II

106TH CONGRESS

2D SESSION S. 2542

To protect individuals, families, and ISPs from unsolicited bulk commercial

e-mail.

IN THE SENATE OF THE UNITED STATES

MAY 11, 2000

Mr. BURNS (for himself, Mr. WYDEN, Mr. LIEBERMAN, Ms. LANDRIEU, and

Mr. TORRICELLI) introduced the following bill; which was read twice and

referred to the Committee on Commerce, Science, and Transportation

A BILL

To protect individuals, families, and ISPs from unsolicited

bulk commercial e-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; TABLE OF SECTIONS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Controlling the Assault of Non-Solicited Pornography

6 and Marketing Act of 2000’’.

7 (b) TABLE OF SECTIONS.—The table of sections for

8 this Act is as follows:

Sec. 1. Short title; table of sections.

Sec. 2. Findings.

Sec. 3. Public policy statement.

Sec. 4. Prohibited acts.
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Sec. 5. Rules applicable to ISPs.

Sec. 6. Rules applicable to domain registrar information.

Sec. 7. Notification of violators.

Sec. 8. Enforcement of orders.

Sec. 9. Remedies available to ISPs.

Sec. 10. Enforcement by States.

Sec. 11. Effect on other laws.

Sec. 12. Commission study into effects of unsolicited bulk commercial electronic

mail.

Sec. 13. Definitions.

Sec. 14. Effective date.

1 SEC. 2. FINDINGS.

2 The Congress makes the following findings:

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

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

7 unprecedented opportunities for the development and

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

10 Internet to reach its full potential, individuals and

11 entities using the Internet and other online services

12 should be prevented from engaging in activities that

13 prevent other users and ISPs from having a reason14 ably predictable, efficient, and economical online ex15 perience.

16 (3) Unsolicited commercial e-mail can be an im17 portant mechanism through which businesses adver18 tise and attract customers in the online environment.

19 (4) The receipt of unsolicited commercial e-mail

20 may result in costs to recipients who cannot refuse
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1 to accept such mail and who incur costs for the stor2 age of such mail, or for the time spent accessing, re3 viewing, and discarding such mail, or for both.

4 (5) Unsolicited commercial e-mail may impose

5 significant monetary costs on interactive computer

6 services, businesses, and educational and nonprofit

7 institutions that carry and receive such mail, as

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

9 businesses, and institutions can handle without fur10 ther investment. The sending of such mail is increas11 ingly and negatively affecting the quality of service

12 provided to customers of interactive computer serv13 ice, and shifting costs from the sender of the adver14 tisement to the interactive computer service.

15 (6) While some senders of unsolicited commer16 cial e-mail provide simple and reliable ways for re17 cipients to reject (or ‘‘opt-out’’ of) receipt of unsolic18 ited commercial e-mail from such senders in the fu19 ture, other senders provide no such ‘‘opt-out’’ mech20 anism, or refuse to honor the requests of recipients

21 not to receive e-mail from such senders in the fu22 ture, or both.

23 (7) An increasing number of senders of unsolic24 ited commercial e-mail and unsolicited pandering e25 mail purposefully disguise the source of such mail
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1 so as to prevent recipients from responding to such

2 mail quickly and easily.

3 (8) Many senders of unsolicited commercial e4 mail and unsolicited pandering e-mail collect or har5 vest e-mail addresses of potential recipients without

6 the knowledge of those recipients and in violation of

7 the rules or terms of service of the database from

8 which such addresses are collected.

9 (9) Because recipients of unsolicited commercial

10 e-mail and unsolicited pandering e-mail are unable

11 to avoid the receipt of such mail through reasonable

12 means, such mail may invade the privacy of recipi13 ents.

14 (10) In legislating against certain abuses on the

15 Internet, Congress should be very careful to avoid

16 infringing in any way upon constitutionally protected

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

18 and privacy.

19 SEC. 3. PUBLIC POLICY STATEMENT.

20 The Congress makes the following statement of pub21 lic policy:

22 (1) There is substantial government interest in

23 regulation of unsolicited bulk commercial e-mail.

24 (2) The cost to the public of Internet use is in25 creased by costs incurred by ISPs for the trans-
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1 mission and retransmission of unsolicited commer2 cial e-mail.

3 (3) Recipients of unsolicited commercial e-mail

4 have a right to decline to receive or have their chil5 dren receive unsolicited commercial e-mail.

6 SEC. 4. PROHIBITED ACTS.

7 (a) RETURN ADDRESS REQUIRED.—It is unlawful for

8 any person to initiate the transmission of an unsolicited

9 commercial e-mail message to any person within the

10 United States unless the message contains a valid and le11 gitimately obtained e-mail address, conspicuously dis12 played, to which a recipient may send a reply to the sender

13 asking the sender to send no further unsolicited bulk com14 mercial e-mail messages to the recipient at the e-mail ad15 dress at which the message was received.

16 (b) TRANSMISSION AFTER REQUESTED STOP.—It is

17 unlawful for a sender to initiate the transmission of an

18 unsolicited bulk commercial e-mail message to a recipient

19 who sent a reply under subsection (a) asking the sender

20 not to send further such e-mail to the recipient if the e21 mail message is sent more than 10 days after the sender

22 received the reply.

23 (c) FALSIFICATION OF TRANSMISSION INFORMA24 TION.—It is unlawful for any person to initiate the trans25 mission of an unsolicited commercial e-mail message to
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1 any person in the United States with false or misleading

2 e-mail transmission address or routing information. For

3 purposes of this subsection, information is misleading if

4 it is intended, or reasonably may be expected, to mislead

5 the recipient about the origin of the e-mail message or

6 the address to which a reply may be sent under subsection

7 (a).

8 (d) SALE OR DISTRIBUTION OF PROHIBITED SOFT9 WARE.—It is unlawful for any person knowingly to sell,

10 give, or otherwise distribute, or to possess with the intent

11 to sell, give, or distribute any software, that—

12 (1) is primarily designed or produced for the

13 purpose of facilitating or enabling the falsification of

14 unsolicited commercial e-mail transmission or rout15 ing information;

16 (2) has limited commercially-significant pur17 poses or uses other than to facilitate or enable the

18 falsification of e-mail transmission or routing infor19 mation; or

20 (3) is marketed for the purpose of facilitating

21 or enabling the falsification of e-mail transmission or

22 routing information.

23 SEC. 5. RULES APPLICABLE TO ISPs.

24 (a) TRANSMISSION WITHOUT COMPENSATION.—Not25 withstanding any other provision of law to the contrary,
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1 an ISP may decline to transmit unsolicited commercial e2 mail messages to its subscribers without compensation

3 from the sender.

4 (b) ISP HELD HARMLESS FOR GOOD FAITH PRI5 VATE ENFORCEMENT.—An ISP is not liable, under any

6 Federal or State civil or criminal law, for any action it

7 takes in good faith to block the transmission or receipt

8 of unsolicited commercial e-mail.

9 (c) INNOCENT RETRANSMISSION.—An ISP the facili10 ties of which are used only as an intermediary, retrans11 mitter, or relay for unsolicited bulk commercial e-mail

12 transmitted in violation of section 4 is not liable for any

13 harm resulting from the transmission or receipt of that

14 e-mail unless it permits the transmission or retransmission

15 of such e-mail with actual knowledge that the transmission

16 is prohibited by section 4.

17 SEC. 6. RULES APPLICABLE TO DOMAIN REGISTRAR INFOR18 MATION.

19 (a) UNLAWFUL DISCLOSURE OR USE.—It is unlawful

20 for any person within the United States to use or disclose

21 domain name registration data, obtained from a domain

22 name registrar, domain name registry, or other domain

23 registration authority if—
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1 (1) that use or disclosure violates policies of

2 that registrar, registry, or authority that are clearly

3 and conspicuously posted on its website; and

4 (2) the data is used for the purpose of trans5 mitting or enabling the transmission of unsolicited

6 bulk commercial e-mail in violation of section 4.

7 (b) NO LIABILITY FOR FAILURE TO DISCLOSE.—Ex8 cept as provided in subsection (c), a domain name reg9 istrar, domain name registry, or other domain registration

10 authority is not liable from any harm resulting from its

11 failure or refusal to disclose domain name registration

12 data if that failure or refusal is based on a good faith

13 belief that disclosure of the data would result in its being

14 used to transmit, or enable the transmission of, an unsolic15 ited commercial e-mail message in violation of section 4.

16 (c) LIMITATION.—Subsection (b) does not permit a

17 domain name registrar, domain name registry, or other

18 domain registration authority to limit or restrict access

19 to domain name registration data if that access is sought

20 for the purpose of—

21 (1) enforcing intellectual property rights;

22 (2) law enforcement; or

23 (3) consumer protection.

24 SEC. 7. NOTIFICATION OF VIOLATORS.

25 (a) NOTIFICATION PROCESS.—
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1 (1) IN GENERAL.—The Commission shall send

2 a notification of alleged violation to any person who

3 violates section 4 if—

4 (A) the Commission has been notified, in

5 such form and manner as the Commission may

6 prescribe, by a recipient or Internet Service

7 Provider that an unsolicited bulk commercial e8 mail message has been received that was trans9 mitted in violation of section 4; or

10 (B) the Commission has other reason to

11 believe that such person has violated or is vio12 lating section 4.

13 (2) RECIPIENT’S CHILDREN TO BE PERSON14 ALLY IDENTIFIED.—If requested by a recipient of an

15 unsolicited bulk commercial e-mail message that was

16 transmitted in violation of section 4, the Commission

17 shall include the e-mail address of any child of the

18 recipient in the notice.

19 (3) TERMS OF NOTIFICATION.—The notification

20 shall—

21 (A) direct the person to which it is ad22 dressed to refrain from initiating or transmit23 ting further unsolicited bulk commercial e-mail

24 messages to any e-mail address described in the

25 notification or to an Internet Service Provider
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1 designated in the notification more than 10

2 days after the date on which the notification is

3 issued; and

4 (B) direct that person to delete, imme5 diately, the e-mail address of any recipient or

6 recipient’s child named in the notification from

7 all of that person’s e-mail directories or mailing

8 lists (except for the purpose of complying with

9 the notification); and

10 (C) prohibit that person from transferring,

11 with or without consideration, or otherwise

12 making available, to any other person a mailing

13 list that contains the e-mail address of any re14 cipient or recipient’s child named in the notifi15 cation (except for the purpose of complying

16 with the notification).

17 (b) ENFORCEMENT OF NOTIFICATION TERMS.—

18 (1) NOTICE.—If the Commission finds that a

19 person has failed to comply with the terms of a noti20 fication issued under subsection (a), the Commission

21 shall serve a complaint, by registered or certified

22 mail, on that person—

23 (A) setting forth the Commission’s finding

24 and the reasons therefore; and
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1 (B) requiring that person to respond in

2 writing to the Commission within 15 days after

3 the date on which the complaint was served set4 ting forth any defense, in fact or in law, to the

5 Commission’s finding.

6 (2) HEARING AND ORDER.—If the Commission,

7 after an opportunity for a hearing on the record, de8 termines that the person upon whom the complaint

9 was served violated the terms of the notification, the

10 Commission shall issue an order directing that per11 son to comply with the terms of the notification.

12 (c) ENFORCEMENT BY COURT ORDER.—

13 (1) IN GENERAL.—Any district court of the

14 United States within the jurisdiction of which an e15 mail transmission is sent or received in violation of

16 a notification given under or the regulations pre17 scribed under section 4 shall have jurisdiction, upon

18 application by the Attorney General, to issue an

19 order commanding compliance with such notice.

20 Failure to observe such order may be punishable by

21 the court as contempt thereof.

22 (2) REMEDY NOT EXCLUSIVE.—The remedy

23 provided by paragraph (1) is in addition to any en24 forcement by the Commission under section 9.
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1 SEC. 8. ENFORCEMENT OF ORDERS.

2 (a) IN GENERAL.—Except as otherwise provided in

3 this Act, this Act shall be enforced by the Commission in

4 the same manner as a trade regulation of the Commission.

5 (b) ACTIONS BY THE COMMISSION.—The Commis6 sion shall prevent any person from violating this Act in

7 the same manner, by the same means, and with the same

8 jurisdiction, powers, and duties as though all applicable

9 terms and provisions of the Federal Trade Commission

10 Act (15 U.S.C. 41 et seq.) were incorporated into and

11 made a part of this Act. Any entity that violates any provi12 sion of that title is subject to the penalties and entitled

13 to the privileges and immunities provided in the Federal

14 Trade Commission Act in the same manner, by the same

15 means, and with the same jurisdiction, power, and duties

16 as though all applicable terms and provisions of the Fed17 eral Trade Commission Act were incorporated into and

18 made a part of that title.

19 SEC. 9. REMEDIES AVAILABLE TO ISPs.

20 (a) IN GENERAL.—An ISP adversely affected by a

21 violation of section 4 may bring a civil action in any dis22 trict court of the United States with jurisdiction over the

23 defendant—

24 (1) to enjoin further violation of that section by

25 the defendant;
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1 (2) to recover actual damages incurred by the

2 ISP as a result of that violation; and

3 (3) to recover, in addition to such actual dam4 ages, an amount equal to the greater of—

5 (A) $1 for each unsolicited bulk commer6 cial e-mail message transmitted in violation of

7 section 4 that caused the ISP to suffer harm;

8 or

9 (B) $50,000 for each day on which the de10 fendant committed the violation that caused the

11 ISP to suffer harm.

12 (b) WILLFUL VIOLATION.—If the court finds that the

13 defendant committed the violation willfully and knowingly,

14 the court may increase the amount recoverable under sub15 section (a)(3) threefold.

16 (c) COURT COSTS; ATTORNEYS FEES.—The court, in

17 any action brought under subsection (a), may award court

18 costs, including the cost of service of process, expert wit19 ness fees, and reasonable attorneys’ fees to the prevailing

20 party.

21 (d) PROTECTION OF TRADE SECRETS.—At the re22 quest of any party to an action brought under subsection

23 (a), the court may issue appropriate protective orders and

24 conduct proceedings in such a way as to protect the se25 crecy and security of any computer, computer network,
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1 computer data, computer program, and computer software

2 involved in the action to the extent necessary—

3 (1) to protect the trade secrets of any party;

4 and

5 (2) to prevent the possible recurrence of a viola6 tion.

7 SEC. 10. ENFORCEMENT BY STATES.

8 (a) IN GENERAL.—

9 (1) CIVIL ACTIONS.—In any case in which the

10 attorney general of a State has reason to believe

11 that an interest of the residents of that State has

12 been or is threatened or adversely affected by the

13 engagement of any person in a practice that violates

14 section 4, the State, as parens patriae, may bring a

15 civil action on behalf of the residents of the State in

16 a district court of the United States of appropriate

17 jurisdiction to—

18 (A) enjoin that practice;

19 (B) enforce compliance with the rule;

20 (C) obtain damage, restitution, or other

21 compensation on behalf of residents of the

22 State; or

23 (D) obtain such other relief as the court

24 may consider to be appropriate.

25 (2) NOTICE.—
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1 (A) IN GENERAL.—Before filing an action

2 under paragraph (1), the attorney general of

3 the State involved shall provide to the

4 Commission—

5 (i) written notice of that action; and

6 (ii) a copy of the complaint for that

7 action.

8 (B) EXEMPTION.—

9 (i) IN GENERAL.—Subparagraph (A)

10 shall not apply with respect to the filing of

11 an action by an attorney general of a State

12 under this subsection, if the attorney gen13 eral determines that it is not feasible to

14 provide the notice described in that sub15 paragraph before the filing of the action.

16 (ii) NOTIFICATION.—In an action de17 scribed in clause (i), the attorney general

18 of a State shall provide notice and a copy

19 of the complaint to the Commission at the

20 same time as the attorney general files the

21 action.

22 (b) INTERVENTION.—

23 (1) IN GENERAL.—On receiving notice under

24 subsection (a)(2), the Commission shall have the
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1 right to intervene in the action that is the subject

2 of the notice.

3 (2) EFFECT OF INTERVENTION.—If the Com4 mission intervenes in an action under subsection (a),

5 it shall have the right—

6 (A) to be heard with respect to any matter

7 that arises in that action; and

8 (B) to file a petition for appeal.

9 (c) CONSTRUCTION.—For purposes of bringing any

10 civil action under subsection (a), nothing in this Act shall

11 be construed to prevent an attorney general of a State

12 from exercising the powers conferred on the attorney gen13 eral by the laws of that State to—

14 (1) conduct investigations;

15 (2) administer oaths or affirmations; or

16 (3) compel the attendance of witnesses or the

17 production of documentary and other evidence.

18 (d) VENUE; SERVICE OF PROCESS.—

19 (1) VENUE.—Any action brought under sub20 section (a) may be brought in the district court of

21 the United States that meets applicable require22 ments relating to venue under section 1391 of title

23 28, United States Code.
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1 (2) SERVICE OF PROCESS.—In an action

2 brought under subsection (a), process may be served

3 in any district in which the defendant—

4 (A) is an inhabitant; or

5 (B) may be found.

6 SEC. 11. EFFECT ON OTHER LAWS.

7 (a) NO EFFECT ON CRIMINAL LAW.—Nothing in this

8 Act shall be construed to impair the enforcement of sec9 tion 223 or 231 of the Communications Act of 1934, chap10 ter 71 (relating to obscenity) or 110 (relating to sexual

11 exploitation of children) of title 18, United States Code,

12 or any other Federal criminal statute.

13 (b) STATE LAW.—

14 (1) IN GENERAL.—No State or political subdivi15 sion of a State may impose civil liability for any

16 commercial activity or other act in interstate or for17 eign commerce in violation of section 4 that is incon18 sistent with the treatment of that activity or act

19 under this Act.

20 (2) EXCEPTION.—Paragraph (1) does not

21 preempt—

22 (A) any civil remedy available under State

23 or local trespass law; or

24 (B) any Federal, State, or local criminal

25 law, or any civil remedy available under such
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1 law, relating to acts of computer fraud or abuse

2 arising from the unauthorized transmission of

3 unsolicited commercial e-mail messages.

4 SEC. 12. COMMISSION STUDY INTO EFFECTS OF UNSOLIC5 ITED BULK COMMERCIAL ELECTRONIC MAIL.

6 Not later than 18 months after the date of enactment

7 of this Act, the Commission shall submit to Congress a

8 report on—

9 (1) the effectiveness of this Act in preventing or

10 reducing the volume of unsolicited bulk commercial

11 e-mail;

12 (2) enforcement actions taken under this Act;

13 and

14 (3) the need, if any, for Congress to modify the

15 provisions of this Act.

16 SEC. 13. DEFINITIONS.

17 In this Act:

18 (1) CHILD.—The term ‘‘child’’ means an indi19 vidual under the age of 13.

20 (2) COMMISSION.—The term ‘‘Commission’’

21 means the Federal Trade Commission.

22 (3) DOMAIN NAME.—The term ‘‘domain name’’

23 means an alphanumeric designation which is reg24 istered with or assigned by a domain name registrar,

25 domain name registry, or other domain name reg-
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1 istration authority as part of an electronic address

2 on the Internet.

3 (4) E-MAIL ADDRESS.—

4 (A) IN GENERAL.—The term ‘‘e-mail ad5 dress’’ means a destination (commonly ex6 pressed as a string of characters) to which e7 mail can be sent or delivered.

8 (B) INCLUSION.—In the case of the Inter9 net, the term ‘‘e-mail address’’ may include an

10 e-mail address consisting of a user name or

11 mailbox (commonly referred to as the ‘‘local

12 part’’) and a reference to an Internet domain

13 (commonly referred to as the ‘‘domain part’’).

14 (5) INTERNET.—The term ‘‘Internet’’ means

15 collectively the myriad of computer and tele16 communications facilities, including equipment and

17 operating software, which comprise the inter18 connected world-wide network of networks that em19 ploy the Transmission Control Protocol/Internet

20 Protocol, or any predecessor or successor protocols

21 to such protocol, to communicate information of all

22 kinds by wire or radio.

23 (6) ISP.—The term ‘‘ISP’’ means a service

24 that enables users to access content, information, e25 mail, or other services offered over the Internet and
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1 may also include access to proprietary content, infor2 mation, and other services as part of a package of

3 services offered to consumers. Such term does not

4 include telecommunications services.

5 (7) SENDER.—The term ‘‘sender’’ when used

6 with respect to an e-mail message—

7 (A) means the person who initiated the

8 transmission of such message, or caused the

9 initiation of the transmission of that message;

10 but

11 (B) does not include—

12 (i) an ISP whose role is limited to

13 handling, transmission, or retransmission

14 of that message; or

15 (ii) any other person affiliated with

16 the person who initiated or caused the

17 transmission.

18 (8) PRE-EXISTING BUSINESS RELATIONSHIP.—

19 The term ‘‘pre-existing business relationship’’ means

20 that, before the message was transmitted—

21 (A) the sender and the recipient had a

22 business relationship within the preceding 60

23 months;

24 (B) the recipient requested information

25 contained in the message; or
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1 (C) the recipient was given an opportunity,

2 by the sender, to request that the sender not

3 transmit messages to the recipient and has not

4 made such a request.

5 (9) RECIPIENT.—The term ‘‘recipient’’ when

6 used with respect to an e-mail message means any

7 addressee of that message.

8 (10) COMMERCIAL E-MAIL MESSAGE.—The

9 term ‘‘commercial e-mail message’’ means an e-mail

10 message the primary purpose of which is to propose

11 a commercial transaction or to advertise a commer12 cial product or service. An e-mail message shall not

13 be considered to be a commercial e-mail message

14 solely because it includes a reference to a commer15 cial entity.

16 (11) UNSOLICITED COMMERCIAL E-MAIL MES17 SAGE.—The term ‘‘unsolicited commercial e-mail

18 message’’ means any commercial e-mail message

19 sent with the intent that the message be received by

20 a recipient with whom the sender does not have a

21 pre-existing business or personal relationship.

22 (12) UNSOLICITED BULK COMMERCIAL E-MAIL

23 MESSAGE.—The term ‘‘unsolicited bulk commercial

24 e-mail message’’ means at least 50 substantially

25 identical unsolicited commercial e-mail messages
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1 whether sent simultaneously, in packets of less than

2 50, or individually.

3 SEC. 14. EFFECTIVE DATE.

4 This Act shall take effect 90 days after the date of

5 enactment.

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