I

106TH CONGRESS

1ST SESSION H. R. 1685

To provide for the recognition of electronic signatures for the conduct of

interstate and foreign commerce, to restrict the transmission of certain

electronic mail advertisements, to authorize the Federal Trade Commission to prescribe rules to protect the privacy of users of commercial

Internet websites, to promote the rapid deployment of broadband Internet

services, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

MAY 5, 1999

Mr. BOUCHER (for himself and Mr. GOODLATTE) introduced the following bill;

which was referred to the Committee on 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 provide for the recognition of electronic signatures for

the conduct of interstate and foreign commerce, to restrict the transmission of certain electronic mail advertisements, to authorize the Federal Trade Commission

to prescribe rules to protect the privacy of users of

commercial Internet websites, to promote the rapid deployment of broadband Internet services, 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,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Internet Growth and

3 Development Act of 1999’’.

4 TITLE I—AUTHORIZATION OF

5 ELECTRONIC SIGNATURES IN

6 COMMERCE

7 SEC. 101. DEFINITIONS.

8 For purposes of this title, the following definitions

9 shall apply:

10 (1) ELECTRONIC COMMERCE.—The term ‘‘elec11 tronic commerce’’ means the transaction or conduct

12 of any business that is in or that affects interstate

13 or foreign commerce and that is in whole or part

14 transacted or conducted by electronic means.

15 (2) ELECTRONIC MEANS.—The term ‘‘electronic

16 means’’ includes all forms of electronic communica17 tion mediated by computer, including telephonic

18 communications, facsimile, electronic mail, electronic

19 data exchanges, satellite, cable, and fiber optic com20 munications.

21 (3) ELECTRONIC AUTHENTICATION.—The term

22 ‘‘electronic authentication’’ means any methodology,

23 technology, or technique intended to—

24 (A) establish the identity of the maker,

25 sender, or originator of a document or commu26 nication in electronic commerce; and
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1 (B) establish the fact that the document or

2 communication has not been altered.

3 (4) ELECTRONIC SIGNATURE.—The term ‘‘elec4 tronic signature’’ means any electronic symbol or se5 ries of symbols, created, or processed by a computer,

6 intended by the party using it (or authorizing its

7 use) to have the same legal force and effect as a

8 manual signature.

9 SEC. 102. VALIDITY OF ELECTRONIC AUTHENTICATION.

10 (a) VALIDITY OF ELECTRONIC SIGNATURES.—All

11 electronic signatures that have been authenticated through

12 the use of a means of electronic authentication that com13 plies with subsection (d) shall have standing equal to

14 paper-based, written signatures, so that—

15 (1) any rule of law which requires a record to

16 be in writing shall be deemed satisfied; and

17 (2) any rule of law which requires a signature

18 shall be deemed satisfied.

19 (b) VALIDITY OF ELECTRONIC RECORDS.—Elec20 tronic records shall not be denied legal effect, validity, or

21 enforceability solely because such records are in electronic

22 form.

23 (c) VALIDITY OF STATE LAWS.—Nothing in this sec24 tion shall be construed to preempt the law of a State that
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1 enacts legislation governing electronic transactions that is

2 consistent with subsections (a) and (b).

3 (d) MEANS OF ELECTRONIC AUTHENTICATION.—

4 (1) IN GENERAL.—For purposes of this title, a

5 means of electronic authentication complies with the

6 requirements of this section if it—

7 (A) reliably establishes the identity of the

8 maker, sender, or originator of a document or

9 communication in electronic commerce; and

10 (B) reliably establishes the fact that the

11 document or communication has not been al12 tered.

13 (2) METHODS OF PROOF.—A person may dem14 onstrate compliance with the requirements of para15 graph (1) by demonstrating that a means of elec16 tronic authentication—

17 (A) uses an identification methodology that

18 is unique to the person making, sending, origi19 nating a document or communication;

20 (B) the identification methodology shall be

21 capable of verifying the identity of such person;

22 and

23 (C) the identification methodology is linked

24 to the data or communication transmitted in

25 such a manner that if such data or communica-
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1 tion has been altered, the authentication be2 comes invalid.

3 TITLE II—ELECTRONIC MAIL

4 ADVERTISEMENTS

5 SEC. 201. UNSOLICITED ELECTRONIC MAIL ADVERTISE6 MENTS.

7 Title VII of the Communications Act of 1934 is

8 amended by adding at the end the following section:

9 ‘‘SEC. 715. UNSOLICITED ELECTRONIC MAIL ADVERTISE10 MENTS.

11 ‘‘(a) COMPLIANCE OF REGISTERED USERS WITH

12 PROVIDER POLICY REQUIRED.—No registered user of an

13 electronic mail service provider shall use or cause to be

14 used that electronic mail service provider’s equipment in

15 violation of that electronic mail service provider’s policy

16 prohibiting or restricting the use of its service or equip17 ment for the initiation of unsolicited electronic mail adver18 tisements.

19 ‘‘(b) COMPLIANCE BY SENDERS WITH PROVIDER

20 POLICY REQUIRED.—No person or other entity shall use

21 or cause to be used, by initiating an unsolicited electronic

22 mail advertisement, an electronic mail service provider’s

23 equipment in violation of that electronic mail service pro24 vider’s policy prohibiting or restricting the use of its equip-
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1 ment to deliver unsolicited electronic mail advertisements

2 to its registered users.

3 ‘‘(c) PROVIDER POLICIES NOT REQUIRED.—An elec4 tronic mail service provider shall not be required to create

5 a policy prohibiting or restricting the use of its equipment

6 for the initiation or delivery of unsolicited electronic mail

7 advertisements.

8 ‘‘(d) CONTINUED PROTECTION FROM BEING TREAT9 ED AS PUBLISHER.—Nothing in this section shall be con10 strued to limit or restrict the rights of an electronic mail

11 service provider under section 230(c)(1) of this Act, or any

12 decision of an electronic mail service provider to permit

13 or to restrict access to or use of its system, or any exercise

14 of its editorial function.

15 ‘‘(e) REMEDIES.—

16 ‘‘(1) PRIVATE ACTIONS BY PROVIDERS.—In ad17 dition to any other remedy available under law, any

18 electronic mail service provider whose policy on un19 solicited electronic mail advertisements is violated as

20 provided in this section may bring a civil action to

21 recover the actual monetary loss suffered by that

22 provider by reason of that violation, or liquidated

23 damages of $50 for each electronic mail message ini24 tiated or delivered in violation of this section, up to
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1 a maximum of $25,000 per day, whichever amount

2 is greater.

3 ‘‘(2) ATTORNEY FEES.—In any action brought

4 pursuant to paragraph (1), the court may award

5 reasonable attorney’s fees to a prevailing party.

6 ‘‘(3) NOTICE OF POLICY REQUIRED.—In any

7 action brought pursuant to paragraph (1), the elec8 tronic mail service provider shall be required to es9 tablish as an element of its cause of action that

10 prior to the alleged violation, the defendant had ac11 tual notice of both of the following:

12 ‘‘(A) The electronic mail service provider’s

13 policy on unsolicited electronic mail advertising

14 and

15 ‘‘(B) The fact that the defendant’s unsolic16 ited electronic mail advertisements would use or

17 cause to be used the electronic mail service pro18 vider’s equipment.

19 ‘‘(f) DEFINITIONS.—As used in this section:

20 ‘‘(1) ELECTRONIC MAIL ADVERTISEMENT.—The

21 term ‘electronic mail advertisement’ means any elec22 tronic mail message, the principal purpose of which

23 is to promote, directly or indirectly, the sale or other

24 commercial distribution of goods or services to the

25 recipient.
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1 ‘‘(2) UNSOLICITED ELECTRONIC MAIL ADVER2 TISEMENT.—The term ‘unsolicited electronic mail

3 advertisement’ means any electronic mail advertise4 ment that meets both of the following requirements:

5 ‘‘(A) It is addressed to a recipient with

6 whom the initiator does not have an existing

7 business or personal relationship.

8 ‘‘(B) It is not sent at the request of or

9 with the express consent of the recipient.

10 ‘‘(3) ELECTRONIC MAIL SERVICE PROVIDER.—

11 The term ‘electronic mail service provider’ means

12 any person or other entity that provides registered

13 users the ability to send or receive electronic mail

14 and that is an intermediary in sending or receiving

15 electronic mail.

16 ‘‘(4) INITIATION.—The term ‘initiation’ of an

17 unsolicited electronic mail advertisement refers to

18 the action by the initial sender of the electronic mail

19 advertisement. It does not refer to the actions of any

20 intervening electronic mail service provider that may

21 handle or retransmit the electronic message.

22 ‘‘(5) REGISTERED USER.—The term ‘registered

23 user’ means any person or other entity that main24 tains an electronic mail address with an electronic

25 mail service provider.’’.
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1 TITLE III—ONLINE PRIVACY

2 PROTECTION

3 SEC. 301. ONLINE PRIVACY PROTECTION.

4 (a) INFORMATION COLLECTION REGULATIONS.—Any

5 person operating a commercial Internet website shall

6 clearly and conspicuously provide notice of its collection,

7 use, and disclosure policies with regard to personally iden8 tifiable information, including—

9 (1) the personally identifiable information that

10 the website operator collects from individuals visiting

11 the website; and

12 (2) the uses that the website operator makes of

13 the personally identifiable information, including

14 whether the operator makes the information avail15 able to any third parties.

16 (b) ENFORCEMENT.—Any knowing violation of the

17 requirements under subsection (a) shall be treated as an

18 unfair or deceptive act or practice under section 5 of the

19 Federal Trade Commission Act (15 U.S.C. 45).

20 TITLE IV—BROADBAND

21 DEPLOYMENT

22 SEC. 401. ACCELERATED DEPLOYMENT OF INTERNET

23 BACKBONE.

24 (a) INTERLATA INTERNET SERVICES.—Paragraph

25 (21) of section 3 of the Communications Act of 1934 (47
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1 U.S.C. 153(21)), relating to the definition of interLATA

2 service, is amended by inserting before the period the fol3 lowing: ‘‘, except that such term shall not include services

4 that consist of or include the transmission of any data or

5 information, including any writing, signs, signals, pictures,

6 or sounds related to the transmission of such data or in7 formation, by means of the Internet or any other network

8 that employs Internet Protocol-based or other packet9 switched technology’’.

10 (b) VOICE INTERLATA INTERNET SERVICES.—Nei11 ther a Bell operating company, nor any affiliate of a Bell

12 operating company, may provide, by means of the Internet

13 or any other network that employs Internet Protocol-based

14 or other packet-switched technology, two-way voice-only

15 interLATA telecommunications services originating in any

16 of its in-region States until such time as the Federal Com17 munications Commission approves the application of such

18 company for such State pursuant to section 271(d) of the

19 Communications Act of 1934. The terms in this sub20 section shall have the same respective meanings given such

21 terms in sections 3 and 271 of such Act.
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1 SEC. 402. ACCELERATED DEPLOYMENT OF BROADBAND

2 SERVICES.

3 Title VII of the Communications Act of 1934 is fur4 ther amended by adding at the end thereof the following

5 new section:

6 ‘‘SEC. 716. ACCELERATED DEPLOYMENT OF BROADBAND

7 SERVICES.

8 ‘‘(a) BROADBAND SERVICES PLANS.—

9 ‘‘(1) PLAN REQUIRED.—Within 180 days after

10 the effective date of this section, each local exchange

11 carrier shall submit to the State commission in each

12 State in which such carrier does business a plan to

13 provide broadband telecommunications service in all

14 local exchange areas in which such carrier has tele15 phone exchange service customers as soon as such

16 broadband telecommunications service is economi17 cally reasonably and technically feasible. The plan

18 shall include all terms and conditions, including pric19 ing, under which the services shall be provided. The

20 test of economic reasonability and technical feasi21 bility shall be made separately by the local exchange

22 carrier for each local exchange, and the plan shall be

23 considered certified 45 days after submission unless

24 the State commission rejects the plan within such 45

25 days. Upon rejection of a plan, successive plans shall

26 be submitted until approval is obtained. The plan
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1 shall be implemented within 180 days of the certifi2 cation of the plan in each local exchange in which

3 the provision of the service is both economically rea4 sonable and technically feasible. Upon certification

5 of its plan, the carrier shall be obligated by terms

6 of the plan (including any modifications that it re7 quests that are thereafter certified) but shall other8 wise provide such services free of Federal and State

9 price, rate, rate of return, and profit regulation.

10 Upon a determination by the State commission that

11 a local exchange is served by another provider of

12 broadband telecommunications services, or any

13 broadband Internet access transport provider, or

14 upon a determination by such State commission that

15 the local exchange carrier makes broadband tele16 communications services available to 70 percent of

17 the access lines in an exchange, a local exchange

18 carrier shall no longer be obligated by the terms of

19 any such plan in such local exchange.

20 ‘‘(2) STATE MODIFICATIONS PROHIBITED.—Ex21 cept upon request of the carrier, the State commis22 sion shall have no authority to modify any plan sub23 mitted pursuant to paragraph (1).

24 ‘‘(3) NO COMMISSION AUTHORITY.—The Com25 mission shall have no authority with respect to the
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1 terms of any plan and shall have no authority with

2 respect to the approval or rejection of any such plan.

3 ‘‘(b) SUPERSESSION OF OTHER REQUIREMENTS.—

4 An incumbent local exchange carrier’s provision of

5 broadband local telecommunications services shall not be

6 subject to the requirements of sections 251(c)(3) and

7 251(c)(4) of the Act in any State in which that carrier

8 certifies to the State commission that—

9 ‘‘(1) in central offices in which it provides local

10 loops that are conditioned for broadband services, it

11 provides such loops to other carriers at least as

12 quickly as it provides them for its own customers;

13 ‘‘(2) in central offices in which it does not cur14 rently provide local loops that are conditioned for

15 broadband services, but in which such service is eco16 nomically reasonable and technically feasible, it will

17 provide such loops within 120 days of a request for

18 such conditioning from another carrier; and

19 ‘‘(3) conditioned loops are provided upon such

20 prices and other terms and conditions as the parties

21 shall agree, or in any event of disagreements, as are

22 determined through commercial arbitration, in which

23 the commercial arbitrator shall establish the price

24 based upon the cost of the loops and the costs for
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1 such conditioning that have been incurred by the

2 local exchange carrier plus a reasonable profit.’’.

3 TITLE V—ANTITRUST AND

4 CRIMINAL PROVISIONS

5 SEC. 501. PROHIBITION ON ANTICOMPETITIVE BEHAVIOR

6 BY INCUMBENT LOCAL EXCHANGE CAR7 RIERS.

8 In any civil action based on a claim arising under

9 section 1, 2, or 3 of the Sherman Act (15 U.S.C. 1, 2,

10 3), evidence that an incumbent local exchange carrier that

11 has market power in the broadband service provider mar12 ket has willfully and knowingly failed to provide condi13 tioned unbundled local loops when economically reasonable

14 and technically feasible under section 716(a) of the Com15 munications Act of 1934, or restrains unreasonably the

16 ability of a carrier to compete in its provision of

17 broadband services over a local loop, shall be sufficient to

18 establish a presumption of a violation of such section 1,

19 2, or 3 of the Sherman Act.

20 SEC. 502. PROHIBITION ON ANTICOMPETITIVE CONTRACTS

21 BY BROADBAND ACCESS TRANSPORT PRO22 VIDERS.

23 In any civil action based on a claim arising under

24 section 1, 2, or 3 of the Sherman Act (15 U.S.C. 1, 2,

25 3), evidence that a broadband access transport provider
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1 that has market power in the broadband service provider

2 market has offered access to a service provider on terms

3 and conditions, other than terms justified by demonstrable

4 cost differentials, that are less favorable than those offered

5 by such operator to itself, to an affiliated service provider,

6 or to another service provider, or restrains unreasonably

7 the ability of a service provider from competing in its pro8 vision of broadband services, shall be sufficient to establish

9 a presumption of a violation of such section.

10 SEC. 503. PROHIBITION ON ANTICOMPETITIVE OR DIS11 CRIMINATORY BEHAVIOR BY BROADBAND

12 ACCESS TRANSPORT PROVIDERS.

13 It shall be unlawful for a broadband access transport

14 provider to engage in unfair methods of competition or

15 unfair or deceptive acts or practices, the purpose or effect

16 of which is to discriminate in favor of a service provider

17 that is affiliated with a broadband access transport pro18 vider or to restrain unreasonably the ability of a service

19 provider that is not affiliated with a broadband access

20 transport provider from competing in its provision of any

21 of the services provided by a service provider as set forth

22 in section 505(3).
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1 SEC. 504. PROTECTION FROM FRAUDULENT UNSOLICITED

2 E-MAIL.

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

4 amended—

5 (1) in subsection (a)(5)—

6 (A) by striking ‘‘or’’ at the end of subpara7 graph (B); and

8 (B) by inserting after subparagraph (C)

9 the following new subparagraphs:

10 ‘‘(D) intentionally and without authorization

11 initiates the transmission of a bulk unsolicited elec12 tronic mail message to a protected computer with

13 knowledge that such message falsifies an Internet

14 domain, header information, date or time stamp,

15 originating e-mail address or other identifier; or

16 ‘‘(E) intentionally sells or distributes any com17 puter program that—

18 ‘‘(i) is designed or produced primarily for

19 the purpose of concealing the source or routing

20 information of bulk unsolicited electronic mail

21 messages in a manner prohibited by subpara22 graph (D) of this paragraph;

23 ‘‘(ii) has only limited commercially signifi24 cant purpose or use other than to conceal such

25 source or routing information; or
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1 ‘‘(iii) is marketed by the violator or an2 other person acting in concert with the violator

3 and with the violator’s knowledge for use in

4 concealing the source or routing information of

5 such messages;’’;

6 (2) in subsection (c)(2)(A)—

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

8 an offense’’; and

9 (B) by inserting after ‘‘an offense punish10 able under this subparagraph;’’ the following: ‘‘;

11 or (ii) under subsection (a)(5)(D) or (a)(5)(E)

12 of this section which results in damage to a

13 protected computer’’;

14 (3) in subsection (c)(2), by adding at the end

15 the following new subparagraph:

16 ‘‘(D) in the case of a violation of subsection

17 (a)(5)(D) or (E), actual monetary loss and statutory

18 damages of $15,000 per violation or an amount of

19 up to $10 per message per violation whichever is

20 greater; and’’;

21 (4) in subsection (e)—

22 (A) by striking ‘‘and’’ at the end of para23 graph (8);

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

25 paragraph (9); and
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1 (C) by adding at the end the following new

2 paragraphs:

3 ‘‘(10) the term ‘initiates the transmission’

4 means, in the case of an electronic mail message, to

5 originate the electronic mail message, and excludes

6 the actions of any interactive computer service whose

7 facilities or services are used by another person to

8 transmit, relay, or otherwise handle such message;

9 ‘‘(11) the term ‘Internet domain’ means a spe10 cific computer system (commonly referred to as a

11 ‘host’) or collection of computer systems attached to

12 or able to be referenced from the Internet which are

13 assigned a specific reference point on the Internet

14 (commonly referred to as an ‘Internet domain

15 name’) and registered with an organization recog16 nized by the Internet industry as a registrant of

17 Internet domains;

18 ‘‘(12) the term ‘unsolicited electronic mail mes19 sage’ means any substantially identical electronic

20 mail message other than electronic mail initiated by

21 any purpose to others with whom such person has

22 a prior relationship, including prior business rela23 tionship, or electronic mail sent by a source to re24 cipients where such recipients, or their designees,
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1 have at any time affirmatively requested to receive

2 communications from that source; and

3 ‘‘(13) the term ‘Internet’ means all computer

4 and telecommunications facilities, including equip5 ment and operating software, which comprise the

6 interconnected network of networks that employ the

7 Transmission Control Protocol/Internet Protocol, or

8 any predecessor or successor protocols to such pro9 tocol, to communicate information of all kinds by

10 wire or radio.’’.

11 (5) in subsection (g), by inserting ‘‘and reason12 able attorneys’ fees and other litigation costs reason13 ably incurred in connection with civil action’’ after

14 ‘‘injunctive relief or other equitable relief’’.

15 SEC. 505. DEFINITIONS.

16 For purposes of this title:

17 (1) BROADBAND.—The term ‘‘broadband’’ re18 fers to a transmission capability in excess of 200

19 kilobits per second in at least one direction.

20 (2) BROADBAND ACCESS TRANSPORT PRO21 VIDER.—The term ‘‘broadband access transport pro22 vider’’ means one who engages in the broadband

23 transmission of data between a user and his service

24 provider’s point of interconnection with the

25 broadband access transport provider’s facilities.
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1 Such term shall also include a service provider who

2 provides to itself, over facilities owned by it or under

3 its control, the broadband transport of services be4 tween itself and its users.

5 (3) SERVICE PROVIDER.—The term ‘‘service

6 provider’’ means a person who provides a service

7 that enables users to access content, information,

8 electronic mail, or other services. The term may also

9 include access to proprietary content, information,

10 and other services as part of a package of services

11 offered to consumers.

12 (4) INTERNET.—The term ‘‘Internet’’ means all

13 computer and telecommunications facilities, includ14 ing equipment and operating software, which com15 prise the interconnected network of networks that

16 employ the Transmission Control Protocol/Internet

17 Protocol, or any predecessor or successor protocols

18 to such protocol, to communicate information of all

19 kinds by wire or radio.

20 (5) BROADBAND SERVICE PROVIDER MAR21 KET.—The term ‘‘broadband service provider mar22 ket’’ includes the provision of broadband services

23 over a single broadband access transport provider’s

24 facilities.

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