I
106TH CONGRESS
1ST SESSION
H. R. 3113
To protect individuals, families, and Internet service providers from unsolicited
and unwanted electronic mail.
IN THE HOUSE OF REPRESENTATIVES
OCTOBER 20, 1999
Mrs. WILSON (for herself, Mr. GREEN of Texas, Mr. BAKER, Mr. BARRETT
of Wisconsin, Mr. BLUNT, Mr. BOUCHER, Mrs. CUBIN, Mr. DEAL of
Georgia, Mr. EHRLICH, Mr. ENGLISH, Mr. GILLMOR, Mr. GORDON, Mr.
GREENWOOD, Mr. HASTINGS of Washington, Mr. KLINK, Mr. LUTHER,
Ms. MCCARTHY of Missouri, Mr. MCINTOSH, Mr. OXLEY, Mr. ROGAN,
Mr. SANDLIN, Mr. SAWYER, Mr. SHIMKUS, Mr. STEARNS, Mr. STRICK-
LAND, and Mr. STUPAK) introduced the following bill; which was referred
to the Committee on Commerce
A BILL
To protect individuals, families, and Internet service
providers from unsolicited and unwanted electronic mail.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Unsolicited Electronic
Mail Act of 1999’’.
SEC. 2. DEFINITIONS.
In this Act:
(1) CHILDREN.—The term ‘‘children’’ includes
natural children, stepchildren, adopted children, and
children who are wards of or in custody of the par-
ent, who have not attained the age of 18 and who
reside with the parent or are under his or her care,
custody, or supervision.
(2) ELECTRONIC MAIL ADDRESS.—
(A) IN
GENERAL.—The term ‘‘electronic
mail address’’ means a destination (commonly
expressed as a string of characters) to which
electronic mail can be sent or delivered.
(B) INCLUSION.—In the case of the Inter-
net, the term ‘‘electronic mail address’’ may in-
clude an electronic mail address consisting of a
user name or mailbox (commonly referred to as
the ‘‘local part’’) and a reference to an Internet
domain (commonly referred to as the ‘‘domain
part’’).
(3) INTERACTIVE
COMPUTER
SERVICE.—The
term ‘‘interactive computer service’’ has the meaning
given that term in section 230(e)(2) of the Commu-
nications Act of 1934 (47 U.S.C. 230(e)(2)).
(4) INITIATOR.—The term ‘‘initiator’’ when
used with respect to an electronic mail message
means the person who initiated the transmission of
such message, or caused the initiation of the trans-
mission of such message.
(5) INTERNET.—The term ‘‘Internet’’ has the
meaning given that term in section 230(e)(1) of the
Communications Act of 1934 (47 U.S.C. 230(e)(1)).
(6) INTERNET
DOMAIN.—The term ‘‘Internet
domain’’ refers to a specific computer system (com-
monly referred to as a ‘‘host’’) or collection of com-
puter systems attached to or able to be referenced
from the Internet which are assigned a specific ref-
erence point on the Internet (commonly referred to
as the ‘‘Internet domain name’’) and registered with
an organization that registers Internet domains.
(7) UNSOLICITED
COMMERCIAL
ELECTRONIC
MAIL MESSAGE.—The term ‘‘unsolicited commercial
electronic mail message’’ means any electronic mail
message that advertises a product or service for
profit or for a business purpose that is sent to a re-
cipient with whom the initiator does not have an ex-
isting business relationship.
(8) UNSOLICITED
PANDERING
ELECTRONIC
MAIL MESSAGE.—The term ‘‘unsolicited pandering
electronic mail message’’ means any electronic mail
message which the recipient, in his or her sole dis-
cretion, believes to be erotically arousing or sexually
provocative that is sent to a recipient with whom the
initiator does not have an existing consensual rela-
tionship or has been sent by the initiator without the
express consent of the recipient.
SEC. 3. FINDINGS; POLICY.
(a) FINDINGS.—The Congress finds that:
(1) There is a right of free speech on the Inter-
net.
(2) The Internet has increasingly become a crit-
ical mode of global communication and now presents
unprecedented opportunities for the development and
growth of global commerce and an integrated world-
wide economy. In order for global commerce on the
Internet to reach its full potential, individuals and
entities using the Internet and other online services
should be prevented from engaging in activities that
prevent other users and Internet service providers
from having a reasonably predictable, efficient, and
economical online experience.
(3) Unsolicited commercial electronic mail can
be an important mechanism through which busi-
nesses advertise and attract customers in the online
environment.
(4) The receipt of unsolicited commercial elec-
tronic mail may result in costs to recipients who
cannot refuse to accept such mail and who incur
costs for the storage of such mail, or for the time
spent accessing, reviewing, and discarding such mail,
or for both.
(5) Unsolicited commercial electronic mail may
impose significant monetary costs on interactive
computer services, businesses, and educational and
nonprofit institutions that carry and receive such
mail, as there is a finite volume of mail that such
providers, businesses, and institutions can handle
without further investment. The sending of such
mail is increasingly and negatively affecting the
quality of service provided to customers of inter-
active computer service, and shifting costs from the
sender of the advertisement to the interactive com-
puter service.
(6) While some senders of unsolicited commer-
cial electronic mail provide simple and reliable ways
for recipients to reject (or ‘‘opt-out’’ of) receipt of
unsolicited commercial electronic mail from such
senders in the future, other senders provide no such
‘‘opt-out’’ mechanism, or refuse to honor the re-
quests of recipients not to receive electronic mail
from such senders in the future, or both.
(7) An increasing number of senders of unsolic-
ited commercial electronic mail and unsolicited pan-
dering electronic mail purposefully disguise the
source of such mail so as to prevent recipients from
responding to such mail quickly and easily.
(8) Many senders of unsolicited commercial
electronic mail and unsolicited pandering electronic
mail collect or harvest electronic mail addresses of
potential recipients without the knowledge of those
recipients and in violation of the rules or terms of
service of the database from which such addresses
are collected.
(9) Because recipients of unsolicited commercial
electronic mail and unsolicited pandering electronic
mail are unable to avoid the receipt of such mail
through reasonable means, such mail may invade the
privacy of recipients.
(10) In legislating against certain abuses on the
Internet, Congress should be very careful to avoid
infringing in any way upon constitutionally protected
rights, including the rights of assembly, free speech,
and privacy.
(b) CONGRESSIONAL DETERMINATION
OF PUBLIC
POLICY.—On the basis of the findings in subsection (a),
the Congress determines that—
(1) there is substantial government interest in
regulation of unsolicited commercial electronic mail
and unsolicited pandering electronic mail;
(2) interactive computer services should not be
compelled to bear the costs of unsolicited commercial
electronic mail and unsolicited pandering electronic
mail without compensation from the sender; and
(3) recipients of unsolicited commercial elec-
tronic mail and unsolicited pandering electronic mail
have a right to decline to receive or have their chil-
dren receive unsolicited commercial electronic mail
and unsolicited pandering electronic mail.
SEC. 4. PROTECTIONS AGAINST UNSOLICITED ELECTRONIC
MAIL.
(a) UNSOLICITED COMMERCIAL ELECTRONIC MAIL
OPT-OUT LIST.—
(1) SELF-LISTING; MAINTENANCE
OF
LIST.—
Any person, on his or her own behalf or on the be-
half of any of his or her children, may file with the
Federal Communication Commission a statement, in
such form and manner as the Federal Communica-
tion Commission may prescribe, that he or she de-
sires to receive no unsolicited commercial electronic
mail, unsolicited pandering electronic mail, or both.
The Federal Communication Commission, insofar as
practicable—
(A) shall maintain and keep current, or
shall by contract provide for the maintenance
and currency of, lists of the names and elec-
tronic mail addresses of persons filing such
statements; and
(B) shall (directly or by such contract)
make the lists (including portions thereof or
changes therein) available to any person, upon
such reasonable terms and conditions as the
Commission may prescribe, including the pay-
ment of such service charge as it determines to
be necessary to defray the cost of compiling and
maintaining the list and making it available in
accordance with this paragraph.
(2) TRANSMISSIONS TO LISTED PERSONS PRO-
HIBITED.—No person shall initiate the transmission
or cause to be initiated the transmission of any un-
solicited commercial electronic mail or any unsolic-
ited pandering electronic mail to any individual
whose name and electronic mail address has been on
such list for more than 30 days.
(3) OTHER
USES
OF
LIST
PROHIBITED.—No
person shall sell, lease, lend, exchange, or license the
use of, or, except for the purpose expressly author-
ized by this section, use any mailing list compiled in
whole or in part from the list maintained by the
Federal Communication Commission pursuant to
paragraph (1).
(b) PROTECTIONS AGAINST UNSOLICITED ELEC-
TRONIC MAIL.—
(1) RETURN ADDRESSES REQUIRED.—It shall
be unlawful for any person within the United States
to initiate the transmission of an unsolicited com-
mercial electronic mail message or an unsolicited
pandering electronic mail message unless such mes-
sage contains a reply electronic mail address, con-
spicuously displayed, to which a recipient may send
a reply to indicate a desire not to receive any further
messages.
(2) TRANSMISSIONS
AFTER
OBJECTION
SUB-
JECT TO ORDER.—Whoever, following a request by
a recipient to the initiator to be removed from all
distribution lists, directly or by any agent or assign,
initiates the transmission or causes to be initiated
the transmission of any unsolicited commercial elec-
tronic mail or unsolicited pandering electronic mail,
or who violates paragraph (1), shall be subject to an
order of the Federal Communication Commission to
refrain from further mailings of such materials to
designated addresses of the recipient.
(3) ISSUANCE
OF
ORDERS.—Upon receipt of
notice from a recipient that he or she has received
a transmission that is determined by the recipient to
violate paragraph (1) or (2), the Federal Commu-
nication Commission shall issue an order, if re-
quested by the recipient, to the initiator thereof di-
recting the initiator and his or her agents or assigns
to refrain from further transmissions to the named
recipient.
(4) COVERAGE
OF
MINOR
CHILDREN
BY
OR-
DERS.—Upon request of any recipient, the order of
the Federal Communication Commission shall in-
clude the names and electronic mail addresses of any
of the children of the recipient.
(5) PROHIBITIONS
CONTAINED
IN
ORDERS.—
The order of the Federal Communication Commis-
sion shall expressly prohibit the initiator and his
agents or assigns from making any further trans-
missions of unsolicited commercial electronic mail or
unsolicited pandering electronic mail (as applicable)
to the designated recipients, effective on the 30th
calendar day after receipt of the order. The order
shall also direct the initiator and his or her agents
or assigns to delete immediately the names and elec-
tronic mail addresses of the designated recipients
from all mailing lists owned or controlled by the
initiator or his or her agents or assigns and shall
prohibit the initiator and his or her agents or as-
signs from the sale, lease, exchange, license, or other
transaction involving mailing lists bearing the names
and electronic mail addresses of the designated re-
cipients.
SEC. 5. ENFORCEMENT.
(a) PRIVATE RIGHT OF ACTION.—
(1) ACTIONS AUTHORIZED.—A person may, if
otherwise permitted by the laws or rules of court of
a State, bring in an appropriate court of that State
either or both of the following actions:
(A) An action based on a violation of sec-
tion 4 or the regulations prescribed therein to
enjoin such violation.
(B) An action to recover for actual mone-
tary loss from such a violation in an amount
equal to the greatest of—
(i) the amount of such actual mone-
tary loss;
(ii) $500 for each such violation; or
(iii) $25,000 per day for each day
such violation continues.
(2) ADDITIONAL REMEDIES.—If the court finds
that the defendant willfully or knowingly violated an
order given under or the regulations prescribed
under section 4, the court may, in its discretion, in-
crease the amount of the award to an amount equal
to not more than three times the amount available
under paragraph (1).
(b) GOVERNMENTAL ORDER.—
(1) ENFORCEMENT OF ORDERS.—Whenever the
Federal Communication Commission believes that
the initiator or anyone acting on his behalf has vio-
lated or is violating an order given under or the reg-
ulations prescribed under section 4, it shall serve
upon the initiator, by registered or certified mail, a
complaint stating the reasons for its belief and re-
quest that any response thereto be filed in writing
with the Federal Communication Commission within
15 days after the date of such service. If the Federal
Communication Commission, after appropriate hear-
ing if requested by the initiator, and without a hear-
ing if such a hearing is not requested, thereafter de-
termines that the order given has been or is being
violated, it is authorized to request the Attorney
General to make application, and the Attorney Gen-
eral is authorized to make application, to a district
court of the United States for an order directing
compliance with such notice.
(2) PRESUMPTION.—Receipt of any trans-
mission in violation of an order under section 4 30
days or more after the effective date of the order
shall create a rebuttable presumption that such
transmission was sent after such effective date.
(3) REMEDIES.—Any district court of the
United States within the jurisdiction of which any
transmission shall have been sent or received in vio-
lation of an order given under or the regulations
prescribed under section 4 shall have jurisdiction,
upon application by the Attorney General, to issue
an order commanding compliance with such notice.
Failure to observe such order may be punishable by
the court as contempt thereof.
SEC. 6. INTERACTIVE COMPUTER SERVICE POLICIES RE-
GARDING UNSOLICITED COMMERCIAL ELEC-
TRONIC MAIL RESPECTED.
(a) INTERACTIVE COMPUTER SERVICE POLICIES
PERMITTED.—An interactive computer service is per-
mitted to establish and enforce policies that are non-
discriminatory on the basis of content regarding unsolic-
ited commercial electronic mail.
(b) UNCOMPENSATED
TRANSMISSION
NOT
RE-
QUIRED.—An interactive computer service may decline to
transmit unsolicited commercial electronic mail messages
to its subscribers without compensation from the sender
of the unsolicited commercial electronic mail.
(c) NOTICE OF VIOLATION REQUIRED.—Upon re-
ceipt of unsolicited electronic mail in violation of a pub-
licly-available policy in compliance with subsection (a), an
interactive computer service shall notify the violator of the
policy in writing and request compliance. Such notification
shall include the text of the policy or an appropriate ref-
erence to the publicly-available location of the policy.
(d) TRANSMISSIONS AFTER OBJECTION SUBJECT TO
ORDER.—Whoever, 14 days after the date of notification
prescribed in subsection (b), directly or by any agent or
assign, initiates the transmission or causes to be initiated
the transmission of any unsolicited commercial electronic
mail message in violation of a policy permitted by sub-
section (a) shall be subject to an order of the Federal
Communication Commission to refrain from further trans-
missions to the interactive computer service.
(e) ISSUANCE OF ORDERS.—Upon receipt of notice
from an interactive computer service that it has received
a transmission that is determined by the interactive com-
puter service to be in violation of a policy as described
in subsection (a), the Federal Communication Commission
shall issue an order, if requested by the interactive com-
puter service, to the initiator thereof, directing the
initiator and his or her agents or assigns to refrain from
further transmissions to the interactive computer service.
(f) PROHIBITIONS CONTAINED
IN ORDERS.—The
order of the Federal Communication Commission shall ex-
pressly prohibit the initiator and his agents or assigns
from making any further transmissions to the interactive
computer service, effective on the 30th calendar day after
receipt of the order. The order shall also direct the
initiator and his or her agents or assigns to delete imme-
diately the names and electronic mail addresses of any
designated recipients from all mailing lists owned or con-
trolled by the initiator or his or her agents or assigns and
shall prohibit the initiator and his or her agents or assigns
from the sale, lease, exchange, license, or other transaction
involving mailing lists bearing the names or electronic mail
addresses of the designated recipients.
(g) ENFORCEMENT.—
(1) PRIVATE RIGHT OF ACTION.—
(A) ACTIONS
AUTHORIZED.—An inter-
active computer service may, if otherwise per-
mitted by the laws or rules of court of a State,
bring in an appropriate court of that State ei-
ther or both of the following actions:
(i) An action based on a violation of
the order given under this section or the
regulations prescribed under this section to
enjoin such violation.
(ii) An action to recover for actual
monetary loss from such a violation in an
amount equal to the greatest of—
(I) the amount of such actual
monetary loss;
(II) $500 for each such violation;
or
(III) $25,000 per day for each
day such violation continues.
(B) ADDITIONAL REMEDIES.—If the court
finds that the defendant willfully or knowingly
violated the order given under or the regula-
tions prescribed under this subsection, the court
may, in its discretion, increase the amount of
the award to an amount equal to not more than
three times the amount available under sub-
paragraph (A).
(2) GOVERNMENTAL ORDER.—
(A) ENFORCEMENT
OF
ORDERS.—When-
ever the Federal Communication Commission
believes that the initiator or anyone acting on
his behalf has violated or is violating the order
given under this section, it shall serve upon the
initiator, by registered or certified mail, a com-
plaint stating the reasons for its belief and re-
quest that any response thereto be filed in writ-
ing with the Federal Communication Commis-
sion within 15 days after the date of such serv-
ice. If the Federal Communication Commission,
after appropriate hearing if requested by the
initiator, and without a hearing if such a hear-
ing is not requested, thereafter determines that
the order given has been or is being violated, it
is authorized to request the Attorney General to
make application, and the Attorney General is
authorized to make application, to a district
court of the United States for an order direct-
ing compliance with such notice.
(B) PRESUMPTION.—Receipt of any trans-
mission in violation of an order under this sec-
tion 30 days or more after the effective date of
the order shall create a rebuttable presumption
that such transmission was sent after such ef-
fective date.
(C) REMEDIES.—Any district court of the
United States within the jurisdiction of which
any transmission shall have been sent or re-
ceived in violation of the order provided for by
this section shall have jurisdiction, upon appli-
cation by the Attorney General, to issue an
order commanding compliance with such notice.
Failure to observe such order may be punish-
able by the court as contempt thereof.
SEC. 7. EFFECT ON OTHER LAWS.
(a) NO EFFECT ON CRIMINAL LAW.—Nothing in this
Act shall be construed to impair the enforcement of sec-
tion 223 or 231 of the Communications Act of 1934, chap-
ter 71 (relating to obscenity) or 110 (relating to sexual
exploitation of children) of title 18, United States Code,
or any other Federal criminal statute.
(b) STATE LAW.—This Act is in addition to and not
in lieu of any other provision of State law relating to the
transmission of electronic mail messages. Nothing in this
Act shall be construed to prevent any State from enacting
or enforcing any such State law.
SEC. 8. FEDERAL COMMUNICATION COMMISSION STUDY
INTO EFFECTS OF UNSOLICITED COMMER-
CIAL ELECTRONIC MAIL.
Not later than 18 months after the date of enactment
of this Act, the Federal Communication Commission shall
submit to Congress a report detailing the effectiveness of,
enforcement of, and the need, if any, for Congress to mod-
ify the provisions of this Act.
SEC. 9. EFFECTIVE DATE.
This provisions of this Act shall take effect 90 days
after the date of enactment of this Act.
Æ