[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 759 Introduced in Senate (IS)]
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
_______________________________________________________________________
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.--
(i) 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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