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

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A BILL

   To protect individuals, families, and ISPs from unsolicited bulk commercial e-mail.

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

SECTION 1. SHORT TITLE; TABLE OF SECTIONS.

-(a) SHORT TITLE- This Act may be cited as the `Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2000'.

(b) TABLE OF SECTIONS- The table of sections for this Act is as follows:

Sec. 1. Short title; table of sections.

Sec. 2. Findings.

Sec. 3. Public policy statement.

Sec. 4. Prohibited acts.

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.

SEC. 2. FINDINGS.

The Congress makes the following findings:

(1) There is a right of free speech on the Internet.

(2) The Internet has increasingly become a critical mode of global communication and now presents unprecedented opportunities for the development and growth of global commerce and an integrated worldwide 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 ISPs from having a reasonably predictable, efficient, and economical online experience.

(3) Unsolicited commercial e-mail can be an important mechanism through which businesses advertise and attract customers in the online environment.

(4) The receipt of unsolicited commercial e-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 e-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 interactive computer service, and shifting costs from the sender of the advertisement to the interactive computer service.

(6) While some senders of unsolicited commercial e-mail provide simple and reliable ways for recipients to reject (or `opt-out' of) receipt of unsolicited commercial e-mail from such senders in the future, other senders provide no such `opt-out' mechanism, or refuse to honor the requests of recipients not to receive e-mail from such senders in the future, or both.

(7) An increasing number of senders of unsolicited commercial e-mail and unsolicited pandering e-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 e-mail and unsolicited pandering e-mail collect or harvest e-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 e-mail and unsolicited pandering e-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.

SEC. 3. PUBLIC POLICY STATEMENT.

The Congress makes the following statement of public policy:

(1) There is substantial government interest in regulation of unsolicited bulk commercial e-mail.

(2) The cost to the public of Internet use is increased by costs incurred by ISPs for the transmission and retransmission of unsolicited commercial e-mail.

(3) Recipients of unsolicited commercial e-mail have a right to decline to receive or have their children receive unsolicited commercial e-mail.

SEC. 4. PROHIBITED ACTS.

(a) RETURN ADDRESS REQUIRED- It is unlawful for any person to initiate the transmission of an unsolicited commercial e-mail message to any person within the United States unless the message contains a valid and legitimately obtained e-mail address, conspicuously displayed, to which a recipient may send a reply to the sender asking the sender to send no further unsolicited bulk commercial e-mail messages to the recipient at the e-mail address at which the message was received.

(b) TRANSMISSION AFTER REQUESTED STOP- It is unlawful for a sender to initiate the transmission of an unsolicited bulk commercial e-mail message to a recipient who sent a reply under subsection (a) asking the sender not to send further such e-mail to the recipient if the e-mail message is sent more than 10 days after the sender received the reply.

(c) FALSIFICATION OF TRANSMISSION INFORMATION- It is unlawful for any person to initiate the transmission of an unsolicited commercial e-mail message to any person in the United States with false or misleading e-mail transmission address or routing information. For purposes of this subsection, information is misleading if it is intended, or reasonably may be expected, to mislead the recipient about the origin of the e-mail message or the address to which a reply may be sent under subsection (a).

(d) SALE OR DISTRIBUTION OF PROHIBITED SOFTWARE- It is unlawful for any person knowingly to sell, give, or otherwise distribute, or to possess with the intent to sell, give, or distribute any software, that--

(1) is primarily designed or produced for the purpose of facilitating or enabling the falsification of unsolicited commercial e-mail transmission or routing information;

(2) has limited commercially-significant purposes or uses other than to facilitate or enable the falsification of e-mail transmission or routing information; or

(3) is marketed for the purpose of facilitating or enabling the falsification of e-mail transmission or routing information.

SEC. 5. RULES APPLICABLE TO ISPs.

(a) TRANSMISSION WITHOUT COMPENSATION- Notwithstanding any other provision of law to the contrary, an ISP may decline to transmit unsolicited commercial e-mail messages to its subscribers without compensation from the sender.

(b) ISP HELD HARMLESS FOR GOOD FAITH PRIVATE ENFORCEMENT- An ISP is not liable, under any Federal or State civil or criminal law, for any action it takes in good faith to block the transmission or receipt of unsolicited commercial e-mail.

(c) INNOCENT RETRANSMISSION- An ISP the facilities of which are used only as an intermediary, retransmitter, or relay for unsolicited bulk commercial e-mail transmitted in violation of section 4 is not liable for any harm resulting from the transmission or receipt of that e-mail unless it permits the transmission or retransmission of such e-mail with actual knowledge that the transmission is prohibited by section 4.

SEC. 6. RULES APPLICABLE TO DOMAIN REGISTRAR INFORMATION.

(a) UNLAWFUL DISCLOSURE OR USE- It is unlawful for any person within the United States to use or disclose domain name registration data, obtained from a domain name registrar, domain name registry, or other domain registration authority if--

(1) that use or disclosure violates policies of that registrar, registry, or authority that are clearly and conspicuously posted on its website; and

(2) the data is used for the purpose of transmitting or enabling the transmission of unsolicited bulk commercial e-mail in violation of section 4.

(b) NO LIABILITY FOR FAILURE TO DISCLOSE- Except as provided in subsection (c), a domain name registrar, domain name registry, or other domain registration authority is not liable from any harm resulting from its failure or refusal to disclose domain name registration data if that failure or refusal is based on a good faith belief that disclosure of the data would result in its being used to transmit, or enable the transmission of, an unsolicited commercial e-mail message in violation of section 4.

(c) LIMITATION- Subsection (b) does not permit a domain name registrar, domain name registry, or other domain registration authority to limit or restrict access to domain name registration data if that access is sought for the purpose of--

(1) enforcing intellectual property rights;

(2) law enforcement; or

(3) consumer protection.

SEC. 7. NOTIFICATION OF VIOLATORS.

(a) Notification Process-

(1) IN GENERAL- The Commission shall send a notification of alleged violation to any person who violates section 4 if--

(A) the Commission has been notified, in such form and manner as the Commission may prescribe, by a recipient or Internet Service Provider that an unsolicited bulk commercial e-mail message has been received that was transmitted in violation of section 4; or

(B) the Commission has other reason to believe that such person has violated or is violating section 4.

(2) RECIPIENT'S CHILDREN TO BE PERSONALLY IDENTIFIED- If requested by a recipient of an unsolicited bulk commercial e-mail message that was transmitted in violation of section 4, the Commission shall include the e-mail address of any child of the recipient in the notice.

(3) TERMS OF NOTIFICATION- The notification shall--

(A) direct the person to which it is addressed to refrain from initiating or transmitting further unsolicited bulk commercial e-mail messages to any e-mail address described in the notification or to an Internet Service Provider designated in the notification more than 10 days after the date on which the notification is issued; and

(B) direct that person to delete, immediately, the e-mail address of any recipient or recipient's child named in the notification from all of that person's e-mail directories or mailing lists (except for the purpose of complying with the notification); and

(C) prohibit that person from transferring, with or without consideration, or otherwise making available, to any other person a mailing list that contains the e-mail address of any recipient or recipient's child named in the notification (except for the purpose of complying with the notification).

(b) ENFORCEMENT OF NOTIFICATION TERMS-

(1) NOTICE- If the Commission finds that a person has failed to comply with the terms of a notification issued under subsection (a), the Commission shall serve a complaint, by registered or certified mail, on that person--

(A) setting forth the Commission's finding and the reasons therefore; and

(B) requiring that person to respond in writing to the Commission within 15 days after the date on which the complaint was served setting forth any defense, in fact or in law, to the Commission's finding.

(2) HEARING AND ORDER- If the Commission, 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) ENFORCEMENT BY COURT ORDER-

(1) IN GENERAL- Any district court of the United States within the jurisdiction of which an e-mail transmission is sent or received in violation of a notification 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.

(2) REMEDY NOT EXCLUSIVE- The remedy provided by paragraph (1) is in addition to any enforcement by the Commission under section 9.

SEC. 8. ENFORCEMENT OF ORDERS.

(a) IN GENERAL- Except as otherwise provided in this Act, this Act shall be enforced by the Commission in the same manner as a trade regulation of the Commission.

(b) ACTIONS BY THE COMMISSION- The Commission shall prevent any person from violating this Act in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this Act. Any entity that violates any provision of that title is subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act in the same manner, by the same means, and with the same jurisdiction, power, and duties as though all applicable terms and provisions of the Federal Trade Commission Act were incorporated into and made a part of that title.

SEC. 9. REMEDIES AVAILABLE TO ISPs.

(a) IN GENERAL- An ISP adversely affected by a violation of section 4 may bring a civil action in any district court of the United States with jurisdiction over the defendant--

(1) to enjoin further violation of that section by the defendant;

(2) to recover actual damages incurred by the ISP as a result of that violation; and

(3) to recover, in addition to such actual damages, an amount equal to the greater of--

(A) $1 for each unsolicited bulk commercial e-mail message transmitted in violation of section 4 that caused the ISP to suffer harm; or

(B) $50,000 for each day on which the defendant committed the violation that caused the ISP to suffer harm.

(b) WILLFUL VIOLATION- If the court finds that the defendant committed the violation willfully and knowingly, the court may increase the amount recoverable under subsection (a)(3) threefold.

(c) COURT COSTS; ATTORNEYS FEES- The court, in any action brought under subsection (a), may award court costs, including the cost of service of process, expert witness fees, and reasonable attorneys' fees to the prevailing party.

(d) PROTECTION OF TRADE SECRETS- At the request of any party to an action brought under subsection (a), the court may issue appropriate protective orders and conduct proceedings in such a way as to protect the secrecy and security of any computer, computer network, computer data, computer program, and computer software involved in the action to the extent necessary--

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

(2) to prevent the possible recurrence of a violation.

SEC. 10. ENFORCEMENT BY STATES.

(a) IN GENERAL-

(1) CIVIL ACTIONS- In any case in which the attorney general of a State has reason to believe that an interest of the residents of that State has been or is threatened or adversely affected by the engagement of any person in a practice that violates section 4, the State, as parens patriae, may bring a civil action on behalf of the residents of the State in a district court of the United States of appropriate jurisdiction to--

(A) enjoin that practice;

(B) enforce compliance with the rule;

(C) obtain damage, restitution, or other compensation on behalf of residents of the State; or

(D) obtain such other relief as the court may consider to be appropriate.

(2) NOTICE-

(A) IN GENERAL- Before filing an action under paragraph (1), 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.

(B) EXEMPTION-

(i) IN GENERAL- Subparagraph (A) shall not apply with respect to the filing of an action by an attorney general of a State under this subsection, if the attorney 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 clause (i), the attorney general of a State shall provide notice and a copy of the complaint to the Commission at the same time as the attorney general files the action.

(b) INTERVENTION-

(1) IN GENERAL- On receiving notice under subsection (a)(2), the Commission shall have the right to intervene in the action that is the subject of the notice.

(2) EFFECT OF INTERVENTION- If the Commission intervenes in an action under subsection (a), it shall have the right--

(A) to be heard with respect to any matter that arises in that action; and

(B) to file a petition for appeal.

(c) CONSTRUCTION- For purposes of bringing any civil action under subsection (a), 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--

(1) conduct investigations;

(2) administer oaths or affirmations; or

(3) compel the attendance of witnesses or the production of documentary and other evidence.

(d) VENUE; SERVICE OF PROCESS-

(1) VENUE- Any action brought under subsection (a) 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.

(2) SERVICE OF PROCESS- In an action brought under subsection (a), process may be served in any district in which the defendant--

(A) is an inhabitant; or

(B) may be found.

SEC. 11. EFFECT ON OTHER LAWS.

(a) NO EFFECT ON CRIMINAL 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 children) of title 18, United States Code, or any other Federal criminal statute.

(b) STATE LAW-

(1) IN GENERAL- No State or political subdivision of a State may impose civil liability for any commercial activity or other act in interstate or foreign commerce in violation of section 4 that is inconsistent with the treatment of that activity or act under this Act.

(2) EXCEPTION- Paragraph (1) does not preempt--

(A) any civil remedy available under State or local trespass law; or

(B) any Federal, State, or local criminal law, or any civil remedy available under such law, relating to acts of computer fraud or abuse arising from the unauthorized transmission of unsolicited commercial e-mail messages.

SEC. 12. COMMISSION STUDY INTO EFFECTS OF UNSOLICITED BULK COMMERCIAL ELECTRONIC MAIL.

Not later than 18 months after the date of enactment of this Act, the Commission shall submit to Congress a report on--

(1) the effectiveness of this Act in preventing or reducing the volume of unsolicited bulk commercial e-mail;

(2) enforcement actions taken under this Act; and

(3) the need, if any, for Congress to modify the provisions of this Act.

SEC. 13. DEFINITIONS.

In this Act:

(1) CHILD- The term `child' means an individual under the age of 13.

(2) COMMISSION- The term `Commission' means the Federal Trade Commission.

(3) DOMAIN NAME- The term `domain name' means an alphanumeric designation which is registered with or assigned by a domain name registrar, domain name registry, or other domain name registration authority as part of an electronic address on the Internet.

(4) E-MAIL ADDRESS-

(A) IN GENERAL- The term `e-mail address' means a destination (commonly expressed as a string of characters) to which e-mail can be sent or delivered.

(B) INCLUSION- In the case of the Internet, the term `e-mail address' may include an e-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').

(5) INTERNET- The term `Internet' means collectively the myriad of computer and telecommunications facilities, including equipment and operating software, which comprise the interconnected world-wide network of networks that employ the Transmission Control Protocol/Internet Protocol, or any predecessor or successor protocols to such protocol, to communicate information of all kinds by wire or radio.

(6) ISP- The term `ISP' means a service that enables users to access content, information, e-mail, or other services offered over the Internet and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services.

(7) SENDER- The term `sender' when used with respect to an e-mail message--

(A) means the person who initiated the transmission of such message, or caused the initiation of the transmission of that message; but

(B) does not include--

(i) an ISP whose role is limited to handling, transmission, or retransmission of that message; or

(ii) any other person affiliated with the person who initiated or caused the transmission.

(8) PRE-EXISTING BUSINESS RELATIONSHIP- The term `pre-existing business relationship' means that, before the message was transmitted--

(A) the sender and the recipient had a business relationship within the preceding 60 months;

(B) the recipient requested information contained in the message; or

(C) the recipient was given an opportunity, by the sender, to request that the sender not transmit messages to the recipient and has not made such a request.

(9) RECIPIENT- The term `recipient' when used with respect to an e-mail message means any addressee of that message.

(10) COMMERCIAL E-MAIL MESSAGE- The term `commercial e-mail message' means an e-mail message the primary purpose of which is to propose a commercial transaction or to advertise a commercial product or service. An e-mail message shall not be considered to be a commercial e-mail message solely because it includes a reference to a commercial entity.

(11) UNSOLICITED COMMERCIAL E-MAIL MESSAGE- The term `unsolicited commercial e-mail message' means any commercial e-mail message sent with the intent that the message be received by a recipient with whom the sender does not have a pre-existing business or personal relationship.

(12) UNSOLICITED BULK COMMERCIAL E-MAIL MESSAGE- The term `unsolicited bulk commercial e-mail message' means at least 50 substantially identical unsolicited commercial e-mail messages whether sent simultaneously, in packets of less than 50, or individually.

SEC. 14. EFFECTIVE DATE.

This Act shall take effect 90 days after the date of enactment.