II

106TH CONGRESS

1ST SESSION S. 759

To regulate the transmission of unsolicited commercial electronic mail on

the Internet, and for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 25, 1999

Mr. MURKOWSKI (for himself, Mr. TORRICELLI, Mr. BURNS, and Mr. REID)

introduced the following bill; which was read twice and referred to the

Committee on Commerce, Science, and Transportation

A BILL

To regulate the transmission of unsolicited commercial

electronic mail on the Internet, and for other purposes.

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 ‘‘Inbox Privacy Act of

5 1999’’.

6 SEC. 2. TRANSMISSIONS OF UNSOLICITED COMMERCIAL

7 ELECTRONIC MAIL.

8 (a) PROHIBITION ON TRANSMISSION TO PERSONS

9 DECLINING RECEIPT.—
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1 (1) IN GENERAL.—A person may not initiate

2 the transmission of unsolicited commercial electronic

3 mail to another person if such other person submits

4 to the person a request that the initiation of the

5 transmission of such mail by the person to such

6 other person not occur.

7 (2) FORM OF REQUEST.—A request under

8 paragraph (1) may take any form appropriate to no9 tify a person who initiates the transmission of unso10 licited commercial electronic mail of the request, in11 cluding an appropriate reply to a notice specified in

12 subsection (d)(2).

13 (3) CONSTRUCTIVE AUTHORIZATION.—

14 (A) IN GENERAL.—Subject to subpara15 graph (B), for purposes of this subsection, a

16 person who secures a good or service from, or

17 otherwise responds electronically to an offer in

18 a commercial electronic mail message shall be

19 deemed to have authorized the initiation of

20 transmissions of unsolicited commercial elec21 tronic mail from the person who initiated trans22 mission of the message.

23 (B) NO AUTHORIZATION FOR REQUEST

24 FOR TERMINATION.—A reply to a notice speci25 fied in subsection (d)(2) shall not constitute au-
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1 thorization for the initiation of transmissions of

2 unsolicited commercial electronic mail under

3 this paragraph.

4 (b) PROHIBITION ON TRANSMISSION TO DOMAIN

5 OWNERS DECLINING RECEIPT.—

6 (1) IN GENERAL.—Except as provided in para7 graph (2), a person may not initiate the trans8 mission of unsolicited commercial electronic mail to

9 any electronic mail addresses served by a domain if

10 the domain owner has elected not to receive trans11 missions of such mail at the domain in accordance

12 with subsection (c).

13 (2) EXCEPTIONS.—The prohibition in para14 graph (1) shall not apply in the case of the fol15 lowing:

16 (A) A domain owner initiating trans17 missions of commercial electronic mail to its

18 own domain.

19 (B) Any customer of an Internet service

20 provider or interactive computer service pro21 vider included on a list under subsection

22 (c)(3)(C).

23 (c) DOMAIN-WIDE OPT-OUT SYSTEM.—
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1 (1) IN GENERAL.—A domain owner may elect

2 not to receive transmissions of unsolicited commer3 cial electronic mail at its own domain.

4 (2) NOTICE OF ELECTION.—A domain owner

5 making an election under this subsection shall—

6 (A) notify the Federal Trade Commission

7 of the election in such form and manner as the

8 Commission shall require for purposes of sec9 tion 4(c); and

10 (B) if the domain owner is an Internet

11 service provider or interactive computer service

12 provider, notify the customers of its Internet

13 service or interactive computer service, as the

14 case may be, in such manner as the provider

15 customarily employs for notifying such cus16 tomers of matters relating to such service, of—

17 (i) the election; and

18 (ii) the authority of the customers to

19 make the election provided for under para20 graph (3).

21 (3) CUSTOMER ELECTION TO CONTINUE RE22 CEIPT OF MAIL.—

23 (A) ELECTION.—Any customer of an

24 Internet service provider or interactive com25 puter service provider receiving a notice under
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1 paragraph (2)(B) may elect to continue to re2 ceive transmissions of unsolicited commercial

3 electronic mail through the domain covered by

4 the notice, notwithstanding the election of the

5 Internet service provider or interactive com6 puter service provider under paragraph (1) to

7 which the notice applies.

8 (B) TRANSMITTAL OF MAIL.—An Internet

9 service provider or interactive computer service

10 provider may not impose or collect any fee for

11 the receipt of unsolicited commercial electronic

12 mail under this paragraph (other than the

13 usual and customary fee imposed and collected

14 for the receipt of commercial electronic mail by

15 its customers) or otherwise discriminate against

16 a customer for the receipt of such mail under

17 this paragraph.

18 (C) LIST OF CUSTOMERS MAKING ELEC19 TION.—

20 (i) REQUIREMENT.—An Internet serv21 ice provider or interactive computer service

22 provider shall maintain a list of each of its

23 current customers who have made an elec24 tion under subparagraph (A).
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1 (ii) AVAILABILITY OF LIST.—Each

2 such provider shall make such list available

3 to the public in such form and manner as

4 the Commission shall require for purposes

5 of section 4(c).

6 (iii) PROHIBITION ON FEE.—A pro7 vider may not impose or collect any fee in

8 connection with any action taken under

9 this subparagraph.

10 (d) INFORMATION TO BE INCLUDED IN ALL TRANS11 MISSIONS.—A person initiating the transmission of any

12 unsolicited commercial electronic mail message shall in13 clude in the body of such message the following informa14 tion:

15 (1) The name, physical address, electronic mail

16 address, and telephone number of the person.

17 (2) A clear and obvious notice that the person

18 will cease further transmissions of commercial elec19 tronic mail to the recipient of the message at no cost

20 to that recipient upon the transmittal by that recipi21 ent to the person, at the electronic mail address

22 from which transmission of the message was initi23 ated, of an electronic mail message containing the

24 word ‘‘remove’’ in the subject line.
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1 (e) ROUTING INFORMATION.—A person initiating the

2 transmission of any commercial electronic mail message

3 shall ensure that all Internet routing information con4 tained in or accompanying such message is accurate, valid

5 according to the prevailing standards for Internet proto6 cols, and accurately reflects the routing of such message.

7 SEC. 3. DECEPTIVE ACTS OR PRACTICES IN CONNECTION

8 WITH SALE OF GOODS OR SERVICES OVER

9 THE INTERNET.

10 (a) AUTHORITY TO REGULATE.—

11 (1) IN GENERAL.—The Federal Trade Commis12 sion may prescribe rules for purposes of defining

13 and prohibiting deceptive acts or practices in connec14 tion with the promotion, advertisement, offering for

15 sale, or sale of goods or services on or by means of

16 the Internet.

17 (2) COMMERCIAL ELECTRONIC MAIL.—The

18 rules under paragraph (1) may contain specific pro19 visions addressing deceptive acts or practices in the

20 initiation, transmission, or receipt of commercial

21 electronic mail.

22 (3) NATURE OF VIOLATION.—The rules under

23 paragraph (1) shall treat any violation of such rules

24 as a violation of a rule under section 18 of the Fed25 eral Trade Commission Act (15 U.S.C. 57a), relat-
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1 ing to unfair or deceptive acts or practices affecting

2 commerce.

3 (b) PRESCRIPTION.—Section 553 of title 5, United

4 States Code, shall apply to the prescription of any rules

5 under subsection (a).

6 SEC. 4. FEDERAL TRADE COMMISSION ACTIVITIES WITH

7 RESPECT TO UNSOLICITED COMMERCIAL

8 ELECTRONIC MAIL.

9 (a) INVESTIGATION.—

10 (1) IN GENERAL.—Subject to paragraph (2),

11 upon notice of an alleged violation of a provision of

12 section 2, the Federal Trade Commission may con13 duct an investigation in order to determine whether

14 or not the violation occurred.

15 (2) LIMITATION.—The Commission may not

16 undertake an investigation of an alleged violation

17 under paragraph (1) more than 2 years after the

18 date of the alleged violation.

19 (3) RECEIPT OF NOTICES.—The Commission

20 shall provide for appropriate means of receiving no21 tices under paragraph (1). Such means shall include

22 an Internet web page on the World Wide Web that

23 the Commission maintains for that purpose.

24 (b) ENFORCEMENT POWERS.—If as a result of an in25 vestigation under subsection (a) the Commission deter-
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1 mines that a violation of a provision of section 2 has oc2 curred, the Commission shall have the power to enforce

3 such provision as if such violation were a violation of a

4 rule prescribed under section 18 of the Federal Trade

5 Commission Act (15 U.S.C. 57a), relating to unfair or de6 ceptive acts or practices affecting commerce.

7 (c) INFORMATION ON ELECTIONS UNDER DOMAIN8 WIDE OPT-OUT SYSTEM.—

9 (1) INITIAL SITE FOR INFORMATION.—The

10 Commission shall establish and maintain an Internet

11 web page on the World Wide Web containing infor12 mation sufficient to make known to the public for

13 purposes of section 2 the domain owners who have

14 made an election under subsection (c)(1) of that sec15 tion and the persons who have made an election

16 under subsection (c)(3) of that section.

17 (2) ALTERNATIVE SITE.—The Commission may

18 from time to time select another means of making

19 known to the public the information specified in

20 paragraph (1). Any such selection shall be made in

21 consultation with the members of the Internet com22 munity.

23 (d) ASSISTANCE OF OTHER FEDERAL AGENCIES.—

24 Other Federal departments and agencies may, upon re-
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1 quest of the Commission, assist the Commission in car2 rying out activities under this section.

3 SEC. 5. ACTIONS BY STATES.

4 (a) IN GENERAL.—Whenever the attorney general of

5 a State has reason to believe that the interests of the resi6 dents of the State have been or are being threatened or

7 adversely affected because any person is engaging in a pat8 tern or practice of the transmission of electronic mail in

9 violation of a provision of section 2, or of any rule pre10 scribed pursuant to section 3, the State, as parens patriae,

11 may bring a civil action on behalf of its residents to enjoin

12 such transmission, to enforce compliance with such provi13 sion or rule, to obtain damages or other compensation on

14 behalf of its residents, or to obtain such further and other

15 relief as the court considers appropriate.

16 (b) NOTICE TO COMMISSION.—

17 (1) NOTICE.—The State shall serve prior writ18 ten notice of any civil action under this section on

19 the Federal Trade Commission and provide the

20 Commission with a copy of its complaint, except that

21 if it is not feasible for the State to provide such

22 prior notice, the State shall serve written notice im23 mediately after instituting such action.
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1 (2) RIGHTS OF COMMISSION.—On receiving a

2 notice with respect to a civil action under paragraph

3 (1), the Commission shall have the right—

4 (A) to intervene in the action;

5 (B) upon so intervening, to be heard in all

6 matters arising therein; and

7 (C) to file petitions for appeal.

8 (c) ACTIONS BY COMMISSION.—Whenever a civil ac9 tion has been instituted by or on behalf of the Commission

10 for violation of a provision of section 2, or of any rule

11 prescribed pursuant to section 3, no State may, during

12 the pendency of such action, institute a civil action under

13 this section against any defendant named in the complaint

14 in such action for violation of any provision or rule as al15 leged in the complaint.

16 (d) CONSTRUCTION.—For purposes of bringing a civil

17 action under subsection (a), nothing in this section shall

18 prevent an attorney general from exercising the powers

19 conferred on the attorney general by the laws of the State

20 concerned to conduct investigations or to administer oaths

21 or affirmations or to compel the attendance of witnesses

22 or the production of documentary or other evidence.

23 (e) VENUE; SERVICE OF PROCESS.—Any civil action

24 brought under subsection (a) in a district court of the

25 United States may be brought in the district in which the
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1 defendant is found, is an inhabitant, or transacts business

2 or wherever venue is proper under section 1391 of title

3 28, United States Code. Process in such an action may

4 be served in any district in which the defendant is an in5 habitant or in which the defendant may be found.

6 (f) DEFINITIONS.—In this section:

7 (1) ATTORNEY GENERAL.—The term ‘‘attorney

8 general’’ means the chief legal officer of a State.

9 (2) STATE.—The term ‘‘State’’ means any

10 State of the United States, the District of Columbia,

11 Puerto Rico, Guam, American Samoa, the United

12 States Virgin Islands, the Commonwealth of the

13 Northern Mariana Islands, the Republic of the Mar14 shall Islands, the Federated States of Micronesia,

15 the Republic of Palau, and any possession of the

16 United States.

17 SEC. 6. ACTIONS BY INTERNET SERVICE PROVIDERS AND

18 INTERACTIVE COMPUTER SERVICE PRO19 VIDERS.

20 (a) ACTIONS AUTHORIZED.—In addition to any other

21 remedies available under any other provision of law, any

22 Internet service provider or interactive computer service

23 provider adversely affected by a violation of section

24 2(b)(1) may, within 1 year after discovery of the violation,
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1 bring a civil action in a district court of the United States

2 against a person who violates such section.

3 (b) RELIEF.—

4 (1) IN GENERAL.—An action may be brought

5 under subsection (a) to enjoin a violation referred to

6 in that subsection, to enforce compliance with the

7 provision referred to in that subsection, to obtain

8 damages as specified in paragraph (2), or to obtain

9 such further and other relief as the court considers

10 appropriate.

11 (2) DAMAGES.—

12 (A) IN GENERAL.—The amount of dam13 ages in an action under this section for a viola14 tion specified in subsection (a) may not exceed

15 $50,000 per day in which electronic mail consti16 tuting such violation was received.

17 (B) RELATIONSHIP TO OTHER DAM18 AGES.—Damages awarded under this subsection

19 for a violation under subsection (a) are in addi20 tion to any other damages awardable for the

21 violation under any other provision of law.

22 (C) COST AND FEES.—The court may, in

23 issuing any final order in any action brought

24 under subsection (a), award costs of suit, rea25 sonable costs of obtaining service of process,
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1 reasonable attorney fees, and expert witness

2 fees for the prevailing party.

3 (c) VENUE; SERVICE OF PROCESS.—Any civil action

4 brought under subsection (a) in a district court of the

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

6 defendant or in which the Internet service provider or

7 interactive computer service provider is located, is an in8 habitant, or transacts business or wherever venue is prop9 er under section 1391 of title 28, United States Code.

10 Process in such an action may be served in any district

11 in which the defendant is an inhabitant or in which the

12 defendant may be found.

13 SEC. 7. PREEMPTION.

14 This Act preempts any State or local laws regarding

15 the transmission or receipt of commercial electronic mail.

16 SEC. 8. DEFINITIONS.

17 In this Act:

18 (1) COMMERCIAL ELECTRONIC MAIL.—The

19 term ‘‘commercial electronic mail’’ means any elec20 tronic mail or similar message whose primary pur21 pose is to initiate a commercial transaction, not in22 cluding messages sent by persons to others with

23 whom they have a prior business relationship.

24 (2) INITIATE THE TRANSMISSION.—
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1 (A) IN GENERAL.—The term ‘‘initiate the

2 transmission’’, in the case of an electronic mail

3 message, means to originate the electronic mail

4 message.

5 (B) EXCLUSION.—Such term does not in6 clude any intervening action to relay, handle, or

7 otherwise retransmit an electronic mail mes8 sage, unless such action is carried out in inten9 tional violation of a provision of section 2.

10 (3) INTERACTIVE COMPUTER SERVICE PRO11 VIDER.—The term ‘‘interactive computer service

12 provider’’ means a provider of an interactive com13 puter service (as that term is defined in section

14 230(e)(2) of the Communications Act of 1934 (47

15 U.S.C. 230(e)(2)).

16 (4) INTERNET.—The term ‘‘Internet’’ has the

17 meaning given that term in section 230(e)(1) of the

18 Communications Act of 1934 (47 U.S.C. 230(e)(1)).

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