IIB
106TH CONGRESS
2D SESSION
H. R. 3113
IN THE SENATE OF THE UNITED STATES
JULY 19, 2000
Received, read twice and referred to the Committee on Commerce, Science,
and Transportation
AN ACT
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,
HR 3113 RFS
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Unsolicited Commer-
cial Electronic Mail Act of 2000’’.
SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.
(a) FINDINGS.—The Congress finds the following:
(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
HR 3113 RFS
spent accessing, reviewing, and discarding such mail,
or for both.
(5) Unsolicited commercial electronic mail may
impose significant monetary costs on Internet access
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 fur-
ther investment. The sending of such mail is increas-
ingly and negatively affecting the quality of service
provided to customers of Internet access service, and
shifting costs from the sender of the advertisement
to the Internet access service.
(6) While some senders of unsolicited commer-
cial electronic mail messages provide simple and reli-
able ways for recipients to reject (or ‘‘opt-out’’ of)
receipt of unsolicited commercial electronic mail
from such senders in the future, other senders pro-
vide no such ‘‘opt-out’’ mechanism, or refuse to
honor the requests of recipients not to receive elec-
tronic mail from such senders in the future, or both.
(7) An increasing number of senders of unsolic-
ited commercial electronic mail purposefully disguise
the source of such mail so as to prevent recipients
from responding to such mail quickly and easily.
HR 3113 RFS
(8) Many senders of unsolicited commercial
electronic mail collect or harvest electronic mail ad-
dresses 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 ad-
dresses are collected.
(9) Because recipients of unsolicited commercial
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;
(2) Internet service providers should not be
compelled to bear the costs of unsolicited commercial
electronic mail without compensation from the send-
er; and
HR 3113 RFS
(3) recipients of unsolicited commercial elec-
tronic mail have a right to decline to receive or have
their children receive unsolicited commercial elec-
tronic mail.
SEC. 3. 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) COMMERCIAL
ELECTRONIC
MAIL
MES-
SAGE.—The term ‘‘commercial electronic mail mes-
sage’’ means any electronic mail message that pri-
marily advertises or promotes the commercial avail-
ability of a product or service for profit or invites
the recipient to view content on an Internet web site
that is operated for a commercial purpose. An elec-
tronic mail message shall not be considered to be a
commercial electronic mail message solely because
such message includes a reference to a commercial
entity that serves to identify the initiator.
(3) COMMISSION.—The term ‘‘Commission’’
means the Federal Trade Commission.
HR 3113 RFS
(4) DOMAIN NAME.—The term ‘‘domain name’’
means any alphanumeric designation which is reg-
istered with or assigned by any domain name reg-
istrar, domain name registry, or other domain name
registration authority as part of an electronic ad-
dress on the Internet.
(5) 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’’).
(6) INTERNET.—The term ‘‘Internet’’ has the
meaning given that term in section 231(e)(3) of the
Communications Act of 1934 (47 U.S.C. 231(e)(3)).
(7) INTERNET
ACCESS
SERVICE.—The term
‘‘Internet access service’’ has the meaning given that
term in section 231(e)(4) of the Communications
Act of 1934 (47 U.S.C. 231(e)(4)).
HR 3113 RFS
(8) INITIATE.—The term ‘‘initiate’’, when used
with respect to a commercial electronic mail mes-
sage, means to originate such message or to procure
the transmission of such message.
(9) INITIATOR.—The term ‘‘initiator’’, when
used with respect to a commercial electronic mail
message, means the person who initiates such mes-
sage. Such term does not include a provider of an
Internet access service whose role with respect to the
message is limited to handling, transmitting, re-
transmitting, or relaying the message.
(10) 
PRE-EXISTING
BUSINESS
RELATION-
SHIP.—The term ‘‘pre-existing business relation-
ship’’ means, when used with respect to the initiator
and recipient of a commercial electronic mail mes-
sage, that either of the following circumstances exist:
(A) PREVIOUS BUSINESS TRANSACTION.—
(i) Within the 5-year period ending
upon receipt of such message, there has
been a business transaction between the
initiator and the recipient (including a
transaction involving the provision, free of
charge, of information requested by the re-
cipient, of goods, or of services); and
HR 3113 RFS
(ii) the recipient was, at the time of
such transaction or thereafter, provided a
clear and conspicuous notice of an oppor-
tunity not to receive further messages from
the initiator and has not exercised such op-
portunity.
(B) OPT IN.—The recipient has given the
initiator permission to initiate commercial elec-
tronic mail messages to the electronic mail ad-
dress of the recipient and has not subsequently
revoked such permission.
(11) RECIPIENT.—The term ‘‘recipient’’, when
used with respect to a commercial electronic mail
message, means the addressee of such message.
(12) UNSOLICITED
COMMERCIAL
ELECTRONIC
MAIL MESSAGE.—The term ‘‘unsolicited commercial
electronic mail message’’ means any commercial
electronic mail message that is sent by the initiator
to a recipient with whom the initiator does not have
a pre-existing business relationship.
SEC. 4. CRIMINAL PENALTY FOR UNSOLICITED COMMER-
CIAL ELECTRONIC MAIL CONTAINING FRAUD-
ULENT ROUTING INFORMATION.
Section 1030 of title 18, United States Code, is
amended—
HR 3113 RFS
(1) in subsection (a)(5)—
(A) in subparagraph (B), by striking ‘‘or’’
at the end;
(B) in subparagraph (C), by inserting ‘‘or’’
after the semicolon at the end; and
(C) by adding at the end the following new
subparagraph:
‘‘(D) intentionally initiates the transmission of
any unsolicited commercial electronic mail message
to a protected computer in the United States with
knowledge that any domain name, header informa-
tion, date or time stamp, originating electronic mail
address, or other information identifying the
initiator or the routing of such message, that is con-
tained in or accompanies such message, is false or
inaccurate;’’;
(2) in subsection (c)(2)(A)—
(A) by inserting ‘‘(i)’’ after ‘‘in the case
of’’; and
(B) by inserting before ‘‘; and’’ the fol-
lowing: ‘‘, or (ii) an offense under subsection
(a)(5)(D) of this section’’; and
(3) in subsection (e)—
(A) by striking ‘‘and’’ at the end of para-
graph (8);
HR 3113 RFS
(B) by striking the period at the end of
paragraph (9) and inserting a semicolon; and
(C) by adding at the end the following new
paragraph:
‘‘(10) the terms ‘initiate’, ‘initiator’, ‘unsolicited
commercial electronic mail message’, and ‘domain
name’ have the meanings given such terms in section
3 of the Unsolicited Commercial Electronic Mail Act
of 2000.’’.
SEC. 5. OTHER PROTECTIONS AGAINST UNSOLICITED COM-
MERCIAL ELECTRONIC MAIL.
(a) REQUIREMENTS FOR TRANSMISSION OF MES-
SAGES.—
(1) INCLUSION OF RETURN ADDRESS IN COM-
MERCIAL ELECTRONIC MAIL.—It shall be unlawful
for any person to initiate the transmission of a com-
mercial electronic mail message to any person within
the United States unless such message contains a
valid electronic mail address, conspicuously dis-
played, to which a recipient may send a reply to the
initiator to indicate a desire not to receive any fur-
ther messages.
(2) PROHIBITION OF TRANSMISSION OF UNSO-
LICITED COMMERCIAL ELECTRONIC MAIL AFTER OB-
JECTION.—If a recipient makes a request to a per-
HR 3113 RFS
son to be removed from all distribution lists under
the control of such person, it shall be unlawful for
such person to initiate the transmission of an unso-
licited commercial electronic mail message to such a
recipient within the United States after the expira-
tion, after receipt of such request, of a reasonable
period of time for removal from such lists. Such a
request shall be deemed to terminate a pre-existing
business relationship for purposes of determining
whether subsequent messages are unsolicited com-
mercial electronic mail messages.
(3) INCLUSION OF IDENTIFIER AND OPT-OUT IN
UNSOLICITED COMMERCIAL ELECTRONIC MAIL.—It
shall be unlawful for any person to initiate the
transmission of any unsolicited commercial electronic
mail message to any person within the United States
unless the message provides, in a manner that is
clear and conspicuous to the recipient—
(A) identification that the message is an
unsolicited commercial electronic mail message;
and
(B) notice of the opportunity under para-
graph (2) not to receive further unsolicited
commercial electronic mail messages from the
initiator.
HR 3113 RFS
(b) ENFORCEMENT OF POLICIES BY INTERNET AC-
CESS SERVICE PROVIDERS.—
(1) PROHIBITION OF TRANSMISSIONS IN VIOLA-
TION OF POSTED POLICY.—It shall be unlawful for
any person to initiate the transmission of an unsolic-
ited commercial electronic mail message to any per-
son within the United States in violation of a policy
governing the use of the equipment of a provider of
Internet access service for transmission of unsolic-
ited commercial electronic mail messages that meets
the requirements of paragraph (2).
(2) REQUIREMENTS
FOR
ENFORCEABILITY.—
The requirements under this paragraph for a policy
regarding unsolicited commercial electronic mail
messages are as follows:
(A) CLARITY.—The policy shall explicitly
provide that compliance with a rule or set of
rules is a condition of use of the equipment of
a provider of Internet access service to deliver
commercial electronic mail messages.
(B) PUBLICLY AVAILABILITY.—The policy
shall be publicly available by at least one of the
following methods:
(i) WEB
POSTING.—The policy is
clearly and conspicuously posted on a
HR 3113 RFS
World Wide Web site of the provider of
Internet access service, which has an Inter-
net domain name that is identical to the
Internet domain name of the electronic
mail address to which the rule or set of
rules applies.
(ii) NOTIFICATION
IN
COMPLIANCE
WITH TECHNOLOGICAL STANDARD.—Such
policy is made publicly available by the
provider of Internet access service in ac-
cordance with a technological standard
adopted by an appropriate Internet stand-
ards setting body (such as the Internet
Engineering Task Force) and recognized
by the Commission by rule as a fair stand-
ard.
(C) INTERNAL OPT-OUT LIST.—If the pol-
icy of a provider of Internet access service re-
quires compensation specifically for the trans-
mission of unsolicited commercial electronic
mail messages into its system, the provider
shall provide an option to its subscribers not to
receive any unsolicited commercial electronic
mail messages, except that such option is not
required for any subscriber who has agreed to
HR 3113 RFS
receive unsolicited commercial electronic mail
messages in exchange for discounted or free
Internet access service.
(3) OTHER
ENFORCEMENT.—Nothing in this
Act shall be construed to prevent or limit, in any
way, a provider of Internet access service from en-
forcing, pursuant to any remedy available under any
other provision of Federal, State, or local criminal or
civil law, a policy regarding unsolicited commercial
electronic mail messages.
(c) PROTECTION
OF INTERNET ACCESS SERVICE
PROVIDERS.—
(1) GOOD FAITH EFFORTS TO BLOCK TRANS-
MISSIONS.—A provider of Internet access service
shall not be liable, under any Federal, State, or local
civil or criminal law, for any action it takes in good
faith to block the transmission or receipt of unsolic-
ited commercial electronic mail messages.
(2) INNOCENT RETRANSMISSION.—A provider
of Internet access service the facilities of which are
used only to handle, transmit, retransmit, or relay
an unsolicited commercial electronic mail message
transmitted in violation of subsection (a) shall not
be liable for any harm resulting from the trans-
mission or receipt of such message unless such pro-
HR 3113 RFS
vider permits the transmission or retransmission of
such message with actual knowledge that the trans-
mission is prohibited by subsection (a) or subsection
(b)(1).
SEC. 6. ENFORCEMENT.
(a) GOVERNMENTAL ORDER.—
(1) NOTIFICATION OF ALLEGED VIOLATION.—
The Commission shall send a notification of alleged
violation to any person who violates section 5 if—
(A) a recipient or a provider of Internet
access service notifies the Commission, in such
form and manner as the Commission shall de-
termine, that a transmission has been received
in violation of section 5; or
(B) the Commission has other reason to
believe that such person has violated or is vio-
lating section 5.
(2) TERMS OF NOTIFICATION.—A notification
of alleged violation shall—
(A) identify the violation for which the no-
tification was issued;
(B) direct the initiator to refrain from fur-
ther violations of section 5;
(C) expressly prohibit the initiator (and
the agents or assigns of the initiator) from fur-
HR 3113 RFS
ther initiating unsolicited commercial electronic
mail messages in violation of section 5 to the
designated recipients or providers of Internet
access service, effective on the third day (ex-
cluding Saturdays, Sundays, and legal public
holidays) after receipt of the notification; and
(D) direct the initiator (and the agents or
assigns of the initiator) to delete immediately
the names and electronic mail addresses of the
designated recipients or providers from all mail-
ing lists owned or controlled by the initiator (or
such agents or assigns) and prohibit the
initiator (and such agents or assigns) from the
sale, lease, exchange, license, or other trans-
action involving mailing lists bearing the names
and electronic mail addresses of the designated
recipients or providers.
(3) COVERAGE OF MINOR CHILDREN BY NOTIFI-
CATION.—Upon request of a recipient of an elec-
tronic mail message transmitted in violation of sec-
tion 5, the Commission shall include in the notifica-
tion of alleged violation the names and electronic
mail addresses of any child of the recipient.
(4) ENFORCEMENT OF NOTIFICATION TERMS.—
HR 3113 RFS
(A) COMPLAINT.—If the Commission be-
lieves that the initiator (or the agents or as-
signs of the initiator) has failed to comply with
the terms of a notification issued under this
subsection, the Commission shall serve upon the
initiator (or such agents or assigns), by reg-
istered or certified mail, a complaint stating the
reasons for its belief and request that any re-
sponse thereto be filed in writing with the Com-
mission within 15 days after the date of such
service.
(B) HEARING AND ORDER.—If the Com-
mission, after an opportunity for a hearing on
the record, determines that the person upon
whom the complaint was served violated the
terms of the notification, the Commission shall
issue an order directing that person to comply
with the terms of the notification.
(C) PRESUMPTION.—For purposes of a de-
termination under subparagraph (B), receipt of
any transmission in violation of a notification of
alleged violation 30 days (excluding Saturdays,
Sundays, and legal public holidays) or more
after the effective date of the notification shall
HR 3113 RFS
create a rebuttable presumption that such
transmission was sent after such effective date.
(5) ENFORCEMENT
BY
COURT
ORDER.—Any
district court of the United States within the juris-
diction of which any transmission is sent or received
in violation of a notification given under this sub-
section shall have jurisdiction, upon application by
the Attorney General, to issue an order commanding
compliance with such notification. Failure to observe
such order may be punishable by the court as con-
tempt thereof.
(b) PRIVATE RIGHT OF ACTION.—
(1) ACTIONS AUTHORIZED.—A recipient or a
provider of Internet access service may, if otherwise
permitted by the laws or rules of court of a State,
bring in an appropriate court of that State, or may
bring in an appropriate Federal court if such laws
or rules do not so permit, either or both of the fol-
lowing actions:
(A) An action based on a violation of sec-
tion 5 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—
HR 3113 RFS
(i) the amount of such actual mone-
tary loss; or
(ii) $500 for each such violation, not
to exceed a total of $50,000.
(2) ADDITIONAL REMEDIES.—If the court finds
that the defendant willfully, knowingly, or repeatedly
violated section 5, 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 paragraph (1).
(3) ATTORNEY FEES.—In any such action, the
court may, in its discretion, require an undertaking
for the payment of the costs of such action, and as-
sess reasonable costs, including reasonable attorneys’
fees, against any party.
(4) PROTECTION OF TRADE SECRETS.—At the
request of any party to an action brought pursuant
to this subsection or any other participant in such
an action, the court may, in its discretion, issue pro-
tective orders and conduct legal proceedings in such
a way as to protect the secrecy and security of the
computer, computer network, computer data, com-
puter program, and computer software involved in
order to prevent possible recurrence of the same or
HR 3113 RFS
a similar act by another person and to protect any
trade secrets of any such party or participant.
SEC. 7. EFFECT ON OTHER LAWS.
(a) FEDERAL LAW.—Nothing in this Act shall be
construed to impair the enforcement of section 223 or 231
of the Communications Act of 1934, chapter 71 (relating
to obscenity) or 110 (relating to sexual exploitation of chil-
dren) of title 18, United States Code, or any other Federal
criminal statute.
(b) STATE LAW.—No State or local government may
impose any civil liability for commercial activities or ac-
tions in interstate or foreign commerce in connection with
an activity or action described in section 5 of this Act that
is inconsistent with the treatment of such activities or ac-
tions under this Act, except that this Act shall not pre-
empt any civil remedy under State trespass or contract
law or under any provision of Federal, State, or local
criminal law or any civil remedy available under such law
that relates to acts of computer fraud or abuse arising
from the unauthorized transmission of unsolicited com-
mercial electronic mail messages.
SEC. 8. STUDY OF EFFECTS OF UNSOLICITED COMMERCIAL
ELECTRONIC MAIL.
Not later than 18 months after the date of the enact-
ment of this Act, the Federal Trade Commission shall sub-
HR 3113 RFS
mit a report to the Congress that provides a detailed anal-
ysis of the effectiveness and enforcement of the provisions
of this Act and the need (if any) for the Congress to mod-
ify such provisions.
SEC. 9 SEPARABILITY.
If any provision of this Act or the application thereof
to any person or circumstance is held invalid, the remain-
der of this Act and the application of such provision to
other persons or circumstances shall not be affected.
SEC. 10. EFFECTIVE DATE.
The provisions of this Act shall take effect 90 days
after the date of the enactment of this Act.
Passed the House of Representatives July 18, 2000.
Attest:
Jeff Trandahl,
Clerk.