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(A) it shall be unlawful for such person or
any affiliate of such person to initiate the trans-
mission of an unsolicited commercial electronic
mail message to such a recipient within the
United States after the expiration of a reason-
able period of time for removal from such lists;
(B) such person and affiliates (and the
agents or assigns of the person or affiliate) shall
delete or suppress the electronic mail addresses of
the recipient from all mailing lists owned or con-
trolled by such person or affiliate (or such agents
or assigns) within a reasonable period of time
for such deletion or suppression; and
(C) it shall be unlawful for such person or
affiliate (or such agents or assigns) to sell, lease,
exchange, license, or engage in any other trans-
action involving mailing lists bearing the elec-
tronic mail addresses of the recipient.
(3) INCLUSION
OF
IDENTIFIER, OPT-OUT, AND
PHYSICAL
ADDRESS
IN
UNSOLICITED
COMMERCIAL
ELECTRONIC MAIL.—It shall be unlawful for any per-
son to initiate the transmission of any unsolicited
commercial electronic mail message to any person
within the United States unless the message provides,
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in a manner that is clear and conspicuous to the
recipient—
(A) identification that the message is an
unsolicited commercial electronic mail message;
(B) notice of the opportunity under para-
graph (2) to decline to receive further unsolicited
commercial electronic mail messages from the
initiator or any affiliate of the initiator; and
(C) the physical mailing address of the
initiator.
(4) 
TREATMENT
OF
INTERNAL
OPT-OUT
LISTS.—If the policy of a provider of Internet access
service requires compensation specifically for the
transmission of unsolicited commercial electronic
mail messages into its system, it shall be unlawful for
the provider to fail to provide an option to its sub-
scribers not to receive any unsolicited commercial
electronic mail messages, except that such option shall
not be required for any subscriber who has agreed to
receive unsolicited commercial electronic mail mes-
sages in exchange for discounted or free Internet ac-
cess service.
(5) AFFIRMATIVE DEFENSE.—It shall be an af-
firmative defense in any action or proceeding brought
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for a violation of any paragraph of this subsection
that the violation was not intentional.
(b) CONDITIONS FOR ENFORCEMENT BY PROVIDERS OF
INTERNET ACCESS SERVICE.—
(1) AUTHORITY TO OPT OUT.—After the expira-
tion of a reasonable period of time for taking any ac-
tion necessary to comply with a request under sub-
paragraph (B) that begins upon the receipt of such a
request, it shall be unlawful for a person or any affil-
iate of such person to initiate the transmission of an
unsolicited commercial electronic mail message, to
any recipient within the United States, that uses the
equipment of a provider of Internet access service to
recipients of electronic mail messages for such trans-
mission, if such provider—
(A)(i) has in effect a policy that meets the
requirements under paragraph (2); or
(ii) has received a significant number of
complaints from its bona fide subscribers that
they have received unsolicited commercial elec-
tronic mail messages from such person; and
(B) makes a request to such person by
means of an electronic mail message not to use
the equipment of the provider for the trans-
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mission of any unsolicited commercial electronic
mail message.
(2) UCE POLICY.—A policy of a provider of
Internet access service to recipients meets the require-
ments under this paragraph only if—
(A) it is a policy regarding the use of the
equipment of the provider for the transmission of
unsolicited commercial electronic mail messages
that prohibits the transmission, using such
equipment, of all such messages;
(B) the provider of Internet access service is
making a good faith effort to block the trans-
mission of all unsolicited commercial electronic
mail messages that use the equipment of provider
for such transmission;
(C) the policy is made publicly available by
clear and conspicuous posting on a World Wide
Web site of the provider of Internet access serv-
ice, which has an Internet domain name that is
identical to the Internet domain name of the
electronic mail address to which the prohibition
referred to in subparagraph (A) applies; and
(D) the provider of Internet access service
informs each subscriber to such service of the pol-
icy.
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(c) RULE OF CONSTRUCTION.—Nothing in this Act
shall be construed—
(1) to prevent or limit, in any way, a provider
of Internet access service from adopting a policy re-
garding commercial or other electronic mail, includ-
ing a policy of declining to transmit certain types of
electronic mail messages, and from enforcing such
policy through technical means, through contract, or
pursuant to any remedy available under any other
provision of Federal, State, or local criminal or civil
law; or
(2) to render lawful any such policy that is un-
lawful under any other provision of law.
(d) PROTECTION OF INTERNET ACCESS SERVICE PRO-
VIDERS
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 crimi-
nal law, for any action it takes in good faith to block the
transmission or receipt of unsolicited commercial electronic
mail messages.
SEC. 6. ENFORCEMENT.
(a) ENFORCEMENT THROUGH FTC ACT.—
(1) ENFORCEMENT.—Except as otherwise pro-
vided in this Act, section 5 shall be enforced by the
Commission under the FTC Act.
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(4) PROHIBITION OF CLASS ACTIONS.—A private
action arising under this subsection may not be
brought as a plaintiff class action pursuant to the
Federal Rules of Civil Procedure nor as a plaintiff
class action pursuant to the law or rules of procedure
of any State.
(5) PROTECTION OF TRADE SECRETS.—At the re-
quest 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 protec-
tive orders and conduct legal proceedings in such a
way as to protect the secrecy and security of the com-
puter, computer network, computer data, computer
program, and computer software involved in order to
prevent possible recurrence of the same or a similar
act by another person and to protect any trade secrets
of any such party or participant.
(c) ENFORCEMENT BY STATES.—
(1) IN GENERAL.—
(A) CIVIL ACTIONS.—In any case in which
the attorney general of a State has reason to be-
lieve that an interest of the residents of that
State has been or is threatened or adversely af-
fected by the engagement of any person in a
practice that violates section 5 of this Act, the
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State may bring civil action on behalf of the
residents of the State in an appropriate court of
that State, or in a district court of the United
States of appropriate jurisdiction for any or all
of the following relief:
(i) INJUNCTION.—To enjoin that prac-
tice.
(ii) COMPLIANCE
ENFORCEMENT.—To
enforce compliance with the provisions of
section 5.
(iii) DAMAGES.—To recover actual
monetary loss or receive $500 in damages
for each violation, except that if the court
finds that the defendant willfully or repeat-
edly violated section 5, the court may, in its
discretion, increase the amount of the
award to an amount equal to not more than
3 times the amount otherwise available
under this clause.
(B) LIMITATION ON MONETARY DAMAGES.—
All monetary amounts recovered or received by
settlement or judgment in an action under this
paragraph shall be paid directly to the persons
who incurred losses or suffered damages as a re-
sult of the violation under section 5 for which the
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action was brought, and no such amounts may
be retained by the State or may be used directly
or indirectly to offset the cost of such litigation.
(C) NOTICE.—
(i) IN GENERAL.—Before filing an ac-
tion under subparagraph (A), the attorney
general of the State involved shall provide
to the Commission—
(I) written notice of that action;
and
(II) a copy of the complaint for
that action.
(ii) EXEMPTION.—
(I) IN GENERAL.—Clause (i) shall
not apply with respect to the filing of
an action by an attorney general of a
State under this subsection, if the at-
torney general determines that it is not
feasible to provide the notice described
in that subparagraph before the filing
of the action.
(II) NOTIFICATION.—In an action
described in subclause (I), the attorney
general of a State shall provide notice
and a copy of the complaint to the
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Commission at the same time as the
attorney general files the action.
(2) INTERVENTION.—
(A) IN
GENERAL.—On receiving notice
under paragraph (1)(B), the Commission shall
have the right to intervene in the action that is
the subject of the notice.
(B) EFFECT
OF
INTERVENTION.—If the
Commission intervenes in an action under para-
graph (1), it shall have the right—
(i) to be heard with respect to any
matter that arises in that action; and
(ii) to file a petition for appeal.
(3) CONSTRUCTION.—For purposes of bringing
any civil action under paragraph (1), nothing in this
Act shall be construed to prevent an attorney general
of a State from exercising the powers conferred on the
attorney general by the laws of that State to—
(A) conduct investigations;
(B) administer oaths or affirmations; or
(C) compel the attendance of witnesses or
the production of documentary and other evi-
dence.
(4) VENUE; SERVICE OF PROCESS.—
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(A) VENUE.—Any action brought under
paragraph (1) may be brought in the district
court of the United States that meets applicable
requirements relating to venue under section
1391 of title 28, United States Code.
(B) SERVICE OF PROCESS.—In an action
brought under paragraph (1), process may be
served in any district in which the defendant—
(i) is an inhabitant; or
(ii) may be found.
SEC. 7. EFFECT ON OTHER LAWS.
(a) FEDERAL LAW.—Nothing in this Act shall be con-
strued 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 law or any State criminal law regarding obscen-
ity or the sexual exploitation of children.
(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 preempt
any civil action under—
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(1) State trespass or contract law; or
(2) 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 commercial 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-
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 modify
such provisions.
SEC. 9. SEVERABILITY.
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 60 days after
the date of the enactment of this Act.
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Anti-
Spamming Act of 2001’’.
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SEC. 2. SPAMMING PROHIBITIONS.
(a) IN GENERAL.—Part I of title 18, United
States Code, is amended by inserting after
chapter 29 the following:
‘‘CHAPTER 30—ELECTRONIC MAIL
‘‘Sec.
‘‘621. Unsolicited commercial electronic mail containing fraudu-
lent transmission information.
‘‘622. Warning labels for electronic mail containing advertise-
ments harmful to minors.
‘‘§ 621. Unsolicited commercial electronic mail con-
taining fraudulent transmission informa-
tion
‘‘(a) Whoever intentionally initiates in one
or more transactions the transmission of 10 or
more unsolicited commercial electronic mail
messages to one or more protected computers
in the United States, knowing that each such
message contains or is accompanied by head-
er information that is materially false or mis-
leading as to the identity of the person initi-
ating the transmission shall be fined under
this title, and in the case of an offense under
this section which occurs after conviction for
a prior offense under this section, shall be so
fined or imprisoned not more than one year,
or both.
‘‘(b) As used in this section—
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‘‘(1) the term ‘commercial electronic
mail message’ means an electronic mail
message the primary purpose of which is
to advertise or promote, for a commercial
purpose, a product or service (including
content on an Internet website);
‘‘(2) the term ‘header information’
means the source, destination, and rout-
ing information, including the origi-
nating domain name and originating elec-
tronic mail address; and
‘‘(3) the term ‘protected computer’ has
the meaning given that term in section
1030(e)(2) of this title.
‘‘(c)(1) A provider of Internet access serv-
ice, if otherwise permitted by the laws or
rules of a court of a State, may bring in an ap-
propriate court of that State, or, if such laws
or rules do not so permit, may bring in an ap-
propriate Federal court, an action to recover
for actual or statutory damages, as provided
in paragraph (2), and for costs, as provided in
paragraph (4).
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‘‘(2) A person committing a violation of
subsection (a) is liable to a provider of Inter-
net access service for either—
‘‘(A) the actual damages suffered by
the provider of Internet access service; or
‘‘(B) statutory damages, as provided
in paragraph (3).
‘‘(3) At any time before final judgment in
an action, a provider of Internet access serv-
ice may elect to recover an award of statutory
damages for each violation of subsection (a)
in the sum of $5 per violation, not to exceed
a total of $1,000,000, except that, during any
one-year period for which the defendant has
transmitted in excess of 20,000,000 unsolicited
commercial electronic mail messages, no such
limit on liability shall exist.
‘‘(4) In any action brought under para-
graph (1), the court may award to a prevailing
party reasonable litigation expenses incurred
by that party, including reasonable attorney’s
fees, as a part of the costs awarded under sec-
tion 1920 of title 28 against any party found
in that action to have committed a violation
of subsection (a).
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‘‘§ 622. Warning labels for electronic mail containing
advertisements harmful to minors
‘‘(a)(1) The Attorney General shall pre-
scribe marks or notices to be included in elec-
tronic mail that contains a sexually oriented
advertisement in order to inform the recipi-
ent of that fact.
‘‘(2) Whoever, in any electronic mail that
is carried on an instrumentality in or affect-
ing interstate or foreign commerce, know-
ingly includes a sexually oriented advertise-
ment but does not include in such electronic
mail the marks or notices prescribed by the
Attorney General under this section shall be
fined under this title or imprisoned not more
than one year, or both.
‘‘(b) As used in this section, the term ‘sexu-
ally oriented advertisement’ means any ad-
vertisement that depicts, in actual or simu-
lated form, or explicitly describes, in a pre-
dominantly sexual context, human genitalia,
any act of natural or unnatural sexual inter-
course, any act of sadism or masochism, or
any other erotic subject directly related to the
foregoing, but material otherwise within the
definition of this subsection shall be deemed
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not to constitute a sexually oriented adver-
tisement if it constitutes only a small and in-
significant part of the whole, the remainder
of which is not primarily devoted to sexual
matters.’’.
(b) CLERICAL AMENDMENT.—The table of
chapters at the beginning of part I of title 18,
United States Code, is amended by inserting
after the item relating to chapter 29 the fol-
lowing new item:
‘‘30. Electronic mail .....................................................................
621’’.
SEC. 3. STUDY OF EFFECTS OF UNSOLICITED COMMERCIAL
ELECTRONIC MAIL.
Not later than 18 months after the date of
the enactment of this Act, the Attorney Gen-
eral shall submit a report to the Congress that
provides a detailed analysis of the effective-
ness and enforcement of the provisions of this
Act and the need (if any) for the Congress to
modify such provisions.
Union Calendar No. 43
107TH CONGRESS
1ST SESSION
H. R. 718
[Report No. 107–41, Parts I and II]
A BILL
To protect individuals, families, and Internet serv-
ice providers from unsolicited and unwanted elec-
tronic mail.
JUNE 5, 2001
Reported from the Committee on the Judiciary with an
amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be
printed