed not to constitute a sexually oriented advertisement if it constitutes only a small and insignificant part of the whole, the remainder of which is not primarily

devoted to sexual matters.

* * * * * * *

MARKUP TRANSCRIPT

BUSINESS MEETING

WEDNESDAY, MAY 23, 2001

HOUSE OF REPRESENTATIVES,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The committee met, pursuant to notice, at 10:06 a.m., in Room

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [chairman of the committee] presiding.

Chairman SENSENBRENNER. The committee will be in order.

The next item on the agenda is H.R. 718, the Unsolicited Commercial Electronic Mail Act of 2001, and I move its favorable recommendation to the full House.

[H.R. 718 follows:]
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44

Without objection, the bill will be considered as read and open

for amendment at any point, and the amendment in the nature of

a substitute, which the members have before them, will be considered as read and considered as the original text for purposes of

amendment.

[The amendment in the nature of a substitute follows:]
45
46
47

Chairman SENSENBRENNER. The Chair recognizes himself to

strike the last word.

The amendment in the nature of a substitute that all members

have before them is the product of bipartisan cooperation between

the majority and the minority, and I appreciate the work of all

members on this bill. Judiciary Committee members on both sides

of the aisle voiced concern about sweeping legislation that would

regulate e-mail marketing, and this bipartisan substitute addresses

those concerns.

Specifically, the substitute would create a new misdemeanor

criminal provision to address the issue of technical fraud. Technical

fraud includes forging or falsifying header and return information,

thereby concealing the sender’s identity. Those who send fraudulent e-mail or pornography often use technical fraud to conceal

their true identities. Furthermore, technical fraud is used to defeat

Internet service providers’ and computer users’ e-mail filters, preferences, and other technologies designed to block unwanted e-mail.

All of the witnesses who testified before the committee, the Federal Trade Commission in other testimony, and the Ad Hoc Working Group on Unsolicited Commercial E-Mail, which reported to the

FTC in July 1998, all support public policies which address fraudulently concealing one’s identity.

The substitute, however, does not address generalized concerns

about unsolicited commercial e-mail, and the substitute does not

contain many of the unprecedented and disproportionate enforcement provisions contained in H.R. 718.

The Wilson bill utilizes almost every legal enforcement tool

known to lawyers to regulate and to litigate issues relating to unsolicited commercial e-mail. These provisions are disproportionate to

the harm or damage caused by spam.

In addition to a complicated, cumbersome, and punitive regulatory regime, the Wilson bill contains two unprecedented provisions which would empower the Internet service providers to write

Federal law. First, an ISP’s unsolicited commercial e-mail policy

could be enforced by a private right of action, State attorneys general, and the Federal Trade Commission. The second provision

would deem an ISP policy a Federal regulation rule under Section

18 of the Federal Trade Commission Act. There is no requirement

that the ISP policy be open to the public for comment, as are Federal Trade regulation rules under the Administrative Procedures

Act. Thus, approximately 5,000 ISPs could write different policies,

enforced by myriad legal actions, without due process afforded by

traditional rules and by law. The committee’s research has uncovered no precedent for these provisions, and I believe them to be unnecessary and may raise constitutional issues.

I am also skeptical of the regulation of online commerce, including e-mail marketing. H.R. 718, if not changed, would be the first

major Federal regulation of online commerce. Congress should be

cautious when considering new regulations of e-commerce.

Congress has always supported and encouraged Internet commerce in several ways. The e-signatures bill and the Internet access tax moratorium were affirmative signals that Congress wanted

the efficiencies of the Internet to bring choices, competition, and

needed information to consumers. Electronic commerce is still in its
48

infancy. Business models are constantly changing to find the right

formula for success over the Internet.

For example, banner ad revenue has fallen almost as much as

the stock prices of many dotcoms. Marketing, no matter how annoying, is integral to the success of commerce, including electronic

commerce. Members on both sides of the aisle have raised serious

concerns about regulating e-mail marketing and its impact on the

growth of commerce, and I am convinced that a go-slow approach

is needed during this time of great technological and market

change.

Another concern about the regulation of e-marketing has to do

with proportionality. I am concerned about making a Federal case

out of a mere annoyance. Congress should carefully consider proposals to unleash the FTC, State attorneys general, and the trial

bar on U.S. businesses for sending un-commercial—unsolicited

commercial e-mail. I believe that we should do what we can to address fraudulent e-mail, but also believe that we need to be careful

and cautious about regulating e-mail marketing.

We should not lump e-mail fraud, e-mail pornography, and email marketing all in the same category. They are demonstrably

different, and we should address the problems that actually cause

harm or damage. Congress should avoid falling victim to the law

of unintended consequences, particularly because Internet commerce is still in its infancy. The substitute forces on the issue of— focuses on the issue of fraud, which is an appropriate area for government action.

[The statement of Mr. Sensenbrenner follows:]

PREPARED STATEMENT OF THE HONORABLE F. JAMES SENSENBRENNER, JR., A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN

The amendment in the nature of a substitute that all Members have before them

is the product of bipartisan cooperation between the majority and minority, and I

appreciate the work of all Members on this bill. Judiciary Committee Members on

both sides of the aisle voiced concerns about sweeping legislation that would regulate e-mail marketing and this bipartisan substitute addresses those concerns.

Specifically, the substitute would create a new misdemeanor criminal provision to

address the issue of technical fraud. Technical fraud includes forging or falsifying

header and return information, thereby concealing the sender’s identity. Those who

send fraudulent e-mail or pornography often use technical fraud to conceal their

true identities. Furthermore, technical fraud is used to defeat Internet service providers’ and computer users’ e-mail filters, preferences, and other technologies designed to block unwanted e- mail. All of the witnesses who testified before the Committee, the Federal Trade Commission (FTC) in other testimony, and the Ad-Hoc

Working Group on Unsolicited Commercial E-Mail, which reported to the FTC in

July 1998, all support public policies addressing fraudulently concealing one’s identity.

The substitute, however, does not addresses generalized concerns about unsolicited commercial e-mail and the substitute does not contain many of the unprecedented and disproportionate enforcement provisions contained in H.R. 718. The Wilson bill utilizes almost every legal enforcement tool known to lawyers to regulate

and litigate issues relating to unsolicited commercial e-mail. These provisions are

disproportionate to the harm or damage caused by spam. In addition to a complicated, cumbersome, and punitive regulatory regime, the Wilson bill contains two

unprecedented provisions which would empower Internet service providers to write

federal law.

First, an ISP’s unsolicited commercial e-mail policy could be enforced by private

right of action, state attorneys general, and the Federal Trade Commission. The second provision would deem an ISP policy a ‘‘federal trade regulation rule’’ under section 18 of the FTC Act. There is no requirement that the ISP’s policy be open to

the public for comment as are federal trade regulation rules under the Administrative Procedures Act. Thus, the approximately 5,000 ISP’s could write different policies enforced by myriad legal actions without the due process afforded by traditional
49

rules and law. The Committee’s research has uncovered no precedent for these provisions, and I believe they are unnecessary and may raise constitutional issues.

I am also skeptical of the regulation of on-line commerce, including e- mail marketing. H.R. 718, if not changed, would be the first major federal regulation of online commerce. Congress should be cautious when considering new regulations of ecommerce.

Congress has supported and encouraged Internet commerce in several ways. The

E-signatures bill and Internet access tax moratorium were affirmative signals that

Congress wanted the efficiencies of the Internet to bring choices, competition, and

needed information to consumers. Electronic commerce is still in its infancy. Business models are constantly changing to find the right formula for success over the

Internet. For example, banner ad revenue has fallen almost as much as the stock

prices of many dot-coms. Marketing, no matter how annoying, is integral to the success of commerce, including electronic commerce. Members on both sides of the aisle

have raised serious concerns about regulating e-mail marketing and its impact on

the growth of commerce, and I am convinced that a go-slow approach is needed during this time of great technological and market change.

Another concern about the regulation of e-mail marketing has to do with proportionality. I am concerned about making a federal case out of a mere annoyance. Congress should carefully consider proposals to unleash the FTC, state attorneys general, and the trial bar on U.S. businesses for sending unsolicited commercial e-mail.

I believe we should do what we can to address fraudulent e-mail, but also believe

we need to be careful and cautious about regulating e-mail marketing. We should

not lump e-mail fraud, e-mail pornography, and e-mail marketing all in the same

category. They are demonstrably different, and we should address the problems that

actually cause harm, or damage.

Congress should also avoid falling victim to the law of unintended consequences,

particularly because Internet commerce is still in its infancy. The substitute focuses

on the issue of fraud which is an appropriate area for government action. Again,

I want to I urge my colleagues to support the substitute and yield back the balance

of my time.

Again, I want to urge my colleagues to support the substitute

and now recognize the gentleman from Michigan, Mr. Conyers.

Mr. CONYERS. Thank you, Mr. Chairman. Our negotiations have

paid off again, and we now have a bill that really deals with the

major concern that this legislation brought with it initially, and

that was the First Amendment considerations by being no more extensive than necessary. And we have resolved those concerns by

the elimination of a series of vague terms and prohibitions and sentencing procedures which now would require a second offense with

over 10 or more e-mails to bring about any imprisonment.

We’ve also excluded the language that would require that 718

has the force of law to Internet service provider policies on blocking

e-mails, which, again, was a First Amendment consideration. And

I think that we’ve got now a substitute that people with differing

philosophies can come together to deal with a very annoying problem that now will be able to receive congressional attention, and

I think it’ll remedy this problem a great deal, and I urge my colleagues to accept this substitute.

Chairman SENSENBRENNER. Without—without objection, all

member’s opening statements will be inserted in the record at this

point.

[The statement of Mr. Conyers follows:]

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN

From scheduling the hearing to our negotiations over the past two weeks, the

Chairman has not only upheld this Committee’s jurisdiction but also worked with

us to arrive at more reasonable legislation. Immediately after the hearing, we took

to him our concerns with the original bill—he shared our concerns and was able to

accept all of our suggested changes. And that is why I am pleased to join him in

offering this substitute.
50

Our major concern was ensuring that the legislation complied with First Amendment rights by being ‘‘no more extensive than necessary.’’ We resolved those concerns by eliminating vague terms and narrowing the prohibition to commercial emails with ‘‘materially false or misleading’’ header information. And the prohibition

applies only to ten or more e-mails, so that the transmission of just one e-mail is

not penalized.

We also eased the penalties themselves. The original bill provided for a fine or

even imprisonment for a first offense. Under the Sensenbrenner- Conyers substitute,

a first offense results in a criminal fine with no possibility of imprisonment. For a

second offense, a violator can receive a fine, imprisonment for not more than one

year, or both. Moreover, there are no mandatory minimum sentences.

Finally, we excluded language from H.R. 718 that gave the force of law to ISP

policies on blocking e-mails. Not only did that language raise First Amendment concerns, but it gave congressional imprimatur to any ISP policy, even if that policy

discriminated against competing ISPs.

I’d like to thank the Chairman again for working with us to draft this substitute

and hope we can continue working together when the spam bills reach the floor and

possibility go to conference.

Chairman SENSENBRENNER. Are there amendments? The gentleman from North Carolina.

Mr. COBLE. Mr. Chairman, I move to strike the last word.

Chairman SENSENBRENNER. The gentleman’s recognized for 5

minutes.

Mr. COBLE. And I will not utilize my entire 5 minutes, but a concern’s been raised that the legislation before us may produce the

unintended consequence of prohibiting intellectual property owners

attempting to protect their rights from sending electronic notices to

infringing parties. Now, I’m satisfied that the nature—the amendment in the nature of a substitute to H.R. 718 alleviates this concern. Still, we will continue to monitor H.R. 718 as it moves forward to ensure that intellectual property owners may use electronic mail as a means of protecting their property.

The Digital Millennium Copyright Act, which Congress passed in

1998, made great progress in protecting intellectual property by applying traditional laws to the digital environment. However, the

protection in the DMCA would be compromised, in my opinion, if

intellectual property owners were not able to pursue Internet pirates and infringers. And if the gentleman from California, the

ranking member of the Subcommittee on Courts, Internet, and Intellectual Property, would like to add further, I will happily yield

to him.

Mr. BERMAN. Mr. Chairman, I thank the gentleman for yielding,

and I agree entirely with him that it is critical that intellectual

property owners be able to police their property on the Internet.

The anti-spam legislation in all forms was not intended—in any of

its forms was not intended to injure legitimate business interactions. Therefore, I’m encouraged that the amendment in the nature of a substitute being offered by the Chair and ranking member

takes care of the intellectual property concerns. We just want to

make sure as the bill moves along that property owners—we keep

these intellectual property owners in mind as we move forward

with this anti-spam legislation. And I yield back.

Mr. COBLE. I’ll reclaim my time, Mr. Chairman, and yield back

my time.

Mr. FRANK. Mr. Chairman?

Chairman SENSENBRENNER. For what purpose does the gentleman from Massachusetts seek recognition?

Mr. FRANK. To strike the last word.
51

Chairman SENSENBRENNER. The gentleman’s recognized for 5

minutes.

Mr. FRANK. Mr. Chairman, I agree that the original bill went too

far. I was a cosponsor, and I think it was broader than was wise.

In particular, giving legal force to the policies of the multiplicity of

independent service providers obviously was just not a very good

idea. And I’m going to vote for the substitute because it’s better

than nothing, but I am concerned that it does not go far enough.

And I have a question for those who worked on the substitute and

others who are knowledgeable.

In the original bill, one provision which seemed to me useful was

allowing people to notify senders of their objection and for them

then to have a right not to get further transmissions from that individual. What will the status of that policy be if we just adopt the

substitute? There was a right to object to unsolicited mail and ask

that it not be sent again.

Now, you helped us by giving—making sure the address is right,

but will you have the right, if you get correctly return-addressed

mail, to say please don’t send this to me anymore? And I would

yield to anyone who could answer that.

Chairman SENSENBRENNER. Would the gentleman yield?

Mr. FRANK. Yes.

Chairman SENSENBRENNER. The substitute deals with fraud. It

does not—it does not deal with normal business practices, similar

to the Postal Service. You know, if somebody sticks a stamp on a

letter and addresses it to you, you know, it’s delivered to your mailbox.

Mr. FRANK. Well, I appreciate that—— Chairman SENSENBRENNER. What happens after it gets there is

up to you.

Mr. FRANK. Well, I understand that. I do think unsolicited mail

is easier to deal with than unsolicited e-mail, which can cause a

clog and you get a kind of Gresham’s law in which the bad drives

out the good when you have got to sort through a lot. And I regret

the absence in the substitute of a provision that would allow people, having once been solicited, to tell the person who had solicited

them not to do that again. We’ve followed that practice in some

other areas of financial privacy, and I think that model is a good

one. I don’t think it interferes with First Amendment rights at all.

And as I said, I do think being the recipient of e-mail can be more

of an intrusion than the recipient of other mail which you can simply throw out and don’t have to sort through. Sorting through email can be a problem. I’ve had complaints about this.

So I do—I appreciate the fraud part, and I do agree that 718

went too far, particularly with regard to the independent service

providers. But I think we are leaving people insufficiently protected, and it does seem to me people who notify——

Mr. GOODLATTE. Would the gentleman yield?

Mr. FRANK.—sent them the material ought to have a right to say

no.

Yes, I’ll yield to the gentleman from Virginia.

Mr. GOODLATTE. I thank the gentleman for yielding. As you may

know, I have offered legislation on this matter as well, and I share

the gentleman’s concern. My concern with regard to what you’re

talking about—and I agree, we should have ultimately some provi-
52

sion that provides for the ability to request that your name—that

you not be re-solicited, if you will. But it is in the remedies portion

of that. I don’t want to have a proliferation of lawsuits or whatever

as a result of that.

So I would be happy to continue to work with the gentleman——

Mr. FRANK. Well, I thank the gentleman for that. Yes, I agree

that probably a mandatory minimum sentence to which we resort

all too quickly would probably not be appropriate, although the inappropriateness of mandatory minimum sentences has not deterred

us sufficiently in the past.

And I would be glad to work with the gentleman on that in terms

of other penalties. It might be that you had to spend 3 hours a day

reading all your own e-mails. I can think of some others.

But on that assurance, as I said—well, I’m going to vote for the

bill, anyway, and I’m not prepared with any alternative. But I’m

glad to hear that because I do think we ought to be able to help

people protect themselves from having—from getting flooded and

having their ability to read what they want to read crowded out by

what they don’t want to read, which is a different situation than

the mail. I’d yield again.

Mr. GOODLATTE. If you’d yield further, the reality here with this

type of circumstance is that the Internet service providers are what

people really have to depend on to help them fend off this enormous and rapidly growing flood of this type of e-mail. And I’ll be

offering an amendment shortly that will help in that regard as

well.

Mr. FRANK. I thank the gentleman. I yield back.

Chairman SENSENBRENNER. Are there amendments?

Mr. GOODLATTE. Mr. Chairman?

Chairman SENSENBRENNER. The gentleman from Virginia, Mr.

Goodlatte.

Mr. GOODLATTE. Mr. Chairman, I have an amendment at the

desk.

Chairman SENSENBRENNER. The clerk will report the amendment.

The CLERK. Amendment offered by Mr. Goodlatte to the amendment in the nature of a substitute to H.R. 718. On page 2, after

line 19, insert the following: (c)——

Mr. GOODLATTE. Mr. Chairman, I’d ask unanimous consent that

the amendment be considered as read.

Chairman SENSENBRENNER. Without objection, so ordered.

[The amendment follows:]
53

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. GOODLATTE. Thank you, Mr. Chairman.

And, Mr. Chairman, let me start, in lieu of an opening statement, by saying that I thank you for holding this markup and congratulate you for the very narrowly tailored substitute that you are

offering that I think goes a long way toward addressing this problem without encountering some of the proliferation of litigation and

micromanagement of our commercial enterprise system, and goes a

long way to avoiding the problem of legitimate uses of commercial

e-mail that help make things easier for consumers and help make

them aware of things, including issues related to copyright, as the

gentleman from North Carolina mentioned, that I think are very

important.

I would also note that this is a growing problem. I hear on a

weekly basis from constituents at home about their concern about

spam. It is growing exponentially. And I do think we need to take
54

measures to solve this problem, so I also commend the gentlewoman from New Mexico for the legislation that she offered. I

think, however, this—this alternative moves us closer to the objective we’re trying to seek.

I have an amendment—— Ms. LOFGREN. Would the gentleman—I’m sorry.

Mr. GOODLATTE. I have an amendment that is intended to make

this process more effective. And the fact of the matter is that right

now law enforcement agencies are not going to give this problem

the kind of attention that most of my constituents, most of all of

our constituents would like them to give it. They are overtaxed in

terms of their commitment to various enforcement measures, and

this is not going to get as high a priority as I would like to see.

We have an amendment that will give the Internet service providers the ability to help protect the consumers, and they have an

incentive to do this because it causes enormous problems on their

systems. It can call—cause smaller ISPs to crash when they’re

overloaded with spam, and it certainly hurts their business reputation. They are, in effect, the carrier who is providing this service

to people who use e-mail.

So this amendment will help to give them a very narrowly tailored cause of action. It does not give individuals a private right

of action, but it does give the ISPs a narrowly tailored private right

of action to enforce this. There is a—— Ms. LOFGREN. Would the gentleman yield?

Mr. GOODLATTE. Let me finish my statement. Then I’ll be happy

to yield.

There is a very narrowly tailored precedent for this in the Telephone Consumer Protection Act of 1991, which was enacted in response to the overwhelming volume of unsolicited faxes, spam

faxes. You can all remember the complaints that came out about

that when people wanted to offer spamming of all kinds of commercial advertisements over your fax machines. While there are some

exceptions to my statement, generally you don’t get a lot of unsolicited commercial spam over your fax machine, and the reason is this

Telephone Consumer Protection Act of 1991 that helped to ensure

compliance with these sorts of consumer protection laws. It had a

$10 per violation—has, it’s current law, $10 per violation, up to

$500,000 statutory damage provision, and it has not led to a proliferation of lawsuits. It’s had the opposite effect because it has

worked to deter improper conduct and ensure better compliance

with the law.

And that’s exactly what this amendment is intended to do as

well, and I would urge my colleagues to adopt it, and I’d be happy

to yield to the gentlewoman from California.

Ms. LOFGREN. Thank you, Mr. Goodlatte.

In reading this amendment, I certainly understand the origin of

the concern. My desire is to legislate as little as possible in the

area of the Internet, and I think you feel similarly. And so the concern I have is whether this is necessary when it is possible for ISPs

to bring a trespass action and protect themselves in that way.

Mr. GOODLATTE. Well, reclaiming my time, I understand that,

and they definitely do have that right. The problem is that they

have very little—remember, they’re doing this as a service to their

customers, and they have very little incentive to do it if, when they
55

go to court, they have experienced very little by way of actual damages to themselves. And that’s what happens when they simply

bring—— Chairman SENSENBRENNER. Will the gentleman yield?

Mr. GOODLATTE. I would be happy to yield.

Chairman SENSENBRENNER. Let me say I think this amendment

is an improvement to the bill. I’m not completely convinced that we

don’t need to further refine the amendment before this bill goes to

the floor. But I think that the real meat of this amendment is the

statutory damages provision where the ISP does not have to prove

actual damages. You know, here in Section 2(B) of the amendment,

it’s $5 per violation, not to exceed a total of a million, except that

if during a 1-year period somebody sends out in excess of 20 million

items of spam, then there’s no such limit on liability.

So I think that this makes it pay for the ISP to go to court to

try to police its own self.

Ms. LOFGREN. Would the gentleman—— Chairman SENSENBRENNER. Without objection, the gentleman’s

given 2 additional minutes.

Mr. GOODLATTE. I’d be happy to continue to yield.

Ms. LOFGREN. The question I have is—I mean, we’re talking

about two goals here, if I’m understanding correctly. One is to

incentivize ISPs to bring actions to deter unsolicited spam, and the

second issue is to give remedies to ISPs who crash because of the

volume, which is really the trespass case.

So I’m just not sure that we need to—I mean, that’s why we have

a delete button. I mean, I don’t know that I’m yet convinced that

we need to incentivize ISPs to bring action against—— Mr. GOODLATTE. I think this is far superior to the competing bill,

which would—— Ms. LOFGREN. Oh, I don’t—I don’t disagree with that.

Mr. GOODLATTE.—incentivize everyone to bring actions. This narrowly tailors it, and the evidence from the previous law, the Telephone Consumer Protection Act, has been that it does not

incentivize action but, rather, it incentivizes people to not send unsolicited commercial e-mails. And, remember, this ties into the

main portion of the chairman’s substitute, so it relates to fraudulent actions as well.

So this is a very, very narrowly tailored provision.

Ms. LOFGREN. I should have noted, before I made any comment,

that I do very much appreciate that the substitute as well as this

amendment is a considerable improvement over the underlying bill,

and I do acknowledge that, although I do still have questions, and

I thank the gentleman for yielding.

Mr. BERMAN. Would the gentleman yield?

Mr. GOODLATTE. I would be happy to yield to the gentleman from

California.

Mr. BERMAN. Could the gentleman illustrate just what are the

damages to an Internet service provider from conduit which would

violate Subsection (A) of the amendment?

Mr. GOODLATTE. In many instances, an overload of spam can

cause the server of the Internet service provider to crash, and that

can have very substantial loss of all kinds of advertising revenue,

of harm to their business reputation and so on. But in many instances, they are not heavily harmed themselves, but their cus-
56

tomers are harmed by being overloaded with e-mail, many of which

is of a fraudulent, illegal character.

And if we simply wait for people to report to the various law enforcement agencies to attempt to enforce this and not give the

Internet service providers, who are really the carrier in this case,

the incentive to do this, what you wind up having is no action

taken at all to address this problem. So this really adds some teeth

to our legislation, and I think makes it, frankly, more competitive

with the measure that passed the full House of Representatives

last year by a 427 to 1 vote.

Mr. BERMAN. So, in effect, this is to give sort of real meaning to

what we’re trying to discourage through the provision by providing

a relatively easy way to remedy the problem.

Mr. GOODLATTE. Without causing a proliferation of litigation——

Mr. BERMAN. Thank you.

Mr. GOODLATTE. It is narrowly targeted——

Mr. FRANK. Would the gentleman yield?

Mr. GOODLATTE. Yes, I would.

Mr. FRANK. I just had a question. Is this going to be precedential

now, giving real meaning to what we do? I wonder if that is something we are going to follow, and——

Mr. GOODLATTE. No, I have cited the——

Mr. FRANK.—it can be very complicated.

Mr. GOODLATTE. We’ve already given real meaning in the past.

Mr. SCOTT. Mr. Chairman?

Chairman SENSENBRENNER. Okay. The gentleman from Virginia

is recognized for 5 minutes.

Mr. SCOTT. Mr. Chairman, I rise in support of the amendment,

but I had some questions to ask about what it does. It’s been suggested that this, the amendment in the nature of a substitute with

the amendment, will stop the flood of unsolicited e-mails. But the

way I read it, it doesn’t stop anything except anonymous or where

the return address is misleading. Truthful e-mail, where it’s coming from the vendor himself, and they properly identified, it seems

like it’s unlimited under the amendment in the nature of a substitute and the amendment. There’s no limit to the amount; is that

right?

Mr. GOODLATTE. If the gentleman would yield——

Mr. SCOTT. Yeah.

Mr. GOODLATTE. That is partly correct, and that goes back to

what the gentleman from Massachusetts said about giving individuals the right to be able to take their name off. That’s not in our

legislation, but it may well be because it is provided for in the legislation offered——

Mr. SCOTT. There’s nothing in the bill that addresses fraud or

annoyance, one way or the other.

Mr. GOODLATTE. Well, but here’s the point. The Internet service

providers have mechanisms right now in place through technology

to help cut back on the flood of that type of commercial e-mail. But

what happens is that those who are bent upon committing fraudulent activity, which the chairman’s mark addresses——

Mr. SCOTT. Well——

Mr. GOODLATTE. If I could just finish that point.

Mr. SCOTT. You mentioned fraud. Where is fraud?
57

Mr. GOODLATTE. The fraud is in the, in the chairman’s

underlying—— Mr. SCOTT. I don’t see fraud.

Mr. GOODLATTE. You have to look at the chairman’s substitute.

Mr. SCOTT. I’m looking at it. I don’t see fraud. I see materially

false and misleading. So, if you have the wrong address, whether

it’s fraudulent or not, if you have your right address and you’re annoying people, that’s no problem, but false and misleading as to the

identity of the person means anonymous—— Mr. GOODLATTE. If the gentleman would yield, what commonly

happens with this problem is that people steal other people’s identification and use that to send the spam because the Internet service provider is able to detect large blocks of data being submitted,

and what happens is there is they’re able to block that. But if you

break it down into a lot of smaller blocks, using other people’s identity that you have falsely used, you are then able to circumvent the

system. This is targeted at that activity.

Mr. BOUCHER. Would the gentleman from Virginia yield?

Mr. GOODLATTE. I yield to my colleague from Virginia.

Mr. BOUCHER. I thank the gentleman for yielding.

The question that the gentleman from Virginia has asked is how

is the bill effective in addressing the situation where the spammer

has not falsified any of the header information, where he’s using

his own address? And the answer is that the Internet service providers have now begun to use software that can detect large volumes of e-mail that originate from a common source simultaneously and the software used by the ISP correctly interprets that

e-mail to be spam. And so that filter employed by the ISP is sufficient to keep that spam from reaching the recipient.

What the spammers have now started to do, in order to defeat

that software, is change in each of the items of e-mails that goes

out and each of the items of spam that is sent a little bit of the

header information. The origination information may be altered in

each subsequent message. The time that it is sent may be altered

in each subsequent message just sufficiently to defeat the software

that is used by the ISP as the filter.

And what the legislation that the gentleman from Virginia, Mr.

Goodlatte, has offered, which I am pleased to co-sponsor, and what

his amendment, which I strongly support, would help to implement, is a means of criminalizing the way in which spammers are

now defeating the ISP’s software because it would say that you

cannot falsify any of the header information. It is a sound approach. It entirely addresses the concern that my friend, to my left,

from Virginia—that is where he normally sits, on my left—has

raised, and I think it is the right way, in the most minimalist possible fashion, to address the genuine problems associated with

spam.

And I thank the gentleman for yielding.

Mr. SCOTT. Reclaiming my time, Mr. Chairman. I think there’s

a typo at the bottom of Page 1, lines 15 and 16, ‘‘such’’ is mentioned twice, and I think that could probably be taken out by unanimous consent.

I yield back.

Chairman SENSENBRENNER. The question is on——

Mr. WATT. Mr. Chairman?
58

Chairman SENSENBRENNER.—the adoption of the Goodlatte

amendment.

For what purpose does the gentleman from North Carolina seek

recognition?

Mr. WATT. I move to strike the last word.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. WATT. Mr. Chairman, unless I’m missing something here, we

have started with a bill that was designed to protect consumers

from annoying spam and have ended up with a bill that really

doesn’t do anything to help consumers be protected from annoying

spam. And while this is a better bill than—probably drafted better,

it does less. And this amendment, while it is better than nothing,

doesn’t give any remedy to the ultimate customer, which is, I

mean, we didn’t start off necessarily to protect the ISPs. I thought

we started off this bill to protect customers.

So, unless I’m missing something here, let me just ask Mr. Goodlatte a question. In the—in the phone context, is it only the phone

company that can file a lawsuit against somebody who keeps calling you, and you tell them to quit calling or is it the customer?

Mr. GOODLATTE. I don’t know the answer to that. I suspect it

may also include the customer. However——

Mr. WATT. Okay. But that’s the parallel here. We’ve given a—

your amendment gives a cause of action to the phone company, the

service provider, but no cause of action to the customer.

Mr. GOODLATTE. Wood the gentleman yield?

Mr. WATT. I’ll yield.

Mr. GOODLATTE. I understand the gentleman’s point. However, in

no way, shape or form is an Internet service provider to be compared with the phone company which takes a complete hands-off

approach to what is going over its lines. The Internet service provider very much right now is very dedicated to controlling the

amount of spam that goes over their system, and so we’re—they’re

the best tool, far better than the individual consumer who, for $5,

is not going to go to court to protect themselves against spam. But

the Internet service provider faces a bigger problem.

Mr. WATT. Then what’s the problem with giving an individual

customer the right to file a cause of action? I mean, that’s the ultimate protection we have. And, you know, we can criminalize this

stuff, you’re absolutely right. The criminal authorities are going to

do absolutely nothing in this context. The ISP may or may not do

anything, but the ultimate beneficiary of this bill ought to be the

customer, it seems to me. And——

Mr. GOODLATTE. I understand the gentleman’s concern, but I do

not believe that will be an effective remedy. It’s a far more effective

remedy to have the ISP——

Mr. WATT. Let me see if I can get this——

Mr. GOODLATTE.—power to protect the consumer.

Mr. WATT. Let me see if I can get this squarely before us, Mr.

Chairman. I have an amendment to the Goodlatte amendment at

the desk.

Chairman SENSENBRENNER. The gentleman has been recognized

to strike the last word. You know, you’ve got to offer your amendment at the beginning.
59

The gentleman from California—well, the gentleman from North

Carolina still has the time.

Mr. WATT. I ask unanimous consent to offer the amendment.

Chairman SENSENBRENNER. Without objection, and the clerk will

report the amendment. The clerk is reporting the Watt amendment.

The CLERK. Amendment offered by Mr. Watt to the Goodlatte

amendment to the amendment in the nature of a substitute to H.R.

718. On Page 2, after line 19, insert the following: ‘‘(c) Private

Right of Action—’’

Mr. WATT. Mr. Chairman, I ask unanimous consent the amendment to the amendment be considered—— Chairman SENSENBRENNER. Without objection, so ordered.

[The amendment follows:]

Watt Amendment To Goodlatte Amendment

To H.R. 718

Offered by Mr. Sensenbrenner and Mr. Conyers

On page 2, after line 19, insert the following:

‘‘(c) Private Right of Acton.—

‘‘(1) Actions authorized.—A provider of Internet access service or

a customer of such provider, if otherwise permitted by the laws or

rules of a court of a State, may bring in an appropriate court of

that State, or, if such laws or rules do not so permit, may bring

in an appropriate Federal court, an action to recover for actual or

statutory damages, as provided in subsection 2, and for costs, as

provided in subsection 3.

‘‘(2) Award of Damages.—A person committing a violation of subsection (a) is liable to a provider of Internet access service or a customer of such provider for either—

‘‘(A) the actual damages suffered by the provider of Internet access service; or

‘‘(B) statutory damages, as provided in this paragraph. At any

time prior to final judgment in an action, a provider of Internet

access service may elect to recover an award of statutory damages for each violation of subsection (a) in the sum of $5 per

violation, not to exceed a total of $1 million: Provided, That,

during any one-year period for which the defendant has transmitted in excess of 20 million unsolicited commercial electronic

mail messages, no such limit on liability shall exist.

‘‘(3) Attorneys Fees.—In any action brought under paragraph (1),

the court may, in its discretion, require the payment of the costs

of such action, and may assess reasonable costs, including reasonable attorneys’ fees, against any person found to have committed

a violation of subsection (a).’’.

Chairman SENSENBRENNER. And the gentleman from North

Carolina is recognized for 5 minutes.

Mr. WATT. Thank you, Mr. Chairman. I hope this came out good

enough on the copy because I wrote it in.

Basically, what I’m doing, in two places, one on the first line, on

the first line of subparagraph (c), I’m inserting language that

would give a customer the same right to a cause of action as the

Internet access service provider.
60

And in paragraph (2), also, subparagraph (2), I’m inserting that

same, the same language.

Ms. LOFGREN. Read it, Mel, because you can hardly read it. What

is it, ‘‘or a customer—’’

Mr. WATT. It says, ‘‘A provider of Internet access service or a customer of such provider,’’ and that gets inserted on—in that first

line, and it gets inserted in the second line of subparagraph (2).

Ms. LOFGREN. Mr. Chairman?

Mr. WATT. Now, maybe—maybe this will never be used, but I, I

mean, if I’m a customer, I think all of this is designed for the benefit of the ultimate customer. The Internet was not designed for the

ISPs, the—it wasn’t, I mean, any more than telephones were designed for the telephone company. Now maybe that’s not a good

parallel. I acknowledge that there is a difference, but I don’t think

criminalizing this is going to make a snip of difference in what

happens in our life. The criminal law is never going to address this

issue, and I don’t think Internet service providers are going to be

the ultimate people who address this issue. If you don’t give the

right to the ultimate customer, then I think it’s never going to be

addressed.

Mr. GOODLATTE. Mr. Chairman?

Chairman SENSENBRENNER. Would the gentleman yield back the

balance of his time? Would the gentleman yield back? Mr. Watt?

Mr. WATT. I do, yes, Mr. Chairman.

Chairman SENSENBRENNER. For what purpose does the gentleman from Virginia, Mr. Goodlatte, seek recognition?

Mr. GOODLATTE. Move to strike the last word.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. GOODLATTE. Thank you, Mr. Chairman.

Mr. Chairman, I will have to oppose this amendment because I

think it’s going to put us back in the direction of the major complaint about the legislation passed out of the Commerce Committee

that it could provide a proliferation of litigation. I don’t know if it

will or not. It provides for attorneys’ fees so somebody may think

that because it provides for attorneys’, even if they only have $5

in damages, that they’re going to go ahead and bring a lawsuit for

that purpose. I don’t think that is necessary.

And I think the clear distinction here between this and the right

of action that I don’t know, but I assume may exist, under the earlier law related to faxes is that Internet service providers do have

a very strong incentive, I do believe they will be in there aggressively combating those who flagrantly abuse this law and who do

a multitude of faxes to thousands of people, no one of whom has

any real incentive to take the action here, but they clearly do, and

I think that we can narrowly provide for a way to give consumers

very good protection without being accused of opening up—this up

to a proliferation of litigation, and therefore I have to oppose the

amendment to the amendment.

Ms. LOFGREN. Would the gentleman yield?

Mr. GOODLATTE. I yield to the gentlewoman.

Ms. LOFGREN. Thank you for yielding.

I agree that this amendment offered by my esteemed colleague

is one that I cannot support, and it’s not because I don’t care about

consumers versus ISPs, it’s we should not legislate where there is
61

no need for passing laws. And right now the technology is more efficient to protect us than a Federal law. I mean, there are free sites

that if you e-mail the offense—the offending spam to them for free,

they will block all further spam.

I mean, there’s—we don’t need to pass a law. We don’t need to

clog up courts because the technology is way ahead of what we’re

doing here, and therefore I, although I appreciate the motivation

of the amendment, I don’t think it’s an appropriate thing to do, and

I still have reservations about the underlying Goodlatte amendment, at least as to 2(B).

But I yield back, and I thank the gentleman for yielding.

Mr. ISSA. Mr. Chairman?

Mr. GOODLATTE. I yield to the gentleman from California.

Mr. ISSA. I’ll make it very quick. I see that there is no reason,

again, for this amendment to Mr. Goodlatte’s amendment. However, trying to kill two birds with one stone, for my colleagues,

please understand from my experience specifically in this industry

that what Mr. Goodlatte is trying to do here is to provide a legal

remedy for that which cannot easily be technologically caught, and

that is extremely important because this is a tool that the ISPs do

not have today, and that is the proliferation of ‘‘sneaky’’ mail, if

you will, this fraudulent mail.

By giving the ISPs the ability, on behalf of their customers, to

provide this type of protection for themselves and their paying customers, we do what we really need to do, while both the ISP and

the individual customer, with Outlook and other e-mail-receiving

devices, have the ability to screen those pieces of mail which have

a consistent address after the first time.

So, between the ISP and the consumer, we have tremendous

power in the technology today, and I recommend that you look favorably on the Goodlatte amendment because it takes the one piece

of the puzzle that doesn’t exist today, it closes that loophole, and

I believe we will all benefit very quickly from this change in the

power of the ISP. And then if it doesn’t work completely, I will be

the first to come back to this body and say we have to do more.

But I believe this will take care of 99 percent.

Ms. JACKSON LEE. Would the gentleman yield? Would the gentleman yield?

Mr. ISSA. I’d be happy to yield to the gentlewoman from Texas.

Ms. JACKSON LEE. Let me, first of all, I support your amendment, Mr. Goodlatte, and taking the gentleman’s comments, the

prior speaker’s comments, Issa, comments about the value of this

particular amendment to the ISP community, why not give the

same limited leverage, if you will, to a customer, as Mr. Watt’s

amendment has offered?

And I guess I will ask the question and yield back to you. Does

your amendment do anything, and this collective management

amendment, do anything on the issue of pornography? Because

when the witnesses were before on the other bill, the Wilson bill,

they were talking about that. When I say ‘‘the witnesses,’’ the

members who were presenting their bills, they were talking about

that. Can you help me on both the question as to why we wouldn’t

want to give the same privilege to the customer, and also my last

point is whether or not this is a criminal action. I heard Mr. Bou-
62

cher say that, and I don’t see it. It looks like a private right of action.

I yield back to the gentleman.

Mr. GOODLATTE. Well, my time has expired. If the gentleman

would yield—if the chairman would yield me an additional minute.

Ms. JACKSON LEE. Can I yield him an additional minute?

Chairman SENSENBRENNER. Without objection, the gentleman is

recognized for an additional minute.

Mr. GOODLATTE. I thank the chairman.

Ms. JACKSON LEE. I yield back. Thank you, Mr. Goodlatte.

Mr. GOODLATTE. In response to the gentleman, yes, my amendment will be a very effective tool to combat pornography on the

Internet because it will, that is one of the prime violators of this

false identification that is used for people to spam other people.

You’ll hear some friends of yours or constituents say, ‘‘Well, I got

somebody who I thought was a friend of mine sent me pornographic material over the Internet.’’ Well, they didn’t send it to

you. Someone stole their identification and sent it to them, and this

is a very serious problem. The Internet service providers want this

amendment. They strongly support this amendment in order to be

able to combat that.

My reservation about going a step further of giving it to the individual consumer is that the criticism we have faced is that we’re

going to provide for a proliferation of litigation, particularly where

we allow for attorneys’ fees in this amendment. And, therefore, people who have a $5 statutory damage I don’t think ought to be

bringing an action like that. Let me consoli—they can also—they

can complain to the Internet service provider. They can also complain to the various Government enforcement agencies.

Chairman SENSENBRENNER. The time of the gentleman has expired.

Mr. BERMAN. Mr. Chairman?

Chairman SENSENBRENNER. For what purpose does the gentleman from California, Mr. Berman, seek recognition?

Mr. BERMAN. Thank you, Mr. Chairman.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. BERMAN. Yes. The gentleman from Virginia is persuading of

the wisdom of his amendment for two reasons: One is there is actual damages to the Internet service provider when the volume of

mail as a result of this kind of false header, spam mail causes the

server to crash, but then the ISP can also be sort of a surrogate

plaintiff for all the annoyances and inconveniences and other damages that the individual consumers face.

It’s hard for me to quite understand why giving the individual

consumer the right of action automatically results in proliferation.

You seem to think it is the attorneys’ fees part of that that makes

that so. But the one flaw in this is you have two provisions in here,

actual damages and statutory damages. Actual damages that the

ISP suffers they collect for, if it’s not greater than the statutory

damages. Now, as surrogate, they collect what could be substantial

amounts of funds from the offender on behalf of the consumer, but

the provision to return it to the consumer isn’t included in this

amendment.
63

So it almost—this becomes a new revenue source for them for

damages they didn’t suffer, the consumer suffered.

Mr. GOODLATTE. If the gentleman would yield, that problem has

been anticipated. That’s why we put a, I think, a low cap on this.

It’s comparable to the low cap that is on the other previous bill.

Mr. BERMAN. Oh, I see.

Mr. GOODLATTE. And the hope is that it will be a deterrent rather than an incentive to do that.

Mr. FRANK. Mr. Chairman?

Chairman SENSENBRENNER. Does the gentleman yield back?

Mr. FRANK. Mr. Chairman?

Chairman SENSENBRENNER. For what purpose does the gentleman from Massachusetts seek recognition?

Mr. FRANK. To strike the requisite number of words.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. FRANK. I want to speak in favor of the gentleman’s from

North Carolina’s amendment. The gentlewoman from California argued that the gentleman from North Carolina’s amendment is unnecessary because of technology, and I think she acknowledged her

uncertainty about her feelings about the underlying amendment. I

would think her argument would be, if it’s technologically unnecessary for the Watt amendment, then the Goodlatte amendment is

also technologically unnecessary, and I appreciate the consistency

with which she stated her point. But it does seem to me it applies

with equal force, both to the underlying amendment and the secondary amendment.

And I’m all for the secondary amendment. I think we’re getting

kind of ‘‘big brotherly’’ here. The notion is that the consumer need

not worry. Her independent service provider will take care of her,

and I think people may have developed this kind of warm relationship with their ISP, and they may be prepared to designate the ISP

as their next friend and have the ISP be the defender of their

rights. But in those cases where people aren’t prepared to yield

their rights to the ISP, I think they ought to be able to retain

them.

And, also, it seems to me there are a couple of points here. One,

the gentleman from Virginia correctly said the ISP can step in

when this becomes a flagrant abuse. Well, what’s a flagrant abuse

as an ISP as a whole may be a higher threshold than a flagrant

abuse to an individual group of individuals. It may well be that

particular individuals are targeted by particular marketing operations, but this doesn’t rise to the level of interference with the

ISP.

It is possible for an individual to be given serious problems with

an excess of unwanted commercial e-mail long before it’s going to

crash the system. And so it does seem to me that the logic of giving

this right of action to protect, with all of the safeguards that the

gentleman said. The gentleman from North Carolina’s amendment

plugs into the gentleman from Virginia’s scheme. So the caps, and

the low level, the $5, that’s all in there.

I just think that there is really very little argument for the notion that the interest of the individual consumers and the ISP will

be so substantially identical that they can be merged and that the

individual can have that right given to the ISP.
64

There is also the case that there may be some other commercial

interests involved between the ISP and some of the marketers.

Maybe there are other factors here. But the general point is I think

the gentleman from Virginia has a very thoughtful scheme. It is a

reasonable way to go.

The flaw I think is that it assumes that there is, as I said, an

identity or a virtual identity between the individual consumer and

the ISP. And some of the arguments he gave about why the ISP

will jump in, and clearly they would, don’t apply. There may be

consumer problems that don’t reach that level. So I think that the

gentleman from North Carolina’s amendment is a very reasonable

one, and I intend to support it.

Ms. HART. Mr. Chairman?

Chairman SENSENBRENNER. For what purpose does the gentlewoman from Pennsylvania, Ms. Hart, seek recognition?

Ms. HART. Mr. Chairman, to address the issue that was raised

by——

Chairman SENSENBRENNER. The gentlewoman is recognized for 5

minutes.

Ms. HART. Thank you, Mr. Chairman. I move to strike the last

word.

In response to the issue raise by Ms. Jackson Lee regarding none

of these amendments addressing the issue that was brought up at

our hearing regarding pornography, I do have an amendment at

the desk to offer that may address her concerns.

I yield back the balance of my time.

Ms. JACKSON LEE. Mr. Chairman?

Chairman SENSENBRENNER. For what purpose does the gentlewoman from Texas seek recognition?

Ms. JACKSON LEE. To strike the last word, Mr. Chairman.

Chairman SENSENBRENNER. The gentlewoman is recognized for 5

minutes.

Ms. JACKSON LEE. Let me, the, as I indicated, I am supporting

Mr. Goodlatte’s amendment, but I’m also supporting Mr. Watt’s

amendment. What I would suggest to Mr. Goodlatte is the same attributes attributed to the ISP community, which is that they would

not be necessarily litigious, unnecessarily; meaning just to litigate.

They have a cause. And I would say to you that users likewise, consumers, will pose or be in the same category, that their real concern is to be able to use the Internet unfettered and to not be attacked, if you will, by a proliferation of unnecessary or unsolicited

intrusions.

I would offer to say that this makes your amendment better, if

you can respond to their concerns, as well, and I just looked at my

colleague, Mr. Weiner, and he turned and said class action. He’ll

probably speak on it himself. But the point is there are a variety

of ways that you can handle this. I think that we are doing a much

better task of responding to the concerns if we allow the opportunity for the consumer to likewise press their cause along with the

ISP community.

The other point is I was not clear—I asked this question before—

this is a private right of action, as I understand it. This is not a

criminal action. And if anyone has a response to that, and I heard

my colleague from Virginia, Mr. Boucher, I thought, say criminal.

I don’t want to put words in his mouth, but this looks like a private
65

action amendment versus criminal charges. And if anyone has a

basis of correcting that, I will——

Mr. WEINER. The base bill——

Ms. JACKSON LEE. I’m sorry. I’ll yield to Mr. Weiner.

Mr. WEINER. I think the reference was that the base bill has a

criminal charge.

Ms. JACKSON LEE. The base bill. Thank you very much for that

clarification.

In any event, let me just say that I think that the amendment

should include protections for consumers, as well, and I would support both amendments.

I yield back.

Mr. WEINER. Mr. Chairman?

Chairman SENSENBRENNER. For what purpose does the gentleman from New York, Mr. Weiner, seek recognition?

Mr. WEINER. Move to strike the last word.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. WEINER. Thank you, Mr. Chairman.

What troubles me in this debate about the Goodlatte amendment

is we seem to be misunderstanding who the victim of spamming is

and who we intended to be addressed when the original, when H.R.

718 was considered in this committee. The victim is the recipient

of the e-mail. The victim who has very little recourse that I think

we’re trying to address with all of the legislation is that person.

I don’t dispute Mr. Goodlatte’s point that the ISP has the incentive. I would argue they also have the tools to defend themselves.

There has been, several members here have talked about the technological advantage that have allowed ISPs to foil spammers that

they wanted to stop. This seems to me the ISPs have a technical

problem that is going to find, in eventuality, a technical solution.

Mr. Goodlatte has been forceful, and I think very clear-minded,

in this committee in reminding us that very often technical problems need technical solutions. The victim of spamming is the individual. And I have to tell you my concern about the Goodlatte

amendment is that, frankly, the idea that this is going to weed out

fraud I think might be oversold. I think it’s going to allow ISPs to

harass its customers that it doesn’t like.

Materially false or misleading, that’s not a very narrow standard.

If someone puts bob at mailhouse.com or joe at mailhouse.com, and

there’s no one named Joe there or Joe Smith, and there’s no one

named Joe Smith or administrator, I don’t think that this necessarily solves the problem that we seek to.

I’m concerned that we’re trying, with the Goodlatte amendment,

to give the ISPs something that they should be doing technologically, and all its indications are that they are. The victims of

spamming is the individual who gets spammed. And I think that

if you’re going to give some civil course of action, there is no—there

hasn’t been any argument from the other side, from the opponents

of the amendment to the amendment, about why it is they

shouldn’t have that right.

You can say, well, that there’s a greater incentive on the ISPs

to go out and do it. Well, perhaps that’s right. It’s not really their—

it’s not really their problem to solve, and if it is, they’re the ones
66

that have the technology to be able to solve the problem, and I expect they will.

Mr. CANNON. Would the gentleman yield?

Mr. WEINER. Certainly.

Mr. CANNON. May I just point out I think, referring back to the

gentlewoman from California when she said that’s the reason we

have a delete button, people on the Internet are not victims. This

is not a matter of victimization. Whatever your conclusions about

this amendment, I don’t think we need to be thinking in terms of

people whom we’ve empowered with technology as being victims.

Thank you.

Mr. WEINER. Oh, I mean, obviously there’s got to be a victim and

a crime, and we have a bill here that—crime—— Mr. CANNON. This bill does not have crime. That’s the underlying

bill, as you pointed out just a moment ago.

Mr. WEINER. I don’t know. It says here in the committee report

that the first spamming offense is punishable by a fine up to—of

a fine up to $100,000 if death does not result.

I mean, spamming is pretty bad. It rarely results in death.

Mr. WATT. Will the gentleman yield?

Mr. WEINER. The second offense can trigger a fine, imprisonment

of not more than 1 year or both.

It sounds to me, Mr. Cannon, that that is a crime.

I would be glad to yield.

Mr. WATT. I would say to the gentleman that the underlying civil

action is a civil action for the same misconduct that the underlying

bill covers. It doesn’t cover anything beyond the underlying bill. So

this is not a generalized cause of action just because you get

spammed. This is a cause of action for the misconduct that occurs

under the underlying bill for which you have a criminal penalty,

and now you turn around and say that this criminal activity

doesn’t even justify a civil cause of action.

Mr. WEINER. If I could just reclaim my time, very briefly. Another thing that’s complex about this is materially false and misleading to whom? To the recipient? The ISP is then going to step

in, and then they’re going to bring a case to court saying, ‘‘Well,

the ISP found it misleading,’’ or are they going to have then bring

in the recipients of the spam and get them individually on the

stand and say, ‘‘Well, did you find this misleading? Was this materially false, as far as you’re concerned?’’

The ISP is not the victim here. So to give them the right to go

to court when they have other tools at their disposal; i.e., a program which manages to stop this program.

I yield back my time.

Chairman SENSENBRENNER. The question is on the amendment

offered by the gentleman from North Carolina, Mr. Watt to the

amendment offered by the gentleman from Virginia, Mr. Goodlatte.

Those in favor will signify by saying aye.

Opposed, no.

The nos appear to have it.

Mr. WATT. Could we have a——

Chairman SENSENBRENNER. A recorded vote is ordered.

This in favor of the Watt amendment will, as your names are

called, vote aye. Those opposed, will be vote no, and the clerk will

call the roll.
67

The CLERK. Mr. Hyde?

[No response.]

The CLERK. Mr. Gekas?

Mr. GEKAS. No.

The CLERK. Mr. Gekas, no. Mr. Coble?

Mr. COBLE. No.

The CLERK. Mr. Coble, no. Mr. Smith?

Mr. SMITH. No.

The CLERK. Mr. Smith, no. Mr. Gallegly?

[No response.]

The CLERK. Mr. Goodlatte?

Mr. GOODLATTE. No.

The CLERK. Mr. Goodlatte, no. Mr. Chabot?

Mr. CHABOT. No.

The CLERK. Mr. Chabot, no. Mr. Barr?

[No response.]

The CLERK. Mr. Jenkins?

Mr. JENKINS. No.

The CLERK. Mr. Jenkins, no. Mr. Hutchinson?

Mr. HUTCHINSON. No.

The CLERK. Mr. Hutchinson, no. Mr. Cannon?

Mr. CANNON. No.

The CLERK. Mr. Cannon, no. Mr. Graham?

[No response.]

The CLERK. Mr. Bachus?

[No response.]

The CLERK. Mr. Scarborough?

[No response.]

The CLERK. Mr. Hostettler?

[No response.]

The CLERK. Mr. Green?

Mr. GREEN. No.

The CLERK. Mr. Green, no. Mr. Keller?

Mr. KELLER. No.

The CLERK. Mr. Keller, no. Mr. Issa?

Mr. ISSA. No.

The CLERK. Mr. Issa, no. Ms. Hart?

Ms. HART. No.

The CLERK. Ms. Hart, no. Mr. Flake?

[No response.]

The CLERK. Mr. Conyers?

Mr. CONYERS. Aye.

The CLERK. Mr. Conyers, aye. Mr. Frank?

Mr. FRANK. Aye.

The CLERK. Mr. Frank, aye. Mr. Berman?

Mr. BERMAN. Aye.

The CLERK. Mr. Berman, aye. Mr. Boucher?

[No response.]

The CLERK. Mr. Nadler?

Mr. NADLER. Aye.

The CLERK. Mr. Nadler, aye. Mr. Scott?

[No response.]

The CLERK. Mr. Watt?

Mr. WATT. Aye.

The CLERK. Mr. Watt, aye. Ms. Lofgren?
68

Ms. LOFGREN. No.

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee?

Ms. LOFGREN. No.

The CLERK. I’m sorry?

Ms. LOFGREN. I said no.

The CLERK. Oh, I’m sorry. Ms. Lofgren, no.

Ms. Jackson Lee?

Ms. JACKSON LEE. Aye.

The CLERK. Ms. Jackson Lee, aye. Ms. Waters?

Ms. WATERS. Aye.

The CLERK. Ms. Waters, aye. Mr. Meehan?

[No response.]

The CLERK. Mr. Delahunt?

[No response.]

The CLERK. Mr. Wexler?

[No response.]

The CLERK. Ms. Baldwin?

Ms. BALDWIN. Aye.

The CLERK. Ms. Baldwin, aye. Mr. Weiner?

Mr. WEINER. Aye.

The CLERK. Mr. Weiner, aye. Mr. Schiff?

Mr. SCHIFF. Aye.

The CLERK. Mr. Schiff, aye. Mr. Chairman?

Chairman SENSENBRENNER. No.

The CLERK. Mr. Chairman, no.

Chairman SENSENBRENNER. Are there additional members in the

room who wish to cast/change their vote?

The gentleman from Alabama?

Mr. BACHUS. No.

The CLERK. Mr. Bachus, no.

Chairman SENSENBRENNER. Anybody else? If not, the clerk will

report.

The gentleman from Arizona, Mr. Flake?

Mr. FLAKE. No.

The CLERK. Mr. Flake, no.

Chairman SENSENBRENNER. The gentleman from Georgia, Mr.

Barr?

Mr. BARR. No.

The CLERK. Mr. Barr, no.

Mr. Chairman, there are 10 ayes and 17 nays.

Chairman SENSENBRENNER. And the amendment to the amendment is not agreed to.

Ms. LOFGREN. Mr. Chairman?

Chairman SENSENBRENNER. The gentlewoman from California,

for what purpose do you seek recognition?

Ms. LOFGREN. I have an amendment to the amendment at the

desk.

Chairman SENSENBRENNER. The clerk will report the amendment

to the amendment.

Ms. LOFGREN. I ask unanimous consent that the amendment be

considered as read.

Chairman SENSENBRENNER. Well, let’s take a look. The clerk will

report——
69

The CLERK. Amendment offered by Ms. Lofgren to the amendment offered by Mr. Goodlatte to the amendment in the nature of

a substitute to H.R. 718.

In Subsection (c)(2)——

Chairman SENSENBRENNER. Without objection, the amendment is

considered as read.

[The amendment follows:]

Chairman SENSENBRENNER. And the gentlewoman from California will be recognized for 5 minutes.

Ms. LOFGREN. Thank you, Mr. Chairman.

In looking at the underlying Goodlatte amendment, I guess I’m

becoming convinced that there’s value in providing a very clear

cause of action for an ISP that has been damaged through the volume of e-mails. And I mentioned earlier an instance, it wasn’t an

ISP issue, but it was a situation akin to this, where a company in
70

my county proceeded on a trespass cause of action successfully because the intrusion on its system actually caused damage to their

servers, and I think that that is fair enough. But it’s not necessarily clear that that cause of action is provided for in every

State, and certainly under Federal law. And so I think there is

value in providing the clear protection for someone damaged in

that matter.

However, I am not convinced that Section (2)(B), which I would

strike under this amendment to the amendment, is necessary. It

seems to me that it would provide the opportunity for individuals

who did not suffer much damage to go in and recover large

amounts of money. Now, I understand there’s a million-dollar cap,

but to me half a million dollars is real money too. I mean, that’s

a lot of money, at least in my household. And so I’m not sure that

it’s—that’s necessary.

I also think, and I think this would be difficult to prove, but

there was a lot of discussion about providing rights for the recipients of e-mail, that they are the ones who really should be the subject of our concern. And so in my amendment, I would suggest that

we, in addition to the ISPs who could bring action, we add e-mail

recipients in Section (c)(1) and allow individuals, as well as ISPs,

to go to court and prove and recover their actual damages, not a

statutory scheme.

Now I’m not sure how an individual is going to prove that they

had an actual damage from spam, but if they can do so, more

power to them. I think that this proposal would really codify the

trespass type of cause of action, would allow for ISPs to correct

their actual damages from attacks or really service access problems, and would avoid the concern that I have, which is that we

are legislating in an area that we don’t need to legislate, where the

technology will provide more protection than the Federal law.

I don’t think that we ought to be passing laws unnecessarily in

the area of the Internet, and I hope that the—— Mr. CONYERS. Would the gentlelady yield?

Ms. LOFGREN. I would certainly yield to the gentleman.

Mr. CONYERS. Well, I think that this is a more perfect solution

really. I’ve been concerned about the ISPs getting away with a million dollars in damage awards. These guys have good lawyers too.

So let’s, let’s turn it back to the e-mail user, to the person that got

spammed, and I think you’d do both of these in a very commendable way. I’m going to support the amendment.

Ms. LOFGREN. Thank you. Mr. Chairman——

Mr. NADLER. Mr. Chairman?

Chairman SENSENBRENNER. The time belongs to the gentlewoman from California.

Ms. LOFGREN. Could I yield to Mr. Goodlatte, who I think is——

Mr. GOODLATTE. I seek my own time.

Ms. LOFGREN. All right. I will yield to the gentleman.

Mr. NADLER. Would the gentlelady yield?

Ms. LOFGREN. Yes.

Mr. NADLER. As I read your amendment, you do partially what

Mr. Scott wanted to do—I’m sorry, what Mr. Watt wanted to do.

I don’t know why I did that—what Mr. Watt wanted to do. But

then you eliminate the actual damages, I mean, the statutory damages.
71

Ms. LOFGREN. Correct.

Mr. NADLER. And you limit it to actual damages. Can you tell me

under this, if the bill were amended as you want, what the measure of damages from a spam is? How do you measure those damages?

Ms. LOFGREN. Well, that’s why I’m saying I’m not sure how an

individual proves up actual damage from receiving an e-mail that

they can delete, but I will tell you how an ISP would prove actual

damages, which is the volume itself causes their computers to

crash, requires them to go out and purchase ten more servers because they can’t handle the volume of unwanted e-mail. That’s the

kind of case that’s been put together on the trespass cases, and I

think that’s fair and legitimate.

Mr. NADLER. Can I ask you a further question?

Ms. LOFGREN. Certainly.

Mr. NADLER. If the bill were banning unsought e-mail, I understand your measure of damages for the ISP, but is banning—— Chairman SENSENBRENNER. The time of the gentlewoman has expired.

Mr. NADLER. Mr. Chairman, could I ask unanimous consent for

one additional minute?

Chairman SENSENBRENNER. Without objection.

Mr. NADLER. Thank you.

But the bill bans unsolicited fraudulent e-mail. How would the— and the measure of damages is they have to buy an extra, the

mach—the computer or whatever, how would they know when the

headers are fraudulent?

Ms. LOFGREN. Well, the Goodlatte amendment to the amendment

I think creates—it goes beyond the underlying bill. But I would

note that the underlying amendment put together by Mr. Conyers

and the chairman really relates to fraudulent headers, not to fraudulent content. And I agree with that because just because something’s on the Internet doesn’t make it exempt from the underlying

fraud statutes already in the criminal code. We don’t need to create

another criminal code for the Internet.

I believe my time has expired.

Chairman SENSENBRENNER. The gentlewoman’s time has once

again expired.

The gentleman from Virginia, Mr. Goodlatte?

Mr. GOODLATTE. Thank you, Mr. Chairman. I move to strike the

last word.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. GOODLATTE. Mr. Chairman, I must reluctantly oppose this

amendment. I have great respect for the gentlewoman, but I think

the gentleman from New York’s point is exactly the case here, and

that is that by removing the statutory damages, we’re taking out

the provision that is based upon the precedent of the 1991 law that

gives the Internet service provider the incentive to take an action

here in the cases that don’t involve circumstances where their system crashes, and they can actually show some significant damage.

But in those cases where, for example, you have the pornographic spammer that we’ve been talking about earlier, we are effectively taking away the incentive for them to act in response to

the complaints of their customers to take a collective action. We’re
72

not expanding the number of cases of litigation which she also does

by adding the individual recipient in here. But then if they can’t

show any actual damages under the law, they’re not going to take

an action and neither is the Internet service provider.

So I think this would have the contrary effect of what many on

the other side of the aisle spoke about earlier of wanting to have

some action taken. They wanted to go a step further than I wanted

to go, and many others wanted to go, and actually give that statutory damage to the individual, as well as to the ISP. But now we’re

going to go the opposite direction and not have any incentive for

any action to be taken, and we will not have this added tool, which

is based upon a law, a 1991 law, that has worked well to have a

strong disincentive.

The gentlewoman is right, a million dollars can be considered a

lot of money. The people we want to consider it a lot of money are

these fraudulent spammers. We want them to say, ‘‘Well, I’m not

going to risk a million dollars, so I’m not going to do this activity

any more,’’ and that’s why I must oppose the amendment.

Ms. LOFGREN. Would the gentleman yield for—— Mr. GOODLATTE. I would be happy to yield.

Ms. LOFGREN. As the gentleman knows, because we’ve had an opportunity to discuss this outside of the public hearing, I do believe

that there is a legitimate issue relative to sexually explicit e-mails

that I believe should be tagged so people can be alert, so that they

can delete them and not open them. But I think that the proper

remedy for that kind of damage or assault is to go directly towards

a requirement of labeling material that’s unsuitable for minors

rather than creating a statutory scheme.

Mr. GOODLATTE. Reclaiming my time. I respect that, but we’ve

had several court challenges on our ability to define exactly what

that is that must be labeled. Here we don’t get into that issue, and

there are plenty of other types of fraudulent, false, misleading

spam, where headers are stolen and so on, that doesn’t involve pornography, that consumers would also want to have addressed.

Mr. FRANK. Would the gentleman yield?

Mr. GOODLATTE. I’ve had the frustration—I will in just a second.

I’ve had the frustration myself of trying to unsubscribe when I’ve

gotten unsolicited commercial e-mail and have found that there’s

no way to find who it was that sent it to me because they used a

false e-mail address, and this tool will address that.

I yield to the gentleman from Massachusetts.

Mr. FRANK. I thank the gentleman.

The question of pornography has come up or sexually oriented

mail, and the gentlewoman referred to having markings on it, and

I know we’re going to get an amendment on that. I just want to

point out, and people said, ‘‘Well, if it’s got the marking on it, you

can then delete it.’’

I would also point out, for those people who find that they’re getting more e-mail than they can read, the marking might also be interpreted for them as a reason to open it. So we ought to be very

clear that the markings on the pornography can go both ways.

There might be a signal that this is something you want to read

or there might be a signal it’s something you don’t want to read,

it seems to me, that’s somewhat content neutral.

Chairman SENSENBRENNER. Would the gentleman yield back?
73

Mr. GOODLATTE. I yield back. Thank you.

Mr. WATT. Mr. Chairman?

Chairman SENSENBRENNER. For what purpose does the gentleman from North Carolina seek recognition?

Mr. WATT. Thank you, Mr. Chairman. First of all, I would like

to——

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. WATT. I’d like to request a division of the—— Chairman SENSENBRENNER. How does the gentleman propose to

divide the amendment?

Mr. WATT. I wish to divide the first part, the striking of subparagraph (B) from the rest of the amendment, and I obviously would

speak in favor of the rest of the amendment. It, more artfully,

does—— Chairman SENSENBRENNER. Okay. The question will be divided

in the amendment in front of the members, the first paragraph

which begins, ‘‘In subsection (2),’’ through the end of (B), closed

paren, period, is the first part that will be voted on, and then the

rest of the Lofgren amendment will be the second part that’s voted

on.

And the gentleman from North Carolina is recognized for 5 minutes.

Mr. WATT. Thank you, Mr. Chairman. I will be brief.

I’ve already spoken on the second part. I think Ms. Lofgren’s

wording is much more articulate than my wording was in the prior

amendment. It is essentially the same concept, however.

But once you, if we were to adopt the second part, basically, you

would—the first part would eviscerate whatever cause of action

there would be because the amount of effort it would take—well,

I can argue both sides.

Mr. CONYERS. Would the gentleman yield?

Mr. WATT. Let me argue both sides, as a good lawyer does. I

could argue, number one, that it might increase the amount of litigation because, basically, any kind of conceivable harm could be

the basis of a cause of action, but I think it’s more likely to wipe

out all causes of action because the harm to any individual would

be so de minimus that it would be virtually not in an individual’s

interests to file a cause of action.

Mr. CONYERS. Would the good lawyer yield?

Mr. WATT. Yes. Yes, sir.

Mr. CONYERS. Did the author seek a division?

Mr. WATT. Yes.

Mr. CONYERS. She did.

Ms. LOFGREN. No, I didn’t.

Mr. WATT. I did.

Mr. CONYERS. Oh, you did.

Mr. WATT. Yes.

Mr. CONYERS. But the author of the amendment that you’re dividing, did she seek an amendment—a division?

Mr. WATT. No.

Mr. CONYERS. Oh, she didn’t. Okay. I thank the good lawyer.

Mr. WATT. I yield to Ms. Lofgren.

Ms. LOFGREN. I would just note that unless we strike the statutory damage section, I would oppose the rest of the amendment be-
74

cause the whole point I’m trying to make is that if there—I don’t

want a lot of litigation about e-mail that you can delete. I don’t

think we ought to be creating a whole Federal statutory scheme for

a minor annoyance.

On the other hand, if you can prove that you have actually been

damaged, I think that having a clear cause of action, both for individuals, as well as ISPs, is appropriate. And so I think each member, my understanding of the rules has a right under our rules to

divide the question.

Chairman SENSENBRENNER. The chair has already ruled that the

question is divisible—— Ms. LOFGREN. Right.

Chairman SENSENBRENNER. Because any member may demand a

division of the question if there are two separate and distinct propositions. And in your amendment, there are two separate and distinct propositions. One is to strike the statutory damage and remedy and the other is to include recipients of e-mail as parties who

have standing to bring actions in the court.

Mr. WATT. Mr. Chairman, may I reclaim my time just briefly?

Mr. FRANK. Parliamentary inquiry.

Chairman SENSENBRENNER. The gentleman has got the time, and

you cannot take a gentleman from the floor with a parliamentary

inquiry. The gentleman from North Carolina may proceed.

Mr. FRANK. Will the gentleman yield for a parliamentary inquiry?

Mr. WATT. I’ll yield to the gentleman.

Mr. FRANK. I wonder whether it might resolve this situation if,

by unanimous consent, we retain the division, but vote it in reverse

order on the two propositions, so that the second proposition was

voted on first.

Chairman SENSENBRENNER. Without objection, proposition two

will be voted on—— Ms. LOFGREN. I object.

Chairman SENSENBRENNER. Objection is heard, and the gentleman from North Carolina——

Mr. WATT. Mr. Chairman, let me reclaim my time.

Chairman SENSENBRENNER. You have some time left.

Mr. WATT. First of all, they say the definition of a good compromise is one that is uncomfortable for both sides, and maybe Ms.

Lofgren has gotten us to a point where we are uncomfortable with

both sides. So maybe we ought to vote this up or down.

I think the private cause of action is worth having in the bill,

even though—even subject to striking out the statutory damages.

So I want to ask unanimous consent to withdraw my request for

a division of the question.

Chairman SENSENBRENNER. Without objection, so ordered.

Does anyone else demand a division of the question?

Going once, going twice.

[Laughter.]

Chairman SENSENBRENNER. If not, the question is on the adoption of the Lofgren amendment, in total, to the Goodlatte amendment.

Those in favor will say aye.

Opposed, no.

The nos appear to have it.
75

Ms. LOFGREN. Mr. Chairman, I’d ask a recall vote.

Chairman SENSENBRENNER. The rollcall will be ordered. The

question is shall the amendment offered by the gentlewoman from

California, Ms. Lofgren, to the amendment offered by the gentleman from Virginia, Mr. Goodlatte, be adopted?

Those in favor will signify, as your names are called, by saying

aye; those opposed, no. And the clerk will call the roll.

The CLERK. Mr. Hyde?

[No response.]

The CLERK. Mr. Gekas?

Mr. GEKAS. No.

The CLERK. Mr. Gekas, no. Mr. Coble?

Mr. COBLE. No.

The CLERK. Mr. Coble, no. Mr. Smith?

Mr. SMITH. No.

The CLERK. Mr. Smith, no. Mr. Gallegly?

[No response.]

The CLERK. Mr. Goodlatte?

Mr. GOODLATTE. No.

The CLERK. Mr. Goodlatte, no. Mr. Chabot?

Mr. CHABOT. No.

The CLERK. Mr. Chabot, no. Mr. Barr?

Mr. BARR. No.

The CLERK. Mr. Barr, no. Mr. Jenkins?

Mr. JENKINS. No.

The CLERK. Mr. Jenkins, no. Mr. Hutchinson?

Mr. HUTCHINSON. No.

The CLERK. Mr. Hutchinson, no. Mr. Cannon?

Mr. CANNON. Aye.

The CLERK. Mr. Cannon, aye. Mr. Graham?

[No response.]

The CLERK. Mr. Bachus?

Mr. BACHUS. No.

The CLERK. Mr. Bachus, no. Mr. Scarborough?

[No response.]

The CLERK. Mr. Hostettler?

Mr. HOSTETTLER. No.

The CLERK. Mr. Hostettler, no. Mr. Green?

Mr. GREEN. No.

The CLERK. Mr. Green, no. Mr. Keller?

Mr. KELLER. No.

The CLERK. Mr. Keller, no. Mr. Issa?

[No response.]

The CLERK. Ms. Hart?

Ms. HART. No.

The CLERK. Ms. Hart, no. Mr. Flake?

Mr. FLAKE. No.

The CLERK. Mr. Flake, no. Mr. Conyers?

Mr. CONYERS. Aye.

The CLERK. Mr. Conyers, aye. Mr. Frank?

Mr. FRANK. Aye.

The CLERK. Mr. Frank, aye. Mr. Berman?

Mr. BERMAN. Aye.

The CLERK. Mr. Berman, aye. Mr. Boucher?

[No response.]
76

The CLERK. Mr. Nadler?

Mr. NADLER. Aye.

The CLERK. Mr. Nadler, aye. Mr. Scott?

[No response.]

The CLERK. Mr. Watt?

Mr. WATT. Aye.

The CLERK. Mr. Watt, aye. Ms. Lofgren?

Ms. LOFGREN. Aye.

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee?

Ms. JACKSON LEE. Aye.

The CLERK. Ms. Jackson Lee, aye. Ms. Waters?

Ms. WATERS. Aye.

The CLERK. Ms. Waters, aye. Mr. Meehan?

[No response.]

The CLERK. Mr. Delahunt?

[No response.]

The CLERK. Mr. Wexler?

[No response.]

The CLERK. Ms. Baldwin?

Ms. BALDWIN. Aye.

The CLERK. Ms. Baldwin, aye. Mr. Weiner?

Mr. WEINER. Aye.

The CLERK. Mr. Weiner, aye. Mr. Schiff?

Mr. SCHIFF. Aye.

The CLERK. Mr. Schiff, aye. Mr. Chairman?

Chairman SENSENBRENNER. No.

The CLERK. Mr. Chairman, no.

Chairman SENSENBRENNER. Are there additional members in the

room who desire to cast their vote or change their vote?

The gentleman from California?

Mr. GALLEGLY. No.

The CLERK. Mr. Gallegly, no.

Chairman SENSENBRENNER. Anybody else who wishes to cast or

change their vote?

[No response.]

Chairman SENSENBRENNER. If not, the clerk will report.

The CLERK. Mr. Chairman, there are 12 ayes and 16 nays.

Chairman SENSENBRENNER. And the amendment is not agreed

to.

The question now is on the adoption of the Goodlatte amendment

to the amendment in the nature of a substitute.

Those in favor will say aye.

Opposed, no.

The ayes appear to have it. The ayes have it, and the Goodlatte

amendment is adopted.

Are there further amendments? The gentlewoman from Pennsylvania?

Ms. HART. Thank you, Mr. Chairman. I have an amendment at

the desk.

Chairman SENSENBRENNER. The clerk will report the amendment.

Ms. HART. Mr. Chairman, I move that the—— Chairman SENSENBRENNER. Well, let’s let the clerk start passing

the amendment out before members waive their rights.

Without objection, the amendment is considered as read.
77

[The amendment follows:]
78

Chairman SENSENBRENNER. The gentlewoman from Pennsylvania is recognized for 5 minutes.

Ms. HART. Thank you, Mr. Chairman.

As I discussed briefly earlier, we did have a concern raised at the

hearing, as well as having been raised today, about pornographic

and sexually explicit materials being sent via e-mail advertising.

I’ve also heard similar complaints from my constituents, both now

as a Member of Congress and also as I served in the Pennsylvania

State Senate. I’ve also discussed with other members here in this

body that this is an issue, and we ought to address it. I think it’s

appropriate to address it in this bill.

My amendment is based on the same principles as legislation

that we passed in Pennsylvania, basically, to label such e-mails. It

is modeled after similar laws, postal laws, that require sexually oriented material to be labeled when it runs through the regular mail

system.

It accomplishes several things. The amendment requires the Attorney General to create an identifying mark in the e-mail, to alert

individuals to e-mails containing such sexually oriented material.

It also requires any individual sending such e-mail to have the

proper identification such as has been discussed in Mr. Goodlatte’s

amendment, otherwise that sender would face tough penalties.

We also, in the amendment, define sexually oriented material in

a manner that has already been found constitutional. It’s in the

current postal law, Title 39. The amendment, I believe, Mr. Chairman, is a common-sense solution to a serious problem. It is based
79

on, as I mentioned, Title 39, where the postmaster may prescribe

that identifying marks be placed on mail that include sexually oriented material.

The Supreme Court upheld this law as constitutional in the case

of Rowan v. United States Postal Department and a decision was

followed in the case of Pent R. Books v. United States Postal Department. These laws have been effective in curbing the amount of

sexually oriented material. I think these laws have been on the

books for about 30 years. Basically, they cite the right of the receiver of mail not to be forced to receive sexually oriented advertising, sexually oriented materials unsolicited.

I believe these principles can be effective in giving families control over the type of information that is sent to their e-mail accounts, the same way now they currently have control over what’s

sent to their mail boxes. Individuals can be alerted before opening

these e-mails containing sexually oriented material, as was referred to by the gentleman from Massachusetts, but also I think it’s

important that they can also use currently available filtering software to eliminate these ads so that their children can be protected.

Currently, these programs are available and can prevent families

from accessing pornographic sites, but e-mail advertisements containing pornographic material are often missed by that type of filtering software.

I would encourage my colleagues to support the amendment.

Ms. LOFGREN. Would the gentlelady yield for a question?

Ms. HART. Yes, Mr. Chairman.

Ms. LOFGREN. I am very interested in doing something in this

area, and in fact have talked to several members on the other side

of the aisle about bringing forward a separate bill instead of an

amendment.

The question I have is whether the definition on line 14 on the

first page has been tested in court. Is that part of existing law and

is it sufficiently unvague to avoid constitutional defects, in terms

of court decisions, do you know?

Chairman SENSENBRENNER. The answer to her question is it is

taken right out of the Postal Statute, which is 39 US Code 3010.

Ms. LOFGREN. Thank you very much then. I am happy then to

support this amendment, noting that, unfortunately, Mr. Frank is

correct, 16-year-old boys all over the country will be looking for the

marks, but there is an opportunity at least to alert people, and I

yield back.

Mr. WEINER. Will the gentlelady yield? Will the gentlelady yield?

Ms. LOFGREN. The time is to Congresswoman Hart.

Ms. HART. I will yield.

Mr. WEINER. Does the Attorney General or the Justice Department have a position on your amendment?

Ms. HART. No. We have actually shared this with the Attorney

General, but we have not—I actually am not married to the idea

of the Attorney General actually handling this, although I think it’s

the best idea, it’s the most direct.

Mr. WEINER. Is there any—is there any reason why this couldn’t

be done under state law?

Ms. HART. Pardon me?
80

Mr. WEINER. Is there any reason why it couldn’t be done under

state law? Is there a problem inherent in the Internet that makes

that a difficult thing to do?

Ms. HART. Well, we actually—it’s a problem, obviously, with enforcement if you handle it another way. You’re just going to have

it so limited and so difficult, and spotty enforcement. We’d actually

passed a state law in Pennsylvania that contained basically the

same language, but, however, obviously, it doesn’t cover

enough—— Ms. LOFGREN. Mr. Chairman, could you give the gentlelady an

additional 1 minute?

Ms. HART. I need to respond, first of all, to Ms. Lofgren—— Chairman SENSENBRENNER. Does the gentlelady want an additional 2 minutes or not?

Ms. HART. Please. Yeah, Ms. Lofgren suggested that—— Chairman SENSENBRENNER. Does the gentlelady want an additional 2 minutes because her time is expired?

Ms. HART. Yes, Mr. Chairman, thank you.

Chairman SENSENBRENNER. Without objection, the gentlelady is

recognized for two additional minutes.

Ms. HART. A comment was made regarding labeling that would

direct people to open such e-mails, but again, if there’s a minor living in the parents’ home, those parents should have control over

their Internet, and would be able to use filtering software to filter

out such advertising, because of the label. So they’d know to expect

the label and be able to filter out that advertising—— Ms. LOFGREN. Would the gentlelady yield? In an ideal world, I

would love to believe that’s true, but as the mother of a 16-yearold son, who is a better programmer than I, those ideals don’t always work out that way.

But I do believe that this is a step in the right direction.

Support—— Ms. JACKSON LEE. Would the gentlelady yield?

Ms. LOFGREN. Sure.

Ms. JACKSON LEE. I raised a question earlier, and I appreciate

the amendment, and wanted to—I’m going to support the amendment because I think this whole idea of intrusive e-mail that can

be characterized as pornographic should be addressed, even though

we want parents to work on it as well.

I would hope the gentlelady would be open—I’d hope the

gentlelady would be open—it looks like this amendment may be

moving toward passage—to considering whether or not the Attorney General is the best arbiter or decider of the marks, and that

we could work together on that. But in any event, because I would

want it to be done as expeditiously as possible, but in any event,

I think the idea of curbing this electronic mail is a very good one,

and I yield back.

Chairman SENSENBRENNER. The time of the gentlewoman is once

again expired. The gentleman from Michigan, Mr. Conyers.

Mr. CONYERS. Mr. Chairman, with two boys not yet 16, I come

to this with a great deal of interest.

Chairman SENSENBRENNER. And the gentleman is recognized for

5 minutes to express his interest.

Mr. CONYERS. At least 5 minutes. Okay. There’s probably no

more complicated or difficult area in law than obscenity, and so I
81

congratulate the gentlelady from Pennsylvania, but I want to remind her that in 1989 the Supreme Court struck down the FCC’s

dial-a-porn regulations. That Communication Decency Act in 1996

to regulate obscenity on the Internet, was struck down, again by

the Supreme Court. The law successor, the Child Online Protection

Act from two congresses ago, is currently being challenged in the

Court as we speak. At the very least, we need to examine this,

work on it together, probably have hearings. I want to do this thing

with—I’m very anxious to do this, and I’m sympathetic to the good

purposes behind it, and maybe if we just want to make everybody

know that we’re all good guys working on this, we can do it anyway.

But this amendment is probably—more than probably at this

reading, likely to violate the First Amendment. And I’d be happy

to work on this. Since this is commercial speech, the operative

standard in the court is the Central Hudson test, saying that there

must be a substantial government interest directly advanced by

reasonable means in order to regulate obscenity.

Now, there is—— Ms. HART. Gentleman yield?

Mr. CONYERS. There is less obtrusive technology which could respond to the problem. For example, an entire software industry

built on filters, so that people can screen obscene materials. Are we

sure that these filters cannot mitigate the problem before us? In

addition, it’s unclear what good the marking requirement would accomplish since such marks, as already been indicated, actually encourage opening this kind of e-mail.

So the—so this proposal finally applies to unsolicited as well as

solicited e-mails. What does that carry with it? It means that even

person who want to receive these advertisements will be subject to

the requirements, and I think that the Supreme Court, in its presently constituted—— Ms. HART. Will the gentleman yield?

Mr. CONYERS.—would find that this would be an unnecessary

burden. I yield to the gentlelady from Pennsylvania.

Ms. HART. Thank you. First, to answer your question about the

Communications Decency Act, what they did state—what the Court

stated is that the burden was too broad, and if it could be made

less restrictive, which I believe this amendment does, then I believe

it would withstand a challenge. And also—that’s all. I yield back.

Ms. LOFGREN. Would the gentleman yield?

Mr. CONYERS. That’s not sufficient, and I don’t think it would be

sufficient. So we’ve got a huge problem here, folks, and I’d like to

encourage all of us to come together around this and craft something that we can all agree on, rather than toss it up at this hour,

a few minutes before we’re going to break.

Mr. WATT. Would the——

Mr. CONYERS. I yield to the gentleman from North Carolina.

Mr. WATT. I thank the gentleman for yielding. Wouldn’t one of

the ways to establish and document the Government interest be to

have the hearings that you’re talking about—— Mr. CONYERS. Exactly.

Mr. WATT. And to build a congressional record in support of that,

which this amendment currently lacks.

Mr. CONYERS. Yield to Ms. Lofgren.
82

Ms. LOFGREN. Thank you. That’s why—I had actually talked to

several members on the other side of the aisle about proceeding

separately. I think it’s important that whatever we do be upheld

by the courts. I don’t—I greatly respect the ranking member. I do

think that the labeling is quite different than the prohibition, and

I think that—I am willing to support this amendment today, but

I do think it’s important that we state that our motivation is to

protect minors, that the definition that is encompassed in this

amendment is really to allow for the protection of minors, it’s not

just about obscenity, and then also to provide for notice, because

there are individuals—I mean if you get an e-mail, you click it, and

there may be some stuff that you just don’t want to see, and it

should be up to the——

Chairman SENSENBRENNER. The gentlewoman’s time has expired.

Ms. LOFGREN. I would ask that the——

Mr. CONYERS. I ask for 1 minute.

Chairman SENSENBRENNER. The gentleman from Michigan.

Mr. CONYERS. Could I yield 5 seconds to Mr. Frank for a quiip?

Mr. FRANK. I just want to say that if we’re going to have those

hearings, I hope we will advertise them appropriately, because I

wouldn’t want people to wander in and be offended by the material

that would be at the hearings. The Attorney General’s——

Chairman SENSENBRENNER. The staff is directed to put a sign—

or to make a sign to put on the door, ‘‘offensive material inside.’’

Mr. FRANK. ‘‘May be heard.’’ And no waiting—you’ve got to wait

in line personally. No hiring someone to get in.

[Laughter.]

Chairman SENSENBRENNER. Now, that is a restriction on commerce that I don’t think we ought to get in.

Mr. CONYERS. I yield to the gentlelady from——

Chairman SENSENBRENNER. Let me poll the——

Ms. HART. I thank the gentleman for yielding.

Chairman SENSENBRENNER. Excuse me. Excuse me. The time has

expired.

Let me poll the committee to see how much longer this is going

on. How many people more wish to speak on this amendment? One,

two, three, four——

Mr. CONYERS. Let’s hold a hearing.

Chairman SENSENBRENNER. Five. I know of an amendment to be

offered by the gentleman from Utah, Mr. Cannon. How many other

amendments are there? You have an amendment, Mr. Schiff?

Mr. SCHIFF. Yes, Mr. Chairman, I have three.

Chairman SENSENBRENNER. The gentleman from Michigan has a

request.

Mr. CONYERS. Could I courteously ask the gentlelady from Pennsylvania, viewing how long this could go on, to withdraw this

amendment and allow us all to consult with you?

Ms. HART. In light of the simplicity of the amendment, I would

prefer not to do that. Again, we’ve gotten into—if I have a moment?

Chairman SENSENBRENNER. Well, if this is the case, the committee will be recessed until 2:00 o’clock. I would ask the members

to come back promptly at 2:00 because the sequential on this bill

expires on June 5th, which means that we have to report the bill
83

out on June 5, so that there is time for members to file additional

dissenting or minority views.

The committee is recessed until 2:00 o’clock.

[Recess]

Chairman SENSENBRENNER. The committee will come to order.

At the time the committee recessed, pending was an amendment

to the amendment in the nature of a substitute offered by the gentlewoman from Pennsylvania, Ms. Hart.

All those in favor of the Hart Amendment will signify by saying

aye.

Opposed, no.

Ms. JACKSON LEE. What are the ayes about?

Chairman SENSENBRENNER. We’re ayeing or noing about the

Hart Amendment. Those opposed, say no.

Ms. JACKSON LEE. Mr. Chairman—— Chairman SENSENBRENNER. The ayes appear to have it.

Ms. JACKSON LEE. I’m an aye, but a question.

Chairman SENSENBRENNER. Okay. The ayes have it both wholeheartedly and questionably, and the amendment is agreed to. Are

there further amendments?

Ms. JACKSON LEE. Can I make a parliamentary inquiry?

Chairman SENSENBRENNER. The gentlewoman will state her inquiry.

Ms. JACKSON LEE. This bill, Mr. Chairman, you—did you indicate how fast this bill would move?

Chairman SENSENBRENNER. No, I didn’t. Our sequential expires

on June 5th, which means that we have to report the bill out today

in order to give the 2 days necessary for the filing of additional

supplemental minority or dissenting views, and have the report

filed the day that we get back from recess. If we don’t file a report

today, we end up losing jurisdiction, and everything we’ve done is

for naught.

Ms. JACKSON LEE. Thank you, Mr. Chairman. It will give me

time to work with Ms. Hart in her office on some issues that I

have. Thank you very much, Mr. Chairman.

Chairman SENSENBRENNER. I have a feeling that there will be a

negotiation in the Rules Committee because we are somewhat

going down a different road than the Commerce Committee has.

The gentleman from California; for what purpose do you seek

recognition?

Mr. SCHIFF. Mr. Chairman, I have three amendments at the

desk.

Chairman SENSENBRENNER. Which ones do you want?

Mr. SCHIFF. Amendments 1, 2 and 3.

Chairman SENSENBRENNER. Do you want to do them en bloc?

Mr. SCHIFF. I think I prefer to do them separately. I think that

at least two of them will be very quick, Mr. Chairman.

Chairman SENSENBRENNER. Which one do you wish to offer first?

Mr. SCHIFF. Amendment No. 1.

Chairman SENSENBRENNER. Well, I have 18, 19 and 20.

Mr. SCHIFF. This is 18, 19 and 22, Mr. Chairman.

Mr. GOODLATTE. Mr. Chairman, I reserve a point of order.

Chairman SENSENBRENNER. Well, you’ve got to pick one.

Mr. SCHIFF. Yes, 18.

Chairman SENSENBRENNER. The clerk will report Schiff No. 18.
84

The CLERK. Amendment to the amendment——

Mr. GOODLATTE. I reserve a point of order, Mr. Chairman.

Chairman SENSENBRENNER. Point of order is reserved.

The CLERK. Amendment to the Amendment in the Nature of a

Substitute to H.R. 718, offered by Mr. Schiff.

At the end of the amendment——

Mr. SCHIFF. Mr. Chairman, request waiving the reading.

The Chairman. Without objection, the amendment is considered

as read, and the gentleman from California is recognized for 5 minutes.

[The amendment follows:]

Mr. SCHIFF. Thank you, Mr. Chairman. This amendment very

simply requires that the Attorney General submit a report to Congress providing an analysis of the effectiveness and enforcement of

the provisions of the act, and make suggestions or modifications if

necessary.

In light of the fact that the amendments to the original bill reduced the penalties and changed the nature of the bill, I think it

all the more important to make sure that those changes which reduced the penalties for violations, that we have some measure of

whether it’s effective in that form. This would simply require the

Attorney General to report to Congress, and I urge an aye vote.
85

Mr. GOODLATTE. Mr. Chairman.

Chairman SENSENBRENNER. The gentleman yield back the balance of his time?

Mr. SCHIFF. I do, Mr. Chairman.

Chairman SENSENBRENNER. For what purpose does the gentleman from Virginia seek recognition?

Mr. GOODLATTE. Mr. Chairman, I withdraw my objection, and

support the amendment.

Chairman SENSENBRENNER. The question is the adoption of

Schiff Amendment No. 1. Those in favor will signify by saying aye.

Opposed, no.

The ayes appear to have it. The ayes have it, and the amendment is agreed to.

The gentleman from California?

Mr. SCHIFF. Mr. Chairman, on Amendment 019, this amendment

would simply express——

Chairman SENSENBRENNER. Does the gentleman offer Amendment 019?

Mr. SCHIFF. Yes, Mr. Chairman.

Chairman SENSENBRENNER. Clerk will report the amendment.

The CLERK. Amendment to the Amendment in the Nature of a

Substitute to H.R. 718, offered by Mr. Schiff.

At the end of the amendment, add the following——

Chairman SENSENBRENNER. Without objection, the amendment is

considered as read, and the gentleman from California is recognized for 5 minutes.

[The amendment follows:]
86

Mr. SCHIFF. Mr. Chairman, this amendment simply acknowledges that e-mails are international in nature, and any action that

we take in Congress has to be mindful of the fact that people will

be sending e-mails solicited and otherwise from around the world.

And this expresses the sense of Congress, that the President should

provide for the Federal Government to engage and participate in

governments around the world, to develop internationally accepted

and consistent standards to address the issue of unsolicited commercial electronic mail. I waive the balance of my time and urge

an aye vote.

Chairman SENSENBRENNER. The gentleman from Virginia?

Mr. GOODLATTE. Mr. Chairman, move to strike the last word.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes

Mr. GOODLATTE. Thank you, Mr. Chairman. Mr. Chairman, I

have some concerns about this amendment, and the reason is that

it goes beyond the scope of what the Chairman’s mark I think intended to encompass with regard to the type of unsolicited commercial or electronic mail that we’re dealing with. This is broader than

the scope of the narrowly crafted legislation that is before the committee in terms of the fact that it covers more than just the types
87

of fraudulent and false and misleading e-mails that are covered

under the legislation, and therefore, unless it’s narrowed, I would

be forced to—— Chairman SENSENBRENNER. Would the gentleman yield?

Mr. GOODLATTE. I would yield.

Chairman SENSENBRENNER. I would like to join in the opposition

of the gentleman from Virginia. This rejects the bipartisan compromise that deals with fraud and criminal penalties, and gets this

committee down the road of regulation, which is something that

the bipartisan compromise attempted to avoid, so I would urge the

rejection of this amendment.

Ms. LOFGREN. Would the gentleman yield?

Mr. GOODLATTE. I yield to the gentlewoman from California.

Ms. LOFGREN. I join in concern over the amendment. I appreciate

the good motives behind the amendment, because indeed, the author is correct, the Internet is an international environment, but I

think it does get into—at least down the road, more of a regulatory

approach than I think we’re trying to get.

And I would just note also that, unfortunately, in our interface

with some in the international community, they do not have the

same spirit of nonregulatory approach to the Internet that is common here in the US. So it’s not always a wonderful experience to

try and coordinate with our international partners.

Mr. GOODLATTE. Thank you. I yield back.

Mr. FRANK. Mr. Chairman?

Chairman SENSENBRENNER. For what purpose does the gentleman from Massachusetts seek recognition?

Mr. FRANK. To strike the last word.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. FRANK. Mr. Chairman, I noted your point that this violates

the bipartisan compromise, and I guess that makes it about 100

percent for me. I haven’t seen a bipartisan compromise this year

that I liked. I don’t know when the word ‘‘partisan’’ took on negative connotations. I’m going to say I’m not the world’s most complete historian, but I tried hard to think about a functioning democracy in modern times that didn’t have parties, and parties

being necessary to democracy, apparently. I don’t understand why

we’re supposed to have them, and then ignore them. And the fact

that something is bipartisan, I used to be neutral about it. Now I’m

starting to go negative.

But I want to support the gentleman’s amendment, and I—I

hadn’t fully understood this—the context I guess. I find myself in

this—more on the side of the bipartisan compromise in the Commerce Committee than the bipartisan compromise in the Judiciary

Committee, because I do not think limiting ourselves to fraudulently addressed mail is a sufficient answer. As I said before, I do

think they over reached with the ISP part, but I think it’s a perfectly reasonable thing.

And I have to say then, the gentlewoman from California, the

fact that other nations don’t agree with us ought not to be the basis

on which we refuse to talk to them. I guess if people agree with

you, you probably don’t have to talk to them. You have—you know,

we have to conclude very few treaties with people who agree with

us exactly. The whole notion of international conversation is to try
88

and bridge gaps. So I think this is an important amendment, and

I think it—I look forward to those negotiations because some of us

are going to be trying to get something that’s between the two bills,

and for that reason, I support this particular amendment.

Chairman SENSENBRENNER. The question is on the amendment

offered by the gentleman from California, Mr. Schiff.

Mr. SCHIFF. Mr. Chairman——

Chairman SENSENBRENNER. Those in favor will signify by saying

aye.

Those opposed no.

The noes appear to have it. The noes have it, and the amendment is not agreed to.

Are there further amendments?

Mr. SCHIFF. Yes, Mr. Chairman.

Chairman SENSENBRENNER. Then we will have to come back

after the last vote in this series. Please be prompt because we need

a reporting quorum of 19 members. Otherwise, we’re going to lose

jurisdiction in this bill.

Mr. FRANK. Parliamentary inquiry, Mr. Chairman?

Chairman SENSENBRENNER. The gentleman from Massachusetts.

Mr. FRANK. If we lose jurisdiction, that means the Commerce direction is the only one in the field?

Chairman SENSENBRENNER. That’s right. Are there further

amendments? If not——

Mr. SCHIFF. Yes, Mr. Chairman, I have one further amendment.

Chairman SENSENBRENNER. Well, then the committee will be recessed until immediately after the last vote in this series. Again,

I ask the members to come back promptly so that we have a reporting quorum. Otherwise we will lose jurisdiction.

And the committee stands recessed.

[Recess.]

Chairman SENSENBRENNER. The committee will come to order.

When the committee recessed, the bill was open to amendment at

any point. The gentleman from Utah, Mr. Cannon.

Mr. CANNON. Mr. Chairman, I have an amendment at the desk.

Chairman SENSENBRENNER. The clerk will report the amendment.

The CLERK. Amendment to the Amendment in the Nature of a

Substitute to H.R. 718 offered by Mr. Cannon and Mr. Berman.

Page 2, line 19——

Mr. CANNON. Mr. Chairman, I ask unanimous consent that the

amendment be considered as read.

Chairman SENSENBRENNER. Without objection. The gentleman is

recognized for 5 minutes.

[The amendment follows:]
89

Mr. CANNON. Thank you, Mr. Chairman. Since the advent of the

Internet, we have been given an incredible tool for both commu-
90

nication and trade, the ability to send electronic mail messages to

one another. But as with any tool, it can be a boon when used properly, or a burden when it is not. The reason we’re here today is just

one of those burdens, unsolicited commercial e-mail or spam. By far

the number one complaint of the vast majority of American Web

users is their receipt of spam. Clearly, a requirement to have accurate header information is necessary so that the sources of unsolicited e-mail can be identified and consumers are able to have their

addresses stricken from the spam list.

However, to ultimately resolve this problem, you must stop the

spammer from obtaining the e-mail addresses in the first place.

Many responsible websites pledge never to sell, rent or lease their

users’ e-mail addresses. It seems, however, that much spam is derived from harvested e-mail addresses from various websites. As in

the past year alone, AOL Time Warner, e-Bay, Microsoft, Verizon,

Register.com, and others have all been harvested, much to the detriment of their relationship with their users. Because no technology

can completely protect people against this kind of scavenging, a

distinct chill is being placed upon e-commerce. The sad fact is that

American consumers are becoming reluctant to engage in any commerce, because they now feel that the Internet is not a safe place

to do business. They feel that their website cannot protect their email address.

That’s why I’m offering an amendment to address this issue. But

adding a narrow prohibition against this kind of behavior, my antiharvesting amendment will help to eliminate consumer frustration

and would thus encourage e-commerce. The proposed anti-harvesting amendment would create a cause of action for website only

when a person uses automated means to harvest e-mails from a

third-party website without that website’s consent, and with the intent to transmit spam to enable others to—or to enable others to

transmit spam.

The proposed amendment also includes a statutory damages pro- vision of up to $500,000. This type of statutory damages provision

will assist in making sure that harvesters do not consider lower

level finds as simply the cost of doing business.

I’ll face the efforts of my friend, Bob Goodlatte, the bill being considered today, coupled with my anti-harvesting amendment, will

help eliminate spam. Taken together, this package will add up to

consumer confidence on the Internet. It will also take—it will also

be a step closer to the day when and individual—an individual’s email address will be as public or private, as the individual consumer wants it to be. Without an anti-harvesting provision, only

one-half of the spam problem will be addressed. I accordingly offer

this amendment and urge my colleagues——

Chairman SENSENBRENNER. Will the gentleman yield?

Mr. CANNON.—to adopt this harvesting language. Yes.

Chairman SENSENBRENNER. I thank the gentleman for yielding,

and appreciate his concerns, and would endeavor to work with him

on this and other issues. You should know that many have concerns about this amendment because it is argued the amendment

prejudices the database and privacy debates. Every week interested

parties meet with the staff from this committee and that of the Energy and Commerce Committee to work out issues involving the

database bill. This amendment may confuse that process, and thus,
91

in my opinion, is not appropriate at this time, although it would

be appropriate at sometime in the future.

Furthermore, the amendment may impact the privacy debate because it prohibits the collection of information for marketing purposes. The substitute avoids the pitfall of regulating electronic commerce, including e-mail marketing.

I appreciate the gentleman’s efforts on this issue, and will further review the matter and work with you as this legislation makes

its way through the legislative process, but again, I do not believe

that this is the proper time and place to offer the amendment.

Mr. CANNON. If the Chairman will work with us—— Mr. BERMAN. Would the gentleman yield?

Mr. CANNON.—we will be happy to continue working on it, and

reclaiming my time, I’d like to yield to the gentleman from California, Mr. Berman.

Mr. BERMAN. Yes. Thank you, Mr. Chairman. I never—the argument about it prejudicing the database bill, I never fully understood, but the one thing I know is, having gotten some reports

about that process, it’s already confusing.

But I just—I appreciate the gentleman yielding, and I just wanted to agree with him that there should be an effort to deal with

this at the source, and I support the anti-harvesting amendment.

There is a belief out there that the robot harvesting, about which

Mr. Cannon speaks, is covered by the Computer Fraud and Abuse

Act already, known as Section 1030. Under this act, however, the

plaintiff must prove that he or she has suffered at least 5,000 in

damages or that his or her computer systems have been harmed.

It’s difficult, however, to calculate the harm done to the reputation of the harvested website or to the entire system of e-commerce

when consumers receive fraudulent e-mail, and they unfairly hold

the harvested website—the harvested website, and by extension, ecommerce as a whole, responsible.

So I support the amendment because it gets at the root of spam.

Spammers can’t send their unsolicited e-mail messages without addresses to send their messages to.

I appreciate the gentleman yielding, and I yield back.

Mr. GOODLATTE. Would the gentleman yield?

Mr. CANNON. I ask unanimous consent for an extra 2 minutes,

Mr. Chairman?

Chairman SENSENBRENNER. Without objection.

Mr. CANNON. Who asked for time?

Mr. GOODLATTE. I did.

Mr. CANNON. Oh, certainly, Mr. Goodlatte.

Mr. GOODLATTE. I appreciate the gentleman yielding, and I share

his concern about the nature of—of this problem. I also share the

concern addressed by the Chairman, in that this does effectively

broaden the scope of what we’re trying to do, because again, this

goes beyond the issue of fraudulent, false and misleading e-mails

covered under the narrow substitute that the Chairman has offered, and therefore, if the gentleman would withdraw, I certainly

also commit to trying to find a way to address this problem.

Mr. CANNON. Great. Thank you. Let me just point out that on

the recess, I—one of my staffers had an e-mail from—that was with

a fraudulent header, Diane at abcmxk, something odd like that.

When you clicked on the—on the button to de-list, you got a most
92

vulgar site coming up. In fact, I think it called itself filthy, but it

was awful. This is a serious problem, and with the assurance of the

Chairman and the gentleman from Virginia, I would withdraw my

motion.

Mr. BERMAN. We now think better of abc.

Chairman SENSENBRENNER. The amendment is withdrawn. Are

there further amendments? The gentleman from California.

Mr. SCHIFF. Thank you, Mr. Chairman. I’d like to offer Amendment 0.22.

Chairman SENSENBRENNER. The clerk will report the amendment.

The CLERK. Amendment to the Amendment in the Nature of a

Substitute to H.R. 718 offered by Mr. Schiff.

Page 1, line 12——

Mr. SCHIFF. Mr. Chairman, request waiving reading of the

amendment.

Chairman SENSENBRENNER. Without objection, the gentleman is

recognized for 5 minutes.

[The amendment follows:]

Mr. SCHIFF. Thank you, Mr. Chairman. This amendment would

simply require that in unsolicited commercial e-mail, in the subject

field, the textual message would include ADV: for advertisement.

This would allow the consumer who gets a flood of e-mails, to look

at the list of e-mails and identify, without having to go through the

laborious process of opening each one of them, which are unsolicited e-mails and which are not. Then the consumer can make the

decision whether to spend his or her time opening them or simply

deleting them, or employ a filtration device that will automatically

delete them if the consumer doesn’t want to get unsolicited e-mails.
93

It is, in that respect, I think, infinitely preferable both to compiling

a list of people who don’t want to receive e-mails and forcing direct

marketers or others to check a list. It’s also, I think, less cumbersome than a opt-out or an opt-in process. It is, in fact, California

law already.

The honorable woman from Pennsylvania introduced an amendment which passed—just passed this committee, pertaining to sexually explicit materials. California law in fact does what that gentlewoman’s amendment does, and what this amendment does. It requires ADV to appear in advertisements, and ADLT when those

advertisements are not intended for those under 18. This is really

designed to address the broader problem of unsolicited e-mail, and

I think does it in probably the least restrictive means possible.

Unless there’s any objection that this exceeds the bipartisan

scope of what the committee is addressing, it does so no more and

no less than the gentlewoman’s amendment from Pennsylvania.

I think that this offers really a minimal investment or requirement on behalf of the marketers. On the other hand, it provides a

great opportunity for consumers to make decisions for themselves

about how much unsolicited e-mail they wish to read. I would urge

your aye vote and reserve the balance of my time.

Chairman SENSENBRENNER. The gentleman has to yield back his

time under the 5-minute rule. The gentleman yield back?

Mr. SCHIFF. Yes, Mr. Chairman.

Chairman SENSENBRENNER. The chair recognizes himself for 5

minutes in opposition to the amendment.

This amendment regulates e-mail marketing. There’s no question

about it. And it disadvantages electronic commerce because it has

a different standard for the identifying of advertising materials on

the Internet than if one sent advertising through the mail.

The bipartisan compromise between Mr. Conyers and myself decided to have a minimum or nonexistent regulation of the Internet,

but instead go down the line of having misdemeanor penalties for

those who violate the purposes of the law. This goes back to the

scheme of regulation in the Wilson Bill, and I believe ought to be

rejected.

I yield back the balance of my time.

Mr. GOODLATTE. Mr. Chairman?

Chairman SENSENBRENNER. The gentleman from Virginia.

Mr. GOODLATTE. Move to strike the last word.

Chairman SENSENBRENNER. The gentleman’s recognized for 5

minutes.

Mr. GOODLATTE. Thank you, Mr. Chairman. I won’t use that

amount of time. I want to join with you in opposition to the amendment, which I know is well intentioned by the gentleman from

California, but I think it raises additional First Amendment questions regarding the commercial speech doctrine. Commercial speech

can indeed by regulated differently than other forms of free speech,

but there are limitations on what can be done in that regard, and

I do not believe that the requirement of labeling all commercial

communications as such is within the scope of that doctrine, and

therefore, I think that’s one additional reason not to support this

amendment. But it also does drastically expand the scope of the

legislation that this committee is crafting, and therefore, I would

oppose the amendment.
94

Ms. LOFGREN. Would the gentleman yield?

Mr. GOODLATTE. I would be happy to yield.

Ms. LOFGREN. I would—I concur with the judgment made by

yourself and the Chairman, and would note that to the extent that

there is any burden on the First Amendment by Congresswoman

Hart’s amendment, it is counterbalanced by our motivation, which

is to prevent minors from being exposed to indecent material.

There is no such—which is a constitutionally permissible goal.

There is no such countervailing rationale in non-explicit e-mails.

And I would thank the gentleman for yielding.

Chairman SENSENBRENNER. Does the gentleman yield back?

Mr. GOODLATTE. Yes.

Chairman SENSENBRENNER. The gentleman from Alabama, for

what purpose do you seek recognition?

Mr. BACHUS. On the amendment.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. BACHUS. Mr. Chairman, and members of the committee, I

will tell you that as a user of the Internet, that this amendment

does have some appeal to me. The amount of unsolicited commercial e-mails that I receive has basically eliminated my ability to use

e-mail at my home in a practical manner. And while this may not

be the appropriate time, I think in the future we have to seriously

consider an amendment of this type.

If, as the sponsor has said, that California does this, and I think

that’s what he said, you know, I would wonder how that it passes

constitutional muster there, but it’s unconstitutional when offered

here. So I will say to the sponsor and other members of the committee, at some point if those of us we represent who use the Internet continue to be frustrated by the large amount of unsolicited

commercial e-mail, I think this approach is something we ought to

seriously consider.

And I commend the gentleman for his thought, although I will

probably not support his amendment at this time, but it is to me

a very close question.

Mr. Chairman, I’m not sure that the public interest isn’t in supporting his amendment.

Chairman SENSENBRENNER. The gentleman yield back? The gentleman from Alabama yield back his time?

Mr. BACHUS. Yes.

Chairman SENSENBRENNER. For what purpose does the gentleman from New York——

Mr. WEINER. Move to strike the last word, Mr. Chairman.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. WEINER. I just—I mean it’s very clear to me that the gentleman’s amendment is within the narrow confines of this bill. The

bill talks about regulating commercial electronic—unsolicited commercial electronic mail by indicating information in the header

field, by regulating information in the heading field that would be

material, false or misleading. All the gentleman is doing is adding

a piece of information to the header field, clearly within the scope

of this bill, indicating what type of content is therein, and thereby

protecting anyone from saying it’s misleading. If they put in ADV,

then they are—that’s a disclosure that ultimately may protect busi-
95

nesses from being sued in this—what has turned into the ISP enrichment act.

I think it’s also—it’s also worth noting that the gentleman’s argument seems consistent to me. If we’re going to put PRN in the

Re line, why not say ADV? I think we’re really doing nothing all

that different, and I would remind my colleagues why we’re here.

We’re here because our constituents are getting spam advertisements on their laptop and on their desktop, and if you’re going to

put—if you’re going to put a chill on that, perhaps the best thing

to do is just make is possible for people to exercise what the gentlewoman from California has espoused—and I kind of agree with—

is the delete button. And a surefire way to know if you have an advertisement is if you put advertisement. And, frankly, we have

these kinds of disclosures elsewhere in the law.

I yield the balance of my time to Mr. Schiff.

Mr. SCHIFF. Mr. Chairman, very briefly on the constitutional

point, in fact, I think this amendment has much greater chance of

surviving constitutional tests than the amendment already approved by the committee, because this amendment doesn’t call for

a decision to be made about whether something meets the test of

the explicit nature of the prior amendment. In fact, any amendment—or any transmission that is an unsolicited commercial email would be required to carry this, and the breadth of it actually

strengthens it from a constitutional point of view, rather than having to decide between different types of speech, what is salacious

and what is not.

This is why I think the California law is constitutional, but the

California law is, I think, going to be ineffective because it really

only pertains to e-mails that are generated from within the State.

If this is to be effective, it really needs to be done nationally.

And just as the objection was made on this side of the committee

to the gentlewoman’s amendment, that this wasn’t the right time

and the right place, with all due respect, I think it is equally the

right time and the right place, as it was for the prior amendment.

Ms. LOFGREN. Would the gentleman yield?

Mr. SCHIFF. Yes.

Ms. LOFGREN. One of the additional questions I have about the

amendment is, although we’ve talked about commercial electronic

messages, we don’t really define what that is, and how will this relate to political speech that is not initiated by candidates, and what

is the constitutionality of that?

For example, Buzz Flash, which is arguably commercial. They’re

trying to make money. It is political speech. It is not candidate generated. It does engage in unsolicited, you know, communication,

and would have to be burdened in this way, and I’m not sure constitutionally how we can do that.

Mr. SCHIFF. It would apply to political speech the same degree,

no more, no less than the bill does already in applying terms like

materially false or misleading. This will apply and will be subject

to the same criticism.

Mr. WEINER. Would the gentleman allow me to reclaim my—

under the definition of the bill, political speech is not covered by

commercial electronic mail message, because it is not to advertise

or promote for a commercial purpose or product or service.
96

Ms. LOFGREN. Well, I think it is very gray. I mean, if you take

a look for—I don’t want to pick on Buzz Flash, because it’s one of

my favorite little areas, but I don’t think it’s—I don’t think it’s

clear, and I thank the gentleman for yielding to make that point.

Mr. SCHIFF. Thank you. Just to reclaim the final balance of the

time. If we’re serious about doing something about this problem,

there aren’t a lot of great options. A cause of action, I think, is a

very minimal—minimally effective way to address the problem.

Giving consumers the cause of action is even more minimalist. This

gives real relief to a very real problem, and it does so in a way that

poses the least possible restriction on commercial unsolicited emails in the sense that all they need to do is put the ADV in the

header, and it’s so less cumbersome than an opt-in or opt-out. It

really has a lot to be said for it, and I would urge your aye vote.

Chairman SENSENBRENNER. The time of the gentleman has expired. The question is on the Amendment No. 20 by the gentleman

from California to the Amendment in the Nature of a Substitute.

Those in favor will signify by saying aye.

Opposed, no.

The noes appear to have it. The noes have it.

Mr. SCHIFF. Request a rollcall.

Chairman SENSENBRENNER. A rollcall is requested. Those in

favor of the Schiff Amendment will, as your names are called, answer aye. Those opposed, no. And the clerk will call the roll.

The CLERK. Mr. Hyde?

[No response.]

The CLERK. Mr. Gekas?

[No response.]

The CLERK. Mr. Coble?

[No response.]

The CLERK. Mr. Smith?

Mr. SMITH. No.

The CLERK. Mr. Smith, no. Mr. Gallegly?

Mr. GALLEGLY. Aye.

The CLERK. Mr. Gallegly, aye. Mr. Goodlatte?

Mr. GOODLATTE. No.

The CLERK. Mr. Goodlatte, no. Mr. Chabot?

Mr. CHABOT. No.

The CLERK. Mr. Chabot, no. Mr. Barr?

Mr. BARR. No.

The CLERK. Mr. Barr, no. Mr. Jenkins?

Mr. JENKINS. No.

The CLERK. Mr. Jenkins, no. Mr. Hutchinson?

[No response.]

The CLERK. Mr. Cannon?

Mr. CANNON. No.

The CLERK. Mr. Cannon, no. Mr. Graham?

[No response.]

The CLERK. Mr. Bachus?

Mr. BACHUS. Aye.

The CLERK. Mr. Bachus, aye. Mr. Scarborough?

[No response.]

The CLERK. Mr. Hostettler?

Mr. HOSTETTLER. No.

The CLERK. Mr. Hostettler, no. Mr. Green?
97

Mr. GREEN. No.

The CLERK. Mr. Green, no. Mr. Keller?

Mr. KELLER. No.

The CLERK. Mr. Keller, no. Mr. Issa?

[No response.]

The CLERK. Ms. Hart?

Ms. HART. No.

The CLERK. Ms. Hart, no. Mr. Flake?

Mr. FLAKE. No.

The CLERK. Mr. Flake, no. Mr. Conyers?

[No response.]

The CLERK. Mr. Frank?

[No response.]

The CLERK. Mr. Berman?

[No response.]

The CLERK. Mr. Boucher?

[No response.]

The CLERK. Mr. Nadler?

[No response.]

The CLERK. Mr. Scott?

[No response.]

The CLERK. Mr. Watt?

Mr. WATT. Aye.

The CLERK. Mr. Watt, aye. Ms. Lofgren?

Ms. LOFGREN. No.

The CLERK. Ms. Lofgren, no. Ms. Jackson Lee?

Ms. JACKSON LEE. Pass.

The CLERK. Ms. Jackson Lee, pass. Ms. Waters?

Ms. WATERS. Aye.

The CLERK. Ms. Waters, aye. Mr. Meehan?

[No response.]

The CLERK. Mr. Delahunt?

[No response.]

The CLERK. Mr. Wexler?

[No response.]

The CLERK. Ms. Baldwin?

Ms. BALDWIN. Aye.

The CLERK. Ms. Baldwin, aye. Mr. Weiner?

Mr. WEINER. Aye.

The CLERK. Mr. Weiner, aye. Mr. Schiff?

Mr. SCHIFF. Aye.

The CLERK. Mr. Schiff, aye. Mr. Chairman?

Chairman SENSENBRENNER. No.

The CLERK. Mr. Chairman, no.

Chairman SENSENBRENNER. Are there additional members who

desire to cast or change their vote? The gentleman from North

Carolina?

Mr. COBLE. No.

The CLERK. Mr. Coble, no.

Chairman SENSENBRENNER. The gentlewoman from Texas?

Ms. JACKSON LEE. Aye.

The CLERK. Ms. Jackson Lee, aye.

Chairman SENSENBRENNER. Other members? Other members? If

not, the clerk will report.

The CLERK. Mr. Chairman, there are 8 ayes and 14 nays.
98

Chairman SENSENBRENNER. And the amendment is not agreed

to. Are there further amendments?

Ms. JACKSON LEE. Mr. Chairman.

Chairman SENSENBRENNER. The gentlewoman from Texas.

Ms. JACKSON LEE. Yes, Mr. Chairman. I have an amendment at

the desk.

Chairman SENSENBRENNER. The clerk will report the amendment.

The CLERK. Mr. Chairman, Amendment to the Amendment in

the Nature of a Substitute to H.R. 718 offered by Ms. Jackson Lee.

Mr. GOODLATTE. Mr. Chairman, I reserve a point of order.

Chairman SENSENBRENNER. A point of order is reserved. Without

objection, the amendment is considered as read, and the gentlewoman from Texas is recognized for 5 minutes.

[The amendment follows:]
99
100

Ms. JACKSON LEE. Thank you very much, Mr. Chairman.

As I discussed earlier, we all have a neutral concern and interest

in pornography. I am going to withdraw this amendment. I’d appreciate if the gentleman would withhold his point of order. But I

wanted to bring to the members’ attention language that I thought,

even though it was in a particular section, was somewhat maybe

even exclusive, the language ‘‘unnatural and natural sexual acts’’,

and so I have sought to broaden that to make it where it refers to

sexual acts, which allows for the coverage of anything that is untoward with respect to young people or anyone else.

I’m going to pursue this with—as this bill moves through the

House—and try to ensure that the language keeps within certain

protected features, but as well covers all aspects without having to
101

have someone scratch their head about what is defined as ‘‘natural

and unnatural.’’ So I would ask my colleagues to consider this. I’m going to withdraw the amendment, but I do want to have acknowledged the

presentation of the amendment, and then I intend to work on this

as we move this legislation to the floor.

Chairman SENSENBRENNER. The amendment is withdrawn. Are

there further amendments? If not, the question is on the Amendment in the Nature of a Substitute as Amended.

All those in favor will say aye.

Opposed, no.

The ayes appear to have it. The ayes have it, and the Amendment in the Nature of a Substitute is agreed to.

The question now occurs on the motion to report to bill H.R. 718

favorably as amended by the Amendment in the Nature of a Substitute as Amended.

All in favor, say aye.

Opposed, no.

The ayes have it, and the motion to report favorably is adopted.

Without objection, the Chairman is authorized to move to go to

conference pursuant to House rules. Without objection, the staff is

directed to make any technical and conforming changes, and all

members will be given 2 days, as provided by House rules, in which

to submit additional dissenting supplemental or minority views.

This concludes the business before the committee today. Let me

thank the members for their patience in coming back this afternoon. We have fulfilled our mandate under the sequential referral.

We will have other opportunities to do that in bills that we get

from the Commerce Committee. I appreciate the indulgence of

members, and let me say this isn’t the last time we’re going to fix

up the Commerce Committee’s work.

The committee is adjourned.

[Whereupon, at 4:13 p.m., the committee was adjourned.]

(103)

1 H.R. 718, § 2 (proposing 18 U.S.C. § 622(a)). The amendment defines a ‘‘sexually-oriented advertisement’’ as ‘‘any advertisement that depicts, in actual or simulated form, or explicitly describes, in a predominantly sexual context, human genitalia, any act of natural or unnatural

sexual intercourse, any act of sadism or masochism, or any other erotic subject directly related

to the foregoing, but material otherwise within the definition of this subsection shall be deemed

not to constitute a sexually oriented advertisement if it constitutes only a small and insignificant part of the whole, the remainder of which is not primarily devoted to sexual matters.’’ 2 Id. Pursuant to 18 U.S.C. § 3559, any violation of the Hart amendment would be classified

as a Class A misdemeanor. The fine amounts for all offenses are specified in 18 U.S.C. § 3571.

If the offender is an individual, the maximum fine is either $250,000 (if death results) or

$100,000 (if death does not result). If the offender is an organization, the maximum fine is either $500,000 (if death results) or $200,000 (if death does not result). 3Sable Comm’ns of California v. FCC, 492 U.S. 115 (1989). 4 Reno v. ACLU, 521 U.S. 844 (1997) (striking down portions of the Communications Decency

Act of 1996, Pub. L. No. 104–104, title V, 110 Stat. 56 (1996)). The CDA’s successor, the Child

Online Protection Act, also is being reviewed in the Supreme Court. ACLU v. Reno, 217 F.3d

162 (3d Cir. 2000) (affirming trial court issuance of preliminary injunction against enforcement

of Child Online Protection Act of 1998, Pub. L. No. 105–277, 112 Stat. 2681 (1998), a statute

intended to protect minors from harmful material on the Internet), cert. granted and rev’d sub

nom. Ashcroft v. ACLU, No. 00–1293 (2001).

Another recent law, the Children’s Internet Protection Act of 2000, is also now the subject

of First Amendment challenges. Multnomah County Public Library v. United States, No. 01-CV1322 (E.D. Pa. filed Mar. 20, 2001); American Library Ass’n v. United States, No. 01-CV-1303

(E.D. Pa. filed Mar. 20, 2001). That law directs that schools or libraries receiving Federal funds

to obtain computers for Internet access must utilize technological filters to block access by minors to materials on the Internet having sexual content. Children’s Internet Protection Act of

2000, Pub. L. No. 106–554 (2000).

The Supreme Court also has struck down a Federal statute regulating the advertising of contraceptives on the grounds that it violated the First Amendment. See Bolger v. Youngs Drug

Prods. Corp., 463 U.S. 60 (1983).

ADDITIONAL VIEWS

I strongly support the Sensenbrenner-Conyers substitute amendment to H.R. 718; however, I am writing additional views to indicate my concern that the Hart amendment would violate the First

Amendment. The Hart amendment requires the Attorney General

to prescribe marks or labels for e-mails containing ‘‘sexually-oriented advertisements’’ that senders of such e-mails must then include in all such transmissions.1 The penalty for violations of the

amendment’s provisions includes a fine, imprisonment for not more

than 1 year, or both.2

I agree with the general objective of the amendment—keeping

sexually-oriented materials away from those who do not want them

and minors who should not have them—but do not believe the

amendment has been written with the necessary care to pass constitutional scrutiny. I would remind the Members that there are

few more complicated or difficult area of the law than Federal regulations and restrictions of speech. This is evidenced by the Supreme Court’s 1989 decision to strike down the Federal Communication Commission’s dial-a-porn regulations,3 and its 1997 decision to invalidate portions of the Communications Decency Act

(‘‘CDA’’), which regulated pornography on the Internet.4

This line of cases should serve as a signal that, if we are to legislate on this matter, we must do so in a deliberative manner that

respects constitutional freedoms. Unfortunately, I do not believe

the Hart amendment will withstand First Amendment scrutiny be-
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5 Reno, 521 U.S. at 844.

6The Supreme Court has ruled that ‘‘speech is not stripped of First Amendment protection

merely because it appears’’ as a commercial advertisement. Bigelow v. Virginia, 421 U.S. 808,

818 (1975). The Court later affirmed that speech that ‘‘does no more than propose a commercial

transaction’’ is protected by the First Amendment. Virginia State Bd. of Pharmacy v. Virginia

Citizens Consumer Council, 425 U.S. 748 (1976). 7 44 Liquormart v. Rhode Island, 517 U.S. 484 (1996); Central Hudson Gas v. Public Service

Comm’n, 447 U.S. 557 (1980). See also Letter from Marvin J. Johnson, Legislative Counsel,

ACLU, to the Honorable F. James Sensenbrenner, Jr., Chair, House Comm. on the Judiciary,

& the Honorable John Conyers, Jr., Ranking Member, House Comm. on the Judiciary 3 (May

23, 2001) [hereinafter ACLU Letter]. 8See, e.g., Senate Commerce Comm. Hearing (statement of Jason Catlett, President and

Founder, Junkbusters Corp.); H.R. Rep. No. 41, 107th Cong., 1st Sess. 9 (2001). 9 It has been recognized that restrictions imposed for the benefit of people not wanting solicitations are reviewed differently when they impact people who do want them. Pent-R-Books v.

United States Postal Service, 328 F. Supp. 297 (1971), aff’d in part and rev’d in part, 538 F.

2d 519 (1976), and cert denied, 430 U.S. 906 (1977) (upholding postal regulation on applying

marks to postal mail with sexually-oriented ads in them because marks were applied to mailings

only for people who had not requested the materials).

cause it contains overbroad restrictions on commercial speech, and

may well be found to be void for vagueness and to compel speech.

I. THE AMENDMENT PROPOSES AN OVERBROAD REGULATION OF

COMMERCIAL SPEECH

It is entirely clear that the protections of the First Amendment

extend to speech on the Internet,5 which the Hart amendment proposes to regulate. It is also entirely clear that the First Amendment applies to advertisements or commercial speech, such as the

e-mails covered by the Hart amendment.6 In this regard, the Court

has stated that the constitutional test for any regulation of truthful

and non-misleading commercial speech is whether the law (1) pertains to a substantial government interest and (2) is reasonably

and narrowly tailored to that interest.7 In this case, it is not clear

that the government has a substantial interest in marking sexually-oriented ads, nor is the proposal narrowly tailored to any such

alleged interest.

As to the substantial government interest prong, the Hart

amendment presumes that the government has a substantial interest in making consumers and parents aware that they are receiving

sexually-oriented advertisements via e-mail. There is, however, no

legislative history or congressional finding to support this presumption. The Committee did not hold hearings where any mention was

made—either by witnesses or Members—of a need or desire to

mark e-mails containing sexually-oriented advertisements. To the

contrary, those hearings that Congress did hold on e-mail elicited

testimony that the primary problem for e-mail users was the receipt of bulk, unsolicited commercial e-mail, otherwise known as

spam.8 This is not to say that Federal legislation addressing emails with sexual content is not needed, but merely that the legislative groundwork has not been laid for such a law.

As to the second prong, the amendment would not appear to be

sufficiently narrowly tailored to pass constitutional scrutiny. For

example, the intended beneficiaries of the amendment are presumably people who do not want to open e-mails with sexually-oriented

ads. Unfortunately, even those who have asked for such ads would

see the mark and possibly be deterred from requesting sexually-oriented advertisements.9 Proponents of the amendment argue that it

merely mirrors labeling regulations that exist for regular mail,
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10See MARKUP OF H.R. 718, HOUSE COMM. ON THE JUDICIARY, 107th Cong., 1st Sess. (May

23, 2001) [hereinafter H.R. 718 Markup]. Portions of 39 U.S.C. § 3010 were reviewed and upheld

in 1971. Pent-R-Books, 328 F. Supp. at 297. 11Pent-R-Books, 328 F. Supp. at 313–14. 12See John Schwartz, Schools Get Tools to Track Students’ Use of Internet, N.Y. Times, May

21, 2001, at C6; Steve Woodward, AOL Selects RuleSpace to Patrol the Internet, OREGONIAN,

May 3, 2001, at B1. 13 RONALD D. ROTUNDA & JOHN E. NOWAK, 4 TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE

AND PROCEDURE § 20.9 (2d ed. 1992). 14 Id. 15 ACLU Letter at 4 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) & Baggett

v. Bullitt, 377 U.S. 360, 372 (1964)).

pointing to 39 U.S.C. § 3010(a) and its implementing regulations,

which require distributors of postal mail with sexually-oriented advertisements in them to print ‘‘Sexually-Oriented Ad’’ on a sealed

inner envelope that goes in a regular mailer to recipients.10 Those

regulations, however, applied only to solicitors sending sexually-oriented ads to people who had requested them; the regulations did

not apply to unsolicited ads.11 Under the Hart amendment, the

marks and labels must be applied to all e-mails, regardless of

whether they were solicited or unsolicited.

In addition, it is not at all clear that technology, which is much

less obtrusive than Federal legislation, could not be used to respond to the problem. For example, there is an entire software industry built on filters so people can screen obscene materials, and

there are Internet Service Providers that will filter out e-mails for

their customers.12 Considering that technology is available and

being further refined, the courts may well question the need for an

intrusive new labeling requirement. Furthermore, the restriction

may not be reasonably related to the government’s interest. It is

possible that the marking requirement would do exactly the opposite of what it is intended to do, as such marks actually could encourage children to view sexually-oriented ads.

II. THE AMENDMENT MAY BE VOID FOR VAGUENESS

The Hart amendment also could be found constitutionally void on

the grounds that it is vague. The Court has delineated a ‘‘strict

prohibition of statutes which burden speech in terms that are so

vague as either to allow including protected speech in the prohibition or leaving an individual without clear guidance as to the nature of speech for which he can be punished.’’ 13 As one of the leading constitutional law treatises has observed, ‘‘to the extent that

the law is vague and relates to fundamental constitutional rights,

it might have an ‘in terrorem’ effect and deter persons from engaging in activities, such as constitutionally-protected speech, that are

of particular constitutional importance.’’ 14 The American Civil Liberties Union has further noted:

Laws are supposed to ‘‘give the person of ordinary intelligence

a reasonable opportunity to know what is prohibited.’’ ...

Failure to clearly define when speech transgresses the regulation or law [as the Hart amendment fails to do] will unconstitutionally force people to conform their speech to ‘‘that which

is unquestionably safe.’’ 15
106

16 H.R. 718, § 2 (proposing 18 U.S.C. § 622(b)). This definition comes from 39 U.S.C. § 3010,

which requires the labeling of postal materials with sexually-oriented ads in them. 17See ACLU Letter at 3. 18See H.R. 718, § 2 (proposing 18 U.S.C. § 622(b)). 19Riley v. National Fed’n of the Blind, 487 U.S. 781 (1988) (striking down a state statute requiring professional fundraisers for charities to disclose to potential donors the gross percentage

of revenues retained in prior charitable solicitations). 20Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651, 652 n.14 (1984). 21See, e.g., 145 Cong. Rec. H4491-H4499 (daily ed. June 17, 1999) (debate on Wamp amendment to H.R. 1501, which was defeated 161–266).

In this case, the proposal’s definition of ‘‘sexually-oriented advertisement’’ 16 may well be seen as unnecessarily vague, could implicate e-mails that its proponents might not intend for labeling, and

therefore could chill otherwise lawful speech. More specifically, the

definition does not specify what is meant by ‘‘natural or unnatural

sexual intercourse’’ or ‘‘any other erotic subject,’’ and could require

the labeling of an e-mail containing an ad for a book about sexual

health or even an ad that contains double entendres.17 Furthermore, in an apparent effort to ensure that e-mails with minimal

sexual content do not have to be labeled, the definition carves out

e-mails having sexual content that ‘‘constitutes only a small and insignificant part of the whole, the remainder of which is not primarily devoted to sexual matters.’’ 18 Unfortunately, the amendment does not specify what is meant by ‘‘a small and insignificant

part’’—that term could implicate e-mails where 10 percent of the

content is sexually-oriented or even where 2 percent is so oriented.

III. THE AMENDMENT MAY UNCONSTITUTIONALLY COMPEL SPEECH

It also can be argued that the Hart amendment’s labeling requirement represents an unconstitutional compulsion of speech in

violation of the First Amendment. The Supreme Court has held

that requiring private entities to provide disclosures implicates the

First Amendment.19 The Court has further ruled in the commercial

context that, when the government requires disclosures, ‘‘an advertiser’s rights are reasonably protected as long as disclosure requirements are reasonably related to the State’s interest in preventing

deception of consumers.’’ 20 In this case, the Hart amendment requires disclosures of e-mails containing sexually-oriented commercial speech but is not intended to ‘‘prevent deception of consumers.’’

For that reason, the requirement could be seen as unconstitutional.

Proponents of the labeling requirement may argue that other

forms of media—movies, television shows, and music—are labeled

for sexual or violent content. There is, however, a significant difference between that labeling and what the Hart amendment proposes. Current labeling of content is done voluntarily by the private

industries that distribute the media so that potential purchasers

(or their parents) will be aware of what is being provided. Efforts

in Congress to require labeling of those media have been previously

rejected on the grounds they would violate the First Amendment.21

CONCLUSION

The protections of the First Amendment should not turn back at

the doorstep of commercial speech. In fact, it is the protection that

commercial speech receives that ensures that the right to engage

in non-commercial speech will be limited in only the most extreme
107

circumstances. For that reason, limitations on commercial speech

must be reasonably and narrowly drafted to areas in which the

government maintains a substantial regulatory interest. Unfortunately, the Hart amendment subjects a class of commercial speech

to lesser constitutional protection than it otherwise deserves and

does so without the foundation of even a single congressional hearing. I urge the Members to reconsider this hastily-drafted provision

as we move to the floor.

JOHN CONYERS, JR.

Æ