I

107TH CONGRESS

1ST SESSION H. R. 95

To protect individuals, families, and Internet service providers from unsolicited

and unwanted electronic mail.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 3, 2001

Mr. GREEN of Texas introduced the following bill; which was referred to the

Committee on Energy and Commerce, and in addition to the Committee

on the Judiciary, for a period to be subsequently determined by the

Speaker, in each case for consideration of such provisions as fall within

the jurisdiction of the committee concerned

A BILL

To protect individuals, families, and Internet service

providers from unsolicited and unwanted electronic mail.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Unsolicited Commer5 cial Electronic Mail Act of 2001’’.

6 SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.

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

8 (1) There is a right of free speech on the Inter9 net.
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1 (2) The Internet has increasingly become a crit2 ical mode of global communication and now presents

3 unprecedented opportunities for the development and

4 growth of global commerce and an integrated world5 wide economy. In order for global commerce on the

6 Internet to reach its full potential, individuals and

7 entities using the Internet and other online services

8 should be prevented from engaging in activities that

9 prevent other users and Internet service providers

10 from having a reasonably predictable, efficient, and

11 economical online experience.

12 (3) Unsolicited commercial electronic mail can

13 be an important mechanism through which busi14 nesses advertise and attract customers in the online

15 environment.

16 (4) The receipt of unsolicited commercial elec17 tronic mail may result in costs to recipients who

18 cannot refuse to accept such mail and who incur

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

20 spent accessing, reviewing, and discarding such mail,

21 or for both.

22 (5) Unsolicited commercial electronic mail may

23 impose significant monetary costs on Internet access

24 services, businesses, and educational and nonprofit

25 institutions that carry and receive such mail, as
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1 there is a finite volume of mail that such providers,

2 businesses, and institutions can handle without fur3 ther investment. The sending of such mail is increas4 ingly and negatively affecting the quality of service

5 provided to customers of Internet access service, and

6 shifting costs from the sender of the advertisement

7 to the Internet access service.

8 (6) While some senders of unsolicited commer9 cial electronic mail messages provide simple and reli10 able ways for recipients to reject (or ‘‘opt-out’’ of)

11 receipt of unsolicited commercial electronic mail

12 from such senders in the future, other senders pro13 vide no such ‘‘opt-out’’ mechanism, or refuse to

14 honor the requests of recipients not to receive elec15 tronic mail from such senders in the future, or both.

16 (7) An increasing number of senders of unsolic17 ited commercial electronic mail purposefully disguise

18 the source of such mail so as to prevent recipients

19 from responding to such mail quickly and easily.

20 (8) Many senders of unsolicited commercial

21 electronic mail collect or harvest electronic mail ad22 dresses of potential recipients without the knowledge

23 of those recipients and in violation of the rules or

24 terms of service of the database from which such ad25 dresses are collected.
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1 (9) Because recipients of unsolicited commercial

2 electronic mail are unable to avoid the receipt of

3 such mail through reasonable means, such mail may

4 invade the privacy of recipients.

5 (10) In legislating against certain abuses on the

6 Internet, Congress should be very careful to avoid

7 infringing in any way upon constitutionally protected

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

9 and privacy.

10 (b) CONGRESSIONAL DETERMINATION OF PUBLIC

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

12 the Congress determines that—

13 (1) there is substantial government interest in

14 regulation of unsolicited commercial electronic mail;

15 (2) Internet service providers should not be

16 compelled to bear the costs of unsolicited commercial

17 electronic mail without compensation from the send18 er; and

19 (3) recipients of unsolicited commercial elec20 tronic mail have a right to decline to receive or have

21 their children receive unsolicited commercial elec22 tronic mail.

23 SEC. 3. DEFINITIONS.

24 In this Act:
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1 (1) CHILDREN.—The term ‘‘children’’ includes

2 natural children, stepchildren, adopted children, and

3 children who are wards of or in custody of the par4 ent, who have not attained the age of 18 and who

5 reside with the parent or are under his or her care,

6 custody, or supervision.

7 (2) COMMERCIAL ELECTRONIC MAIL MES8 SAGE.—The term ‘‘commercial electronic mail mes9 sage’’ means any electronic mail message that pri10 marily advertises or promotes the commercial avail11 ability of a product or service for profit or invites

12 the recipient to view content on an Internet web site

13 that is operated for a commercial purpose. An elec14 tronic mail message shall not be considered to be a

15 commercial electronic mail message solely because

16 such message includes a reference to a commercial

17 entity that serves to identify the initiator.

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

19 means the Federal Trade Commission.

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

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

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

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

3 mail address’’ means a destination (commonly

4 expressed as a string of characters) to which

5 electronic mail can be sent or delivered.

6 (B) INCLUSION.—In the case of the Inter7 net, the term ‘‘electronic mail address’’ may in8 clude an electronic mail address consisting of a

9 user name or mailbox (commonly referred to as

10 the ‘‘local part’’) and a reference to an Internet

11 domain (commonly referred to as the ‘‘domain

12 part’’).

13 (6) INTERNET.—The term ‘‘Internet’’ has the

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

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

16 (7) INTERNET ACCESS SERVICE.—The term

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

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

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

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

21 with respect to a commercial electronic mail mes22 sage, means to originate such message or to procure

23 the transmission of such message.

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

25 used with respect to a commercial electronic mail
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1 message, means the person who initiates such mes2 sage. Such term does not include a provider of an

3 Internet access service whose role with respect to the

4 message is limited to handling, transmitting, re5 transmitting, or relaying the message.

6 (10) PRE-EXISTING BUSINESS RELATION7 SHIP.—The term ‘‘pre-existing business relation8 ship’’ means, when used with respect to the initiator

9 and recipient of a commercial electronic mail mes10 sage, that either of the following circumstances exist:

11 (A) PREVIOUS BUSINESS TRANSACTION.—

12 (i) Within the 5-year period ending

13 upon receipt of such message, there has

14 been a business transaction between the

15 initiator and the recipient (including a

16 transaction involving the provision, free of

17 charge, of information requested by the re18 cipient, of goods, or of services); and

19 (ii) the recipient was, at the time of

20 such transaction or thereafter, provided a

21 clear and conspicuous notice of an oppor22 tunity not to receive further messages from

23 the initiator and has not exercised such op24 portunity.
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1 (B) OPT IN.—The recipient has given the

2 initiator permission to initiate commercial elec3 tronic mail messages to the electronic mail ad4 dress of the recipient and has not subsequently

5 revoked such permission.

6 (11) RECIPIENT.—The term ‘‘recipient’’, when

7 used with respect to a commercial electronic mail

8 message, means the addressee of such message.

9 (12) UNSOLICITED COMMERCIAL ELECTRONIC

10 MAIL MESSAGE.—The term ‘‘unsolicited commercial

11 electronic mail message’’ means any commercial

12 electronic mail message that is sent by the initiator

13 to a recipient with whom the initiator does not have

14 a pre-existing business relationship.

15 SEC. 4. CRIMINAL PENALTY FOR UNSOLICITED COMMER16 CIAL ELECTRONIC MAIL CONTAINING FRAUD17 ULENT ROUTING INFORMATION.

18 Section 1030 of title 18, United States Code, is

19 amended—

20 (1) in subsection (a)(5)—

21 (A) in subparagraph (B), by striking ‘‘or’’

22 at the end;

23 (B) in subparagraph (C), by inserting ‘‘or’’

24 after the semicolon at the end; and
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1 (C) by adding at the end the following new

2 subparagraph:

3 ‘‘(D) intentionally initiates the transmission of

4 any unsolicited commercial electronic mail message

5 to a protected computer in the United States with

6 knowledge that any domain name, header informa7 tion, date or time stamp, originating electronic mail

8 address, or other information identifying the

9 initiator or the routing of such message, that is con10 tained in or accompanies such message, is false or

11 inaccurate;’’;

12 (2) in subsection (c)(2)(A)—

13 (A) by inserting ‘‘(i)’’ after ‘‘in the case

14 of’’; and

15 (B) by inserting before ‘‘; and’’ the fol16 lowing: ‘‘, or (ii) an offense under subsection

17 (a)(5)(D) of this section’’; and

18 (3) in subsection (e)—

19 (A) by striking ‘‘and’’ at the end of para20 graph (8);

21 (B) by striking the period at the end of

22 paragraph (9) and inserting a semicolon; and

23 (C) by adding at the end the following new

24 paragraph:
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1 ‘‘(10) the terms ‘initiate’, ‘initiator’, ‘unsolicited

2 commercial electronic mail message’, and ‘domain

3 name’ have the meanings given such terms in section

4 3 of the Unsolicited Commercial Electronic Mail Act

5 of 2001.’’.

6 SEC. 5. OTHER PROTECTIONS AGAINST UNSOLICITED COM7 MERCIAL ELECTRONIC MAIL.

8 (a) REQUIREMENTS FOR TRANSMISSION OF MES9 SAGES.—

10 (1) INCLUSION OF RETURN ADDRESS IN COM11 MERCIAL ELECTRONIC MAIL.—It shall be unlawful

12 for any person to initiate the transmission of a com13 mercial electronic mail message to any person within

14 the United States unless such message contains a

15 valid electronic mail address, conspicuously dis16 played, to which a recipient may send a reply to the

17 initiator to indicate a desire not to receive any fur18 ther messages.

19 (2) PROHIBITION OF TRANSMISSION OF UNSO20 LICITED COMMERCIAL ELECTRONIC MAIL AFTER OB21 JECTION.—If a recipient makes a request to a per22 son to be removed from all distribution lists under

23 the control of such person, it shall be unlawful for

24 such person to initiate the transmission of an unso25 licited commercial electronic mail message to such
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1 a recipient within the United States after the expira2 tion, after receipt of such request, of a reasonable

3 period of time for removal from such lists. Such a

4 request shall be deemed to terminate a pre-existing

5 business relationship for purposes of determining

6 whether subsequent messages are unsolicited com7 mercial electronic mail messages.

8 (3) INCLUSION OF IDENTIFIER AND OPT-OUT IN

9 UNSOLICITED COMMERCIAL ELECTRONIC MAIL.—It

10 shall be unlawful for any person to initiate the

11 transmission of any unsolicited commercial electronic

12 mail message to any person within the United States

13 unless the message provides, in a manner that is

14 clear and conspicuous to the recipient—

15 (A) identification that the message is an

16 unsolicited commercial electronic mail message;

17 and

18 (B) notice of the opportunity under para19 graph (2) not to receive further unsolicited

20 commercial electronic mail messages from the

21 initiator.

22 (b) ENFORCEMENT OF POLICIES BY INTERNET AC23 CESS SERVICE PROVIDERS.—

24 (1) PROHIBITION OF TRANSMISSIONS IN VIOLA25 TION OF POSTED POLICY.—It shall be unlawful for
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1 any person to initiate the transmission of an unsolic2 ited commercial electronic mail message to any per3 son within the United States in violation of a policy

4 governing the use of the equipment of a provider of

5 Internet access service for transmission of unsolic6 ited commercial electronic mail messages that meets

7 the requirements of paragraph (2).

8 (2) REQUIREMENTS FOR ENFORCEABILITY.—

9 The requirements under this paragraph for a policy

10 regarding unsolicited commercial electronic mail

11 messages are as follows:

12 (A) CLARITY.—The policy shall explicitly

13 provide that compliance with a rule or set of

14 rules is a condition of use of the equipment of

15 a provider of Internet access service to deliver

16 commercial electronic mail messages.

17 (B) PUBLICLY AVAILABILITY.—The policy

18 shall be publicly available by at least one of the

19 following methods:

20 (i) WEB POSTING.—The policy is

21 clearly and conspicuously posted on a

22 World Wide Web site of the provider of

23 Internet access service, which has an Inter24 net domain name that is identical to the

25 Internet domain name of the electronic
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1 mail address to which the rule or set of

2 rules applies.

3 (ii) NOTIFICATION IN COMPLIANCE

4 WITH TECHNOLOGICAL STANDARD.—Such

5 policy is made publicly available by the

6 provider of Internet access service in ac7 cordance with a technological standard

8 adopted by an appropriate Internet stand9 ards setting body (such as the Internet

10 Engineering Task Force) and recognized

11 by the Commission by rule as a fair stand12 ard.

13 (C) INTERNAL OPT-OUT LIST.—If the pol14 icy of a provider of Internet access service re15 quires compensation specifically for the trans16 mission of unsolicited commercial electronic

17 mail messages into its system, the provider

18 shall provide an option to its subscribers not to

19 receive any unsolicited commercial electronic

20 mail messages, except that such option is not

21 required for any subscriber who has agreed to

22 receive unsolicited commercial electronic mail

23 messages in exchange for discounted or free

24 Internet access service.
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1 (3) OTHER ENFORCEMENT.—Nothing in this

2 Act shall be construed to prevent or limit, in any

3 way, a provider of Internet access service from en4 forcing, pursuant to any remedy available under any

5 other provision of Federal, State, or local criminal or

6 civil law, a policy regarding unsolicited commercial

7 electronic mail messages.

8 (c) PROTECTION OF INTERNET ACCESS SERVICE

9 PROVIDERS.—

10 (1) GOOD FAITH EFFORTS TO BLOCK TRANS11 MISSIONS.—A provider of Internet access service

12 shall not be liable, under any Federal, State, or local

13 civil or criminal law, for any action it takes in good

14 faith to block the transmission or receipt of unsolic15 ited commercial electronic mail messages.

16 (2) INNOCENT RETRANSMISSION.—A provider

17 of Internet access service the facilities of which are

18 used only to handle, transmit, retransmit, or relay

19 an unsolicited commercial electronic mail message

20 transmitted in violation of subsection (a) shall not

21 be liable for any harm resulting from the trans22 mission or receipt of such message unless such pro23 vider permits the transmission or retransmission of

24 such message with actual knowledge that the trans-
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1 mission is prohibited by subsection (a) or subsection

2 (b)(1).

3 SEC. 6. ENFORCEMENT.

4 (a) GOVERNMENTAL ORDER.—

5 (1) NOTIFICATION OF ALLEGED VIOLATION.—

6 The Commission shall send a notification of alleged

7 violation to any person who violates section 5 if—

8 (A) a recipient or a provider of Internet

9 access service notifies the Commission, in such

10 form and manner as the Commission shall de11 termine, that a transmission has been received

12 in violation of section 5; or

13 (B) the Commission has other reason to

14 believe that such person has violated or is vio15 lating section 5.

16 (2) TERMS OF NOTIFICATION.—A notification

17 of alleged violation shall—

18 (A) identify the violation for which the no19 tification was issued;

20 (B) direct the initiator to refrain from fur21 ther violations of section 5;

22 (C) expressly prohibit the initiator (and

23 the agents or assigns of the initiator) from fur24 ther initiating unsolicited commercial electronic

25 mail messages in violation of section 5 to the
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1 designated recipients or providers of Internet

2 access service, effective on the third day (ex3 cluding Saturdays, Sundays, and legal public

4 holidays) after receipt of the notification; and

5 (D) direct the initiator (and the agents or

6 assigns of the initiator) to delete immediately

7 the names and electronic mail addresses of the

8 designated recipients or providers from all mail9 ing lists owned or controlled by the initiator (or

10 such agents or assigns) and prohibit the

11 initiator (and such agents or assigns) from the

12 sale, lease, exchange, license, or other trans13 action involving mailing lists bearing the names

14 and electronic mail addresses of the designated

15 recipients or providers.

16 (3) COVERAGE OF MINOR CHILDREN BY NOTIFI17 CATION.—Upon request of a recipient of an elec18 tronic mail message transmitted in violation of sec19 tion 5, the Commission shall include in the notifica20 tion of alleged violation the names and electronic

21 mail addresses of any child of the recipient.

22 (4) ENFORCEMENT OF NOTIFICATION TERMS.—

23 (A) COMPLAINT.—If the Commission be24 lieves that the initiator (or the agents or as25 signs of the initiator) has failed to comply with
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1 the terms of a notification issued under this

2 subsection, the Commission shall serve upon the

3 initiator (or such agents or assigns), by reg4 istered or certified mail, a complaint stating the

5 reasons for its belief and request that any re6 sponse thereto be filed in writing with the Com7 mission within 15 days after the date of such

8 service.

9 (B) HEARING AND ORDER.—If the Com10 mission, after an opportunity for a hearing on

11 the record, determines that the person upon

12 whom the complaint was served violated the

13 terms of the notification, the Commission shall

14 issue an order directing that person to comply

15 with the terms of the notification.

16 (C) PRESUMPTION.—For purposes of a de17 termination under subparagraph (B), receipt of

18 any transmission in violation of a notification of

19 alleged violation 30 days (excluding Saturdays,

20 Sundays, and legal public holidays) or more

21 after the effective date of the notification shall

22 create a rebuttable presumption that such

23 transmission was sent after such effective date.

24 (5) ENFORCEMENT BY COURT ORDER.—Any

25 district court of the United States within the juris-
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1 diction of which any transmission is sent or received

2 in violation of a notification given under this sub3 section shall have jurisdiction, upon application by

4 the Attorney General, to issue an order commanding

5 compliance with such notification. Failure to observe

6 such order may be punishable by the court as con7 tempt thereof.

8 (b) PRIVATE RIGHT OF ACTION.—

9 (1) ACTIONS AUTHORIZED.—A recipient or a

10 provider of Internet access service may, if otherwise

11 permitted by the laws or rules of court of a State,

12 bring in an appropriate court of that State, or may

13 bring in an appropriate Federal court if such laws

14 or rules do not so permit, either or both of the fol15 lowing actions:

16 (A) An action based on a violation of sec17 tion 5 to enjoin such violation.

18 (B) An action to recover for actual mone19 tary loss from such a violation in an amount

20 equal to the greatest of—

21 (i) the amount of such actual mone22 tary loss; or

23 (ii) $500 for each such violation, not

24 to exceed a total of $50,000.
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1 (2) ADDITIONAL REMEDIES.—If the court finds

2 that the defendant willfully, knowingly, or repeatedly

3 violated section 5, the court may, in its discretion,

4 increase the amount of the award to an amount

5 equal to not more than three times the amount

6 available under paragraph (1).

7 (3) ATTORNEY FEES.—In any such action, the

8 court may, in its discretion, require an undertaking

9 for the payment of the costs of such action, and as10 sess reasonable costs, including reasonable attorneys’

11 fees, against any party.

12 (4) PROTECTION OF TRADE SECRETS.—At the

13 request of any party to an action brought pursuant

14 to this subsection or any other participant in such

15 an action, the court may, in its discretion, issue pro16 tective orders and conduct legal proceedings in such

17 a way as to protect the secrecy and security of the

18 computer, computer network, computer data, com19 puter program, and computer software involved in

20 order to prevent possible recurrence of the same or

21 a similar act by another person and to protect any

22 trade secrets of any such party or participant.

23 SEC. 7. EFFECT ON OTHER LAWS.

24 (a) FEDERAL LAW.—Nothing in this Act shall be

25 construed to impair the enforcement of section 223 or 231
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1 of the Communications Act of 1934, chapter 71 (relating

2 to obscenity) or 110 (relating to sexual exploitation of chil3 dren) of title 18, United States Code, or any other Federal

4 criminal statute.

5 (b) STATE LAW.—No State or local government may

6 impose any civil liability for commercial activities or ac7 tions in interstate or foreign commerce in connection with

8 an activity or action described in section 5 of this Act that

9 is inconsistent with the treatment of such activities or ac10 tions under this Act, except that this Act shall not pre11 empt any civil remedy under State trespass or contract

12 law or under any provision of Federal, State, or local

13 criminal law or any civil remedy available under such law

14 that relates to acts of computer fraud or abuse arising

15 from the unauthorized transmission of unsolicited com16 mercial electronic mail messages.

17 SEC. 8. STUDY OF EFFECTS OF UNSOLICITED COMMERCIAL

18 ELECTRONIC MAIL.

19 Not later than 18 months after the date of the enact20 ment of this Act, the Federal Trade Commission shall sub21 mit a report to the Congress that provides a detailed anal22 ysis of the effectiveness and enforcement of the provisions

23 of this Act and the need (if any) for the Congress to mod24 ify such provisions.
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1 SEC. 9. SEPARABILITY.

2 If any provision of this Act or the application thereof

3 to any person or circumstance is held invalid, the remain4 der of this Act and the application of such provision to

5 other persons or circumstances shall not be affected.

6 SEC. 10. EFFECTIVE DATE.

7 The provisions of this Act shall take effect 90 days

8 after the date of the enactment of this Act.

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