106th CONGRESS
1st Session
S. 759

To regulate the transmission of unsolicited commercial electronic mail on the Internet, and for other purposes.

IN THE SENATE OF THE UNITED STATES
March 25, 1999

Mr. MURKOWSKI (for himself, Mr. TORRICELLI, Mr. BURNS, and Mr. REID) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

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A BILL

To regulate the transmission of unsolicited commercial electronic mail on the Internet, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the 'Inbox Privacy Act of 1999'.

SEC. 2. TRANSMISSIONS OF UNSOLICITED COMMERCIAL ELECTRONIC MAIL.

(a) PROHIBITION ON TRANSMISSION TO PERSONS DECLINING RECEIPT-

(1) IN GENERAL- A person may not initiate the transmission of unsolicited commercial electronic mail to another person if such other person submits to the person a request that the initiation of the transmission of such mail by the person to such other person not occur.

(2) FORM OF REQUEST- A request under paragraph (1) may take any form appropriate to notify a person who initiates the transmission of unsolicited commercial electronic mail of the request, including an appropriate reply to a notice specified in subsection (d)(2).

(3) CONSTRUCTIVE AUTHORIZATION-

(A) IN GENERAL- Subject to subparagraph (B), for purposes of this subsection, a person who secures a good or service from, or otherwise responds electronically to an offer in a commercial electronic mail message shall be deemed to have authorized the initiation of transmissions of unsolicited commercial electronic mail from the person who initiated transmission of the message.

(B) NO AUTHORIZATION FOR REQUEST FOR TERMINATION- A reply to a notice specified in subsection (d)(2) shall not constitute authorization for the initiation of transmissions of unsolicited commercial electronic mail under this paragraph.

(b) PROHIBITION ON TRANSMISSION TO DOMAIN OWNERS DECLINING RECEIPT-

(1) IN GENERAL- Except as provided in paragraph (2), a person may not initiate the transmission of unsolicited commercial electronic mail to any electronic mail addresses served by a domain if the domain owner has elected not to receive transmissions of such mail at the domain in accordance with subsection (c).

(2) EXCEPTIONS- The prohibition in paragraph (1) shall not apply in the case of the following:

(A) A domain owner initiating transmissions of commercial electronic mail to its own domain.

(B) Any customer of an Internet service provider or interactive computer service provider included on a list under subsection (c)(3)(C).

(c) DOMAIN-WIDE OPT-OUT SYSTEM-

(1) IN GENERAL- A domain owner may elect not to receive transmissions of unsolicited commercial electronic mail at its own domain.

(2) NOTICE OF ELECTION- A domain owner making an election under this subsection shall--

(A) notify the Federal Trade Commission of the election in such form and manner as the Commission shall require for purposes of section 4(c); and

(B) if the domain owner is an Internet service provider or interactive computer service provider, notify the customers of its Internet service or interactive computer service, as the case may be, in such manner as the provider customarily employs for notifying such customers of matters relating to such service, of--

(i) the election; and

(ii) the authority of the customers to make the election provided for under paragraph (3).

(3) CUSTOMER ELECTION TO CONTINUE RECEIPT OF MAIL-

(A) ELECTION- Any customer of an Internet service provider or interactive computer service provider receiving a notice under paragraph (2)(B) may elect to continue to receive transmissions of unsolicited commercial electronic mail through the domain covered by the notice, notwithstanding the election of the Internet service provider or interactive computer service provider under paragraph (1) to which the notice applies.

(B) TRANSMITTAL OF MAIL- An Internet service provider or interactive computer service provider may not impose or collect any fee for the receipt of unsolicited commercial electronic mail under this paragraph (other than the usual and customary fee imposed and collected for the receipt of commercial electronic mail by its customers) or otherwise discriminate against a customer for the receipt of such mail under this paragraph.

(C) LIST OF CUSTOMERS MAKING ELECTION-

REQUIREMENT- An Internet service provider or interactive computer service provider shall maintain a list of each of its current customers who have made an election under subparagraph (A).

(ii) AVAILABILITY OF LIST- Each such provider shall make such list available to the public in such form and manner as the Commission shall require for purposes of section 4(c).

(iii) PROHIBITION ON FEE- A provider may not impose or collect any fee in connection with any action taken under this subparagraph.

(d) INFORMATION TO BE INCLUDED IN ALL TRANSMISSIONS- A person initiating the transmission of any unsolicited commercial electronic mail message shall include in the body of such message the following information:

(1) The name, physical address, electronic mail address, and telephone number of the person.

(2) A clear and obvious notice that the person will cease further transmissions of commercial electronic mail to the recipient of the message at no cost to that recipient upon the transmittal by that recipient to the person, at the electronic mail address from which transmission of the message was initiated, of an electronic mail message containing the word 'remove' in the subject line.

(e) ROUTING INFORMATION- A person initiating the transmission of any commercial electronic mail message shall ensure that all Internet routing information contained in or accompanying such message is accurate, valid according to the prevailing standards for Internet protocols, and accurately reflects the routing of such message.

SEC. 3. DECEPTIVE ACTS OR PRACTICES IN CONNECTION WITH SALE OF GOODS OR SERVICES OVER THE INTERNET.

(a) AUTHORITY TO REGULATE-

(1) IN GENERAL- The Federal Trade Commission may prescribe rules for purposes of defining and prohibiting deceptive acts or practices in connection with the promotion, advertisement, offering for sale, or sale of goods or services on or by means of the Internet.

(2) COMMERCIAL ELECTRONIC MAIL- The rules under paragraph (1) may contain specific provisions addressing deceptive acts or practices in the initiation, transmission, or receipt of commercial electronic mail.

(3) NATURE OF VIOLATION- The rules under paragraph (1) shall treat any violation of such rules as a violation of a rule under section 18 of the Federal Trade Commission Act (15 U.S.C. 57a), relating to unfair or deceptive acts or practices affecting commerce.

(b) PRESCRIPTION- Section 553 of title 5, United States Code, shall apply to the prescription of any rules under subsection (a).

SEC. 4. FEDERAL TRADE COMMISSION ACTIVITIES WITH RESPECT TO UNSOLICITED COMMERCIAL ELECTRONIC MAIL.

(a) INVESTIGATION-

(1) IN GENERAL- Subject to paragraph (2), upon notice of an alleged violation of a provision of section 2, the Federal Trade Commission may conduct an investigation in order to determine whether or not the violation occurred.

(2) LIMITATION- The Commission may not undertake an investigation of an alleged violation under paragraph (1) more than 2 years after the date of the alleged violation.

(3) RECEIPT OF NOTICES- The Commission shall provide for appropriate means of receiving notices under paragraph (1). Such means shall include an Internet web page on the World Wide Web that the Commission maintains for that purpose.

(b) ENFORCEMENT POWERS- If as a result of an investigation under subsection (a) the Commission determines that a violation of a provision of section 2 has occurred, the Commission shall have the power to enforce such provision as if such violation were a violation of a rule prescribed under section 18 of the Federal Trade Commission Act (15 U.S.C. 57a), relating to unfair or deceptive acts or practices affecting commerce.

(c) INFORMATION ON ELECTIONS UNDER DOMAIN-WIDE OPT-OUT SYSTEM-

(1) INITIAL SITE FOR INFORMATION- The Commission shall establish and maintain an Internet web page on the World Wide Web containing information sufficient to make known to the public for purposes of section 2 the domain owners who have made an election under subsection (c)(1) of that section and the persons who have made an election under subsection (c)(3) of that section.

(2) ALTERNATIVE SITE- The Commission may from time to time select another means of making known to the public the information specified in paragraph (1). Any such selection shall be made in consultation with the members of the Internet community.

(d) ASSISTANCE OF OTHER FEDERAL AGENCIES- Other Federal departments and agencies may, upon request of the Commission, assist the Commission in carrying out activities under this section.

SEC. 5. ACTIONS BY STATES.

(a) IN GENERAL- Whenever the attorney general of a State has reason to believe that the interests of the residents of the State have been or are being threatened or adversely affected because any person is engaging in a pattern or practice of the transmission of electronic mail in violation of a provision of section 2, or of any rule prescribed pursuant to section 3, the State, as parens patriae, may bring a civil action on behalf of its residents to enjoin such transmission, to enforce compliance with such provision or rule, to obtain damages or other compensation on behalf of its residents, or to obtain such further and other relief as the court considers appropriate.

(b) NOTICE TO COMMISSION-

(1) NOTICE- The State shall serve prior written notice of any civil action under this section on the Federal Trade Commission and provide the Commission with a copy of its complaint, except that if it is not feasible for the State to provide such prior notice, the State shall serve written notice immediately after instituting such action.

(2) RIGHTS OF COMMISSION- On receiving a notice with respect to a civil action under paragraph (1), the Commission shall have the right--

(A) to intervene in the action;

(B) upon so intervening, to be heard in all matters arising therein; and

(C) to file petitions for appeal.

(c) ACTIONS BY COMMISSION- Whenever a civil action has been instituted by or on behalf of the Commission for violation of a provision of section 2, or of any rule prescribed pursuant to section 3, no State may, during the pendency of such action, institute a civil action under this section against any defendant named in the complaint in such action for violation of any provision or rule as alleged in the complaint.

(d) CONSTRUCTION- For purposes of bringing a civil action under subsection (a), nothing in this section shall prevent an attorney general from exercising the powers conferred on the attorney general by the laws of the State concerned to conduct investigations or to administer oaths or affirmations or to compel the attendance of witnesses or the production of documentary or other evidence.

(e) VENUE; SERVICE OF PROCESS- Any civil action brought under subsection (a) in a district court of the United States may be brought in the district in which the defendant is found, is an inhabitant, or transacts business or wherever venue is proper under section 1391 of title 28, United States Code. Process in such an action may be served in any district in which the defendant is an inhabitant or in which the defendant may be found.

(f) DEFINITIONS- In this section:

(1) ATTORNEY GENERAL- The term 'attorney general' means the chief legal officer of a State.

(2) STATE- The term 'State' means any State of the United States, the District of Columbia, Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, the Republic of the Marshall Islands, the Federated States of Micronesia, the Republic of Palau, and any possession of the United States.

SEC. 6. ACTIONS BY INTERNET SERVICE PROVIDERS AND INTERACTIVE COMPUTER SERVICE PROVIDERS.

(a) ACTIONS AUTHORIZED- In addition to any other remedies available under any other provision of law, any Internet service provider or interactive computer service provider adversely affected by a violation of section 2(b)(1) may, within 1 year after discovery of the violation, bring a civil action in a district court of the United States against a person who violates such section.

(b) RELIEF-

(1) IN GENERAL- An action may be brought under subsection (a) to enjoin a violation referred to in that subsection, to enforce compliance with the provision referred to in that subsection, to obtain damages as specified in paragraph (2), or to obtain such further and other relief as the court considers appropriate.

(2) DAMAGES-

(A) IN GENERAL- The amount of damages in an action under this section for a violation specified in subsection (a) may not exceed $50,000 per day in which electronic mail constituting such violation was received.

(B) RELATIONSHIP TO OTHER DAMAGES- Damages awarded under this subsection for a violation under subsection (a) are in addition to any other damages awardable for the violation under any other provision of law.

(C) COST AND FEES- The court may, in issuing any final order in any action brought under subsection (a), award costs of suit, reasonable costs of obtaining service of process, reasonable attorney fees, and expert witness fees for the prevailing party.

(c) VENUE; SERVICE OF PROCESS- Any civil action brought under subsection (a) in a district court of the United States may be brought in the district in which the defendant or in which the Internet service provider or interactive computer service provider is located, is an inhabitant, or transacts business or wherever venue is proper under section 1391 of title 28, United States Code. Process in such an action may be served in any district in which the defendant is an inhabitant or in which the defendant may be found.

SEC. 7. PREEMPTION.

This Act preempts any State or local laws regarding the transmission or receipt of commercial electronic mail.

SEC. 8. DEFINITIONS.

In this Act:

(1) COMMERCIAL ELECTRONIC MAIL- The term 'commercial electronic mail' means any electronic mail or similar message whose primary purpose is to initiate a commercial transaction, not including messages sent by persons to others with whom they have a prior business relationship.

(2) INITIATE THE TRANSMISSION-

(A) IN GENERAL- The term 'initiate the transmission', in the case of an electronic mail message, means to originate the electronic mail message.

(B) EXCLUSION- Such term does not include any intervening action to relay, handle, or otherwise retransmit an electronic mail message, unless such action is carried out in intentional violation of a provision of section 2.

(3) INTERACTIVE COMPUTER SERVICE PROVIDER- The term 'interactive computer service provider' means a provider of an interactive computer service (as that term is defined in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. 230(e)(2)).

(4) 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)).

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