Text: S.877 — 108th Congress (2003-2004)All Information (Except Text)

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Public Law No: 108-187 (12/16/2003)

 
[108th Congress Public Law 187]
[From the U.S. Government Printing Office]


[DOCID: f:publ187.108]

[[Page 117 STAT. 2699]]

Public Law 108-187
108th Congress

                                 An Act


 
To regulate interstate commerce by imposing limitations and penalties on 
   the transmission of unsolicited commercial electronic mail via the 
             Internet. <<NOTE: Dec. 16, 2003 -  [S. 877]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, <<NOTE: Controlling the 
Assault of Non-Solicited Pornography and Marketing Act of 2003.>> 

SECTION 1. <<NOTE: 15 USC 7701 note.>> SHORT TITLE.

    This Act may be cited as the ``Controlling the Assault of Non-
Solicited Pornography and Marketing Act of 2003'', or the ``CAN-SPAM Act 
of 2003''.

SEC. 2. <<NOTE: 15 USC 7701.>> CONGRESSIONAL FINDINGS AND POLICY.

    (a) Findings.--The Congress finds the following:
            (1) Electronic mail has become an extremely important and 
        popular means of communication, relied on by millions of 
        Americans on a daily basis for personal and commercial purposes. 
        Its low cost and global reach make it extremely convenient and 
        efficient, and offer unique opportunities for the development 
        and growth of frictionless commerce.
            (2) The convenience and efficiency of electronic mail are 
        threatened by the extremely rapid growth in the volume of 
        unsolicited commercial electronic mail. Unsolicited commercial 
        electronic mail is currently estimated to account for over half 
        of all electronic mail traffic, up from an estimated 7 percent 
        in 2001, and the volume continues to rise. Most of these 
        messages are fraudulent or deceptive in one or more respects.
            (3) The receipt of unsolicited commercial electronic 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.
            (4) The receipt of a large number of unwanted messages also 
        decreases the convenience of electronic mail and creates a risk 
        that wanted electronic mail messages, both commercial and 
        noncommercial, will be lost, overlooked, or discarded amidst the 
        larger volume of unwanted messages, thus reducing the 
        reliability and usefulness of electronic mail to the recipient.
            (5) Some commercial electronic mail contains material that 
        many recipients may consider vulgar or pornographic in nature.
            (6) The growth in unsolicited commercial electronic mail 
        imposes significant monetary costs on providers of 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

[[Page 117 STAT. 2700]]

        institutions can handle without further investment in 
        infrastructure.
            (7) Many senders of unsolicited commercial electronic mail 
        purposefully disguise the source of such mail.
            (8) Many senders of unsolicited commercial electronic mail 
        purposefully include misleading information in the messages' 
        subject lines in order to induce the recipients to view the 
        messages.
            (9) While some senders of commercial electronic mail 
        messages provide simple and reliable ways for recipients to 
        reject (or ``opt-out'' of) receipt of commercial electronic 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 electronic mail from such senders in 
        the future, or both.
            (10) Many senders of bulk unsolicited commercial electronic 
        mail use computer programs to gather large numbers of electronic 
        mail addresses on an automated basis from Internet websites or 
        online services where users must post their addresses in order 
        to make full use of the website or service.
            (11) Many States have enacted legislation intended to 
        regulate or reduce unsolicited commercial electronic mail, but 
        these statutes impose different standards and requirements. As a 
        result, they do not appear to have been successful in addressing 
        the problems associated with unsolicited commercial electronic 
        mail, in part because, since an electronic mail address does not 
        specify a geographic location, it can be extremely difficult for 
        law-abiding businesses to know with which of these disparate 
        statutes they are required to comply.
            (12) The problems associated with the rapid growth and abuse 
        of unsolicited commercial electronic mail cannot be solved by 
        Federal legislation alone. The development and adoption of 
        technological approaches and the pursuit of cooperative efforts 
        with other countries will be necessary as well.

    (b) Congressional Determination of Public Policy.--On the basis of 
the findings in subsection (a), the Congress determines that--
            (1) there is a substantial government interest in regulation 
        of commercial electronic mail on a nationwide basis;
            (2) senders of commercial electronic mail should not mislead 
        recipients as to the source or content of such mail; and
            (3) recipients of commercial electronic mail have a right to 
        decline to receive additional commercial electronic mail from 
        the same source.

SEC. 3. <<NOTE: 15 USC 7702.>> DEFINITIONS.

    In this Act:
            (1) Affirmative consent.--The term ``affirmative consent'', 
        when used with respect to a commercial electronic mail message, 
        means that--
                    (A) the recipient expressly consented to receive the 
                message, either in response to a clear and conspicuous 
                request for such consent or at the recipient's own 
                initiative; and
                    (B) if the message is from a party other than the 
                party to which the recipient communicated such consent, 
                the recipient was given clear and conspicuous notice at

[[Page 117 STAT. 2701]]

                the time the consent was communicated that the 
                recipient's electronic mail address could be transferred 
                to such other party for the purpose of initiating 
                commercial electronic mail messages.
            (2) Commercial electronic mail message.--
                    (A) In general.--The term ``commercial electronic 
                mail message'' means any electronic mail message the 
                primary purpose of which is the commercial advertisement 
                or promotion of a commercial product or service 
                (including content on an Internet website operated for a 
                commercial purpose).
                    (B) Transactional or relationship messages.--The 
                term ``commercial electronic mail message'' does not 
                include a transactional or relationship message.
                    (C) Regulations <<NOTE: Deadline.>> regarding 
                primary purpose.--Not later than 12 months after the 
                date of the enactment of this Act, the Commission shall 
                issue regulations pursuant to section 13 defining the 
                relevant criteria to facilitate the determination of the 
                primary purpose of an electronic mail message.
                    (D) Reference to company or website.--The inclusion 
                of a reference to a commercial entity or a link to the 
                website of a commercial entity in an electronic mail 
                message does not, by itself, cause such message to be 
                treated as a commercial electronic mail message for 
                purposes of this Act if the contents or circumstances of 
                the message indicate a primary purpose other than 
                commercial advertisement or promotion of a commercial 
                product or service.
            (3) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (4) Domain name.--The term ``domain name'' means any 
        alphanumeric designation which is registered with or assigned by 
        any domain name registrar, domain name registry, or other domain 
        name registration authority as part of an electronic address on 
        the Internet.
            (5) Electronic mail address.--The term ``electronic mail 
        address'' means a destination, commonly expressed as a string of 
        characters, consisting of a unique 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''), whether or not displayed, to which an electronic mail 
        message can be sent or delivered.
            (6) Electronic mail message.--The term ``electronic mail 
        message'' means a message sent to a unique electronic mail 
        address.
            (7) FTC act.--The term ``FTC Act'' means the Federal Trade 
        Commission Act (15 U.S.C. 41 et seq.).
            (8) Header information.--The term ``header information'' 
        means the source, destination, and routing information attached 
        to an electronic mail message, including the originating domain 
        name and originating electronic mail address, and any other 
        information that appears in the line identifying, or purporting 
        to identify, a person initiating the message.
            (9) Initiate.--The term ``initiate'', when used with respect 
        to a commercial electronic mail message, means to originate or 
        transmit such message or to procure the origination or

[[Page 117 STAT. 2702]]

        transmission of such message, but shall not include actions that 
        constitute routine conveyance of such message. For purposes of 
        this paragraph, more than one person may be considered to have 
        initiated a message.
            (10) Internet.--The term ``Internet'' has the meaning given 
        that term in the Internet Tax Freedom Act (47 U.S.C. 151 nt).
            (11) 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)).
            (12) Procure.--The term ``procure'', when used with respect 
        to the initiation of a commercial electronic mail message, means 
        intentionally to pay or provide other consideration to, or 
        induce, another person to initiate such a message on one's 
        behalf.
            (13) Protected computer.--The term ``protected computer'' 
        has the meaning given that term in section 1030(e)(2)(B) of 
        title 18, United States Code.
            (14) Recipient.--The term ``recipient'', when used with 
        respect to a commercial electronic mail message, means an 
        authorized user of the electronic mail address to which the 
        message was sent or delivered. If a recipient of a commercial 
        electronic mail message has one or more electronic mail 
        addresses in addition to the address to which the message was 
        sent or delivered, the recipient shall be treated as a separate 
        recipient with respect to each such address. If an electronic 
        mail address is reassigned to a new user, the new user shall not 
        be treated as a recipient of any commercial electronic mail 
        message sent or delivered to that address before it was 
        reassigned.
            (15) Routine conveyance.--The term ``routine conveyance'' 
        means the transmission, routing, relaying, handling, or storing, 
        through an automatic technical process, of an electronic mail 
        message for which another person has identified the recipients 
        or provided the recipient addresses.
            (16) Sender.--
                    (A) In general.--Except as provided in subparagraph 
                (B), the term ``sender'', when used with respect to a 
                commercial electronic mail message, means a person who 
                initiates such a message and whose product, service, or 
                Internet web site is advertised or promoted by the 
                message.
                    (B) Separate lines of business or divisions.--If an 
                entity operates through separate lines of business or 
                divisions and holds itself out to the recipient 
                throughout the message as that particular line of 
                business or division rather than as the entity of which 
                such line of business or division is a part, then the 
                line of business or the division shall be treated as the 
                sender of such message for purposes of this Act.
            (17) Transactional or relationship message.--
                    (A) In general.--The term ``transactional or 
                relationship message'' means an electronic mail message 
                the primary purpose of which is--
                          (i) to facilitate, complete, or confirm a 
                      commercial transaction that the recipient has 
                      previously agreed to enter into with the sender;

[[Page 117 STAT. 2703]]

                          (ii) to provide warranty information, product 
                      recall information, or safety or security 
                      information with respect to a commercial product 
                      or service used or purchased by the recipient;
                          (iii) to provide--
                                    (I) notification concerning a change 
                                in the terms or features of;
                                    (II) notification of a change in the 
                                recipient's standing or status with 
                                respect to; or
                                    (III) at regular periodic intervals, 
                                account balance information or other 
                                type of account statement with respect 
                                to,
                      a subscription, membership, account, loan, or 
                      comparable ongoing commercial relationship 
                      involving the ongoing purchase or use by the 
                      recipient of products or services offered by the 
                      sender;
                          (iv) to provide information directly related 
                      to an employment relationship or related benefit 
                      plan in which the recipient is currently involved, 
                      participating, or enrolled; or
                          (v) to deliver goods or services, including 
                      product updates or upgrades, that the recipient is 
                      entitled to receive under the terms of a 
                      transaction that the recipient has previously 
                      agreed to enter into with the sender.
                    (B) Modification of definition.--The Commission by 
                regulation pursuant to section 13 may modify the 
                definition in subparagraph (A) to expand or contract the 
                categories of messages that are treated as transactional 
                or relationship messages for purposes of this Act to the 
                extent that such modification is necessary to 
                accommodate changes in electronic mail technology or 
                practices and accomplish the purposes of this Act.
SEC. 4. PROHIBITION <<NOTE: 15 USC 7703.>> AGAINST PREDATORY AND 
                    ABUSIVE COMMERCIAL E-MAIL.

    (a) Offense.--
            (1) In general.--Chapter 47 of title 18, United States Code, 
        is amended by adding at the end the following new section:
``Sec. 1037. Fraud and related activity in connection with 
                    electronic mail

    ``(a) In General.--Whoever, in or affecting interstate or foreign 
commerce, knowingly--
            ``(1) accesses a protected computer without authorization, 
        and intentionally initiates the transmission of multiple 
        commercial electronic mail messages from or through such 
        computer,
            ``(2) uses a protected computer to relay or retransmit 
        multiple commercial electronic mail messages, with the intent to 
        deceive or mislead recipients, or any Internet access service, 
        as to the origin of such messages,
            ``(3) materially falsifies header information in multiple 
        commercial electronic mail messages and intentionally initiates 
        the transmission of such messages,
            ``(4) registers, using information that materially falsifies 
        the identity of the actual registrant, for five or more 
        electronic

[[Page 117 STAT. 2704]]

        mail accounts or online user accounts or two or more domain 
        names, and intentionally initiates the transmission of multiple 
        commercial electronic mail messages from any combination of such 
        accounts or domain names, or
            ``(5) falsely represents oneself to be the registrant or the 
        legitimate successor in interest to the registrant of 5 or more 
        Internet Protocol addresses, and intentionally initiates the 
        transmission of multiple commercial electronic mail messages 
        from such addresses,

or conspires to do so, shall be punished as provided in subsection (b).
    ``(b) Penalties.--The punishment for an offense under subsection (a) 
is--
            ``(1) a fine under this title, imprisonment for not more 
        than 5 years, or both, if--
                    ``(A) the offense is committed in furtherance of any 
                felony under the laws of the United States or of any 
                State; or
                    ``(B) the defendant has previously been convicted 
                under this section or section 1030, or under the law of 
                any State for conduct involving the transmission of 
                multiple commercial electronic mail messages or 
                unauthorized access to a computer system;
            ``(2) a fine under this title, imprisonment for not more 
        than 3 years, or both, if--
                    ``(A) the offense is an offense under subsection 
                (a)(1);
                    ``(B) the offense is an offense under subsection 
                (a)(4) and involved 20 or more falsified electronic mail 
                or online user account registrations, or 10 or more 
                falsified domain name registrations;
                    ``(C) the volume of electronic mail messages 
                transmitted in furtherance of the offense exceeded 2,500 
                during any 24-hour period, 25,000 during any 30-day 
                period, or 250,000 during any 1-year period;
                    ``(D) the offense caused loss to one or more persons 
                aggregating $5,000 or more in value during any 1-year 
                period;
                    ``(E) as a result of the offense any individual 
                committing the offense obtained anything of value 
                aggregating $5,000 or more during any 1-year period; or
                    ``(F) the offense was undertaken by the defendant in 
                concert with three or more other persons with respect to 
                whom the defendant occupied a position of organizer or 
                leader; and
            ``(3) a fine under this title or imprisonment for not more 
        than 1 year, or both, in any other case.

    ``(c) Forfeiture.--
            ``(1) In general.--The <<NOTE: Courts.>> court, in imposing 
        sentence on a person who is convicted of an offense under this 
        section, shall order that the defendant forfeit to the United 
        States--
                    ``(A) any property, real or personal, constituting 
                or traceable to gross proceeds obtained from such 
                offense; and
                    ``(B) any equipment, software, or other technology 
                used or intended to be used to commit or to facilitate 
                the commission of such offense.

[[Page 117 STAT. 2705]]

            ``(2) Procedures.--The <<NOTE: Applicability.>> procedures 
        set forth in section 413 of the Controlled Substances Act (21 
        U.S.C. 853), other than subsection (d) of that section, and in 
        Rule 32.2 of the Federal Rules of Criminal Procedure, shall 
        apply to all stages of a criminal forfeiture proceeding under 
        this section.

    ``(d) Definitions.--In this section:
            ``(1) Loss.--The term `loss' has the meaning given that term 
        in section 1030(e) of this title.
            ``(2) Materially.--For purposes of paragraphs (3) and (4) of 
        subsection (a), header information or registration information 
        is materially falsified if it is altered or concealed in a 
        manner that would impair the ability of a recipient of the 
        message, an Internet access service processing the message on 
        behalf of a recipient, a person alleging a violation of this 
        section, or a law enforcement agency to identify, locate, or 
        respond to a person who initiated the electronic mail message or 
        to investigate the alleged violation.
            ``(3) Multiple.--The term `multiple' means more than 100 
        electronic mail messages during a 24-hour period, more than 
        1,000 electronic mail messages during a 30-day period, or more 
        than 10,000 electronic mail messages during a 1-year period.
            ``(4) Other terms.--Any other term has the meaning given 
        that term by section 3 of the CAN-SPAM Act of 2003.''.
            (2) Conforming amendment.--The chapter analysis for chapter 
        47 of title 18, United States Code, is amended by adding at the 
        end the following:
``Sec.
``1037. Fraud and related activity in connection with electronic 
           mail.''.

    (b) United <<NOTE: 28 USC 994 note.>> States Sentencing 
Commission.--
            (1) Directive.--Pursuant to its authority under section 
        994(p) of title 28, United States Code, and in accordance with 
        this section, the United States Sentencing Commission shall 
        review and, as appropriate, amend the sentencing guidelines and 
        policy statements to provide appropriate penalties for 
        violations of section 1037 of title 18, United States Code, as 
        added by this section, and other offenses that may be 
        facilitated by the sending of large quantities of unsolicited 
        electronic mail.
            (2) Requirements.--In carrying out this subsection, the 
        Sentencing Commission shall consider providing sentencing 
        enhancements for--
                    (A) those convicted under section 1037 of title 18, 
                United States Code, who--
                          (i) obtained electronic mail addresses through 
                      improper means, including--
                                    (I) harvesting electronic mail 
                                addresses of the users of a website, 
                                proprietary service, or other online 
                                public forum operated by another person, 
                                without the authorization of such 
                                person; and
                                    (II) randomly generating electronic 
                                mail addresses by computer; or
                          (ii) knew that the commercial electronic mail 
                      messages involved in the offense contained or 
                      advertised an Internet domain for which the 
                      registrant of the domain had provided false 
                      registration information; and

[[Page 117 STAT. 2706]]

                    (B) those convicted of other offenses, including 
                offenses involving fraud, identity theft, obscenity, 
                child pornography, and the sexual exploitation of 
                children, if such offenses involved the sending of large 
                quantities of electronic mail.

    (c) Sense of Congress.--It is the sense of Congress that--
            (1) Spam has become the method of choice for those who 
        distribute pornography, perpetrate fraudulent schemes, and 
        introduce viruses, worms, and Trojan horses into personal and 
        business computer systems; and
            (2) the Department of Justice should use all existing law 
        enforcement tools to investigate and prosecute those who send 
        bulk commercial e-mail to facilitate the commission of Federal 
        crimes, including the tools contained in chapters 47 and 63 of 
        title 18, United States Code (relating to fraud and false 
        statements); chapter 71 of title 18, United States Code 
        (relating to obscenity); chapter 110 of title 18, United States 
        Code (relating to the sexual exploitation of children); and 
        chapter 95 of title 18, United States Code (relating to 
        racketeering), as appropriate.
SEC. 5. OTHER <<NOTE: 15 USC 7704.>> PROTECTIONS FOR USERS OF 
                    COMMERCIAL ELECTRONIC MAIL.

    (a) Requirements for Transmission of Messages.--
            (1) Prohibition of false or misleading transmission 
        information.--It is unlawful for any person to initiate the 
        transmission, to a protected computer, of a commercial 
        electronic mail message, or a transactional or relationship 
        message, that contains, or is accompanied by, header information 
        that is materially false or materially misleading. For purposes 
        of this paragraph--
                    (A) header information that is technically accurate 
                but includes an originating electronic mail address, 
                domain name, or Internet Protocol address the access to 
                which for purposes of initiating the message was 
                obtained by means of false or fraudulent pretenses or 
                representations shall be considered materially 
                misleading;
                    (B) a ``from'' line (the line identifying or 
                purporting to identify a person initiating the message) 
                that accurately identifies any person who initiated the 
                message shall not be considered materially false or 
                materially misleading; and
                    (C) header information shall be considered 
                materially misleading if it fails to identify accurately 
                a protected computer used to initiate the message 
                because the person initiating the message knowingly uses 
                another protected computer to relay or retransmit the 
                message for purposes of disguising its origin.
            (2) Prohibition of deceptive subject headings.--It is 
        unlawful for any person to initiate the transmission to a 
        protected computer of a commercial electronic mail message if 
        such person has actual knowledge, or knowledge fairly implied on 
        the basis of objective circumstances, that a subject heading of 
        the message would be likely to mislead a recipient, acting 
        reasonably under the circumstances, about a material fact

[[Page 117 STAT. 2707]]

        regarding the contents or subject matter of the message 
        (consistent with the criteria used in enforcement of section 5 
        of the Federal Trade Commission Act (15 U.S.C. 45)).
            (3) Inclusion of return address or comparable mechanism in 
        commercial electronic mail.--
                    (A) In general.--It is unlawful for any person to 
                initiate the transmission to a protected computer of a 
                commercial electronic mail message that does not contain 
                a functioning return electronic mail address or other 
                Internet-based mechanism, clearly and conspicuously 
                displayed, that--
                          (i) a recipient may use to submit, in a manner 
                      specified in the message, a reply electronic mail 
                      message or other form of Internet-based 
                      communication requesting not to receive future 
                      commercial electronic mail messages from that 
                      sender at the electronic mail address where the 
                      message was received; and
                          (ii) remains capable of receiving such 
                      messages or communications for no less than 30 
                      days after the transmission of the original 
                      message.
                    (B) More detailed options possible.--The person 
                initiating a commercial electronic mail message may 
                comply with subparagraph (A)(i) by providing the 
                recipient a list or menu from which the recipient may 
                choose the specific types of commercial electronic mail 
                messages the recipient wants to receive or does not want 
                to receive from the sender, if the list or menu includes 
                an option under which the recipient may choose not to 
                receive any commercial electronic mail messages from the 
                sender.
                    (C) Temporary inability to receive messages or 
                process requests.--A return electronic mail address or 
                other mechanism does not fail to satisfy the 
                requirements of subparagraph (A) if it is unexpectedly 
                and temporarily unable to receive messages or process 
                requests due to a technical problem beyond the control 
                of the sender if the problem is corrected within a 
                reasonable time period.
            (4) Prohibition of transmission of commercial electronic 
        mail after objection.--
                    (A) In general.--If a recipient makes a request 
                using a mechanism provided pursuant to paragraph (3) not 
                to receive some or any commercial electronic mail 
                messages from such sender, then it is unlawful--
                          (i) for the sender to initiate the 
                      transmission to the recipient, more than 10 
                      business days after the receipt of such request, 
                      of a commercial electronic mail message that falls 
                      within the scope of the request;
                          (ii) for any person acting on behalf of the 
                      sender to initiate the transmission to the 
                      recipient, more than 10 business days after the 
                      receipt of such request, of a commercial 
                      electronic mail message with actual knowledge, or 
                      knowledge fairly implied on the basis of objective 
                      circumstances, that such message falls within the 
                      scope of the request;
                          (iii) for any person acting on behalf of the 
                      sender to assist in initiating the transmission to 
                      the recipient, through the provision or selection 
                      of addresses to which the message will be sent, of 
                      a commercial electronic

[[Page 117 STAT. 2708]]

                      mail message with actual knowledge, or knowledge 
                      fairly implied on the basis of objective 
                      circumstances, that such message would violate 
                      clause (i) or (ii); or
                          (iv) for the sender, or any other person who 
                      knows that the recipient has made such a request, 
                      to sell, lease, exchange, or otherwise transfer or 
                      release the electronic mail address of the 
                      recipient (including through any transaction or 
                      other transfer involving mailing lists bearing the 
                      electronic mail address of the recipient) for any 
                      purpose other than compliance with this Act or 
                      other provision of law.
                    (B) Subsequent affirmative consent.--A prohibition 
                in subparagraph (A) does not apply if there is 
                affirmative consent by the recipient subsequent to the 
                request under subparagraph (A).
            (5) Inclusion of identifier, opt-out, and physical address 
        in commercial electronic mail.--(A) It is unlawful for any 
        person to initiate the transmission of any commercial electronic 
        mail message to a protected computer unless the message 
        provides--
                    (i) clear and conspicuous identification that the 
                message is an advertisement or solicitation;
                    (ii) clear and conspicuous notice of the opportunity 
                under paragraph (3) to decline to receive further 
                commercial electronic mail messages from the sender; and
                    (iii) a valid physical postal address of the sender.
            (B) Subparagraph (A)(i) does not apply to the transmission 
        of a commercial electronic mail message if the recipient has 
        given prior affirmative consent to receipt of the message.
            (6) Materially.--For purposes of paragraph (1), the term 
        ``materially'', when used with respect to false or misleading 
        header information, includes the alteration or concealment of 
        header information in a manner that would impair the ability of 
        an Internet access service processing the message on behalf of a 
        recipient, a person alleging a violation of this section, or a 
        law enforcement agency to identify, locate, or respond to a 
        person who initiated the electronic mail message or to 
        investigate the alleged violation, or the ability of a recipient 
        of the message to respond to a person who initiated the 
        electronic message.

    (b) Aggravated Violations Relating to Commercial Electronic Mail.--
            (1) Address harvesting and dictionary attacks.--
                    (A) In general.--It is unlawful for any person to 
                initiate the transmission, to a protected computer, of a 
                commercial electronic mail message that is unlawful 
                under subsection (a), or to assist in the origination of 
                such message through the provision or selection of 
                addresses to which the message will be transmitted, if 
                such person had actual knowledge, or knowledge fairly 
                implied on the basis of objective circumstances, that--
                          (i) the electronic mail address of the 
                      recipient was obtained using an automated means 
                      from an Internet website or proprietary online 
                      service operated by another person, and such 
                      website or online service included, at the time 
                      the address was obtained, a notice stating that 
                      the operator of such website or online

[[Page 117 STAT. 2709]]

                      service will not give, sell, or otherwise transfer 
                      addresses maintained by such website or online 
                      service to any other party for the purposes of 
                      initiating, or enabling others to initiate, 
                      electronic mail messages; or
                          (ii) the electronic mail address of the 
                      recipient was obtained using an automated means 
                      that generates possible electronic mail addresses 
                      by combining names, letters, or numbers into 
                      numerous permutations.
                    (B) Disclaimer.--Nothing in this paragraph creates 
                an ownership or proprietary interest in such electronic 
                mail addresses.
            (2) Automated creation of multiple electronic mail 
        accounts.--It is unlawful for any person to use scripts or other 
        automated means to register for multiple electronic mail 
        accounts or online user accounts from which to transmit to a 
        protected computer, or enable another person to transmit to a 
        protected computer, a commercial electronic mail message that is 
        unlawful under subsection (a).
            (3) Relay or retransmission through unauthorized access.--It 
        is unlawful for any person knowingly to relay or retransmit a 
        commercial electronic mail message that is unlawful under 
        subsection (a) from a protected computer or computer network 
        that such person has accessed without authorization.

    (c) Supplementary Rulemaking Authority.--The Commission shall by 
regulation, pursuant to section 13--
            (1) modify the 10-business-day period under subsection 
        (a)(4)(A) or subsection (a)(4)(B), or both, if the Commission 
        determines that a different period would be more reasonable 
        after taking into account--
                    (A) the purposes of subsection (a);
                    (B) the interests of recipients of commercial 
                electronic mail; and
                    (C) the burdens imposed on senders of lawful 
                commercial electronic mail; and
            (2) specify additional activities or practices to which 
        subsection (b) applies if the Commission determines that those 
        activities or practices are contributing substantially to the 
        proliferation of commercial electronic mail messages that are 
        unlawful under subsection (a).

    (d) Requirement To Place Warning Labels on Commercial Electronic 
Mail Containing Sexually Oriented Material.--
            (1) In general.--No person may initiate in or affecting 
        interstate commerce the transmission, to a protected computer, 
        of any commercial electronic mail message that includes sexually 
        oriented material and--
                    (A) fail to include in subject heading for the 
                electronic mail message the marks or notices prescribed 
                by the Commission under this subsection; or
                    (B) fail to provide that the matter in the message 
                that is initially viewable to the recipient, when the 
                message is opened by any recipient and absent any 
                further actions by the recipient, includes only--
                          (i) to the extent required or authorized 
                      pursuant to paragraph (2), any such marks or 
                      notices;

[[Page 117 STAT. 2710]]

                          (ii) the information required to be included 
                      in the message pursuant to subsection (a)(5); and
                          (iii) instructions on how to access, or a 
                      mechanism to access, the sexually oriented 
                      material.
            (2) Prior affirmative consent.--Paragraph (1) does not apply 
        to the transmission of an electronic mail message if the 
        recipient has given prior affirmative consent to receipt of the 
        message.
            (3) Prescription <<NOTE: Deadline.>> of marks and notices.--
        Not later than 120 days after the date of the enactment of this 
        Act, the Commission in consultation with the Attorney General 
        shall prescribe clearly identifiable marks or notices to be 
        included in or associated with commercial electronic mail that 
        contains sexually oriented material, in order to inform the 
        recipient of that fact and to facilitate filtering of such 
        electronic mail. The <<NOTE: Federal Register, 
        publication.>> Commission shall publish in the Federal Register 
        and provide notice to the public of the marks or notices 
        prescribed under this paragraph.
            (4) Definition.--In this subsection, the term ``sexually 
        oriented material'' means any material that depicts sexually 
        explicit conduct (as that term is defined in section 2256 of 
        title 18, United States Code), unless the depiction constitutes 
        a small and insignificant part of the whole, the remainder of 
        which is not primarily devoted to sexual matters.
            (5) Penalty.--Whoever knowingly violates paragraph (1) shall 
        be fined under title 18, United States Code, or imprisoned not 
        more than 5 years, or both.
SEC. 6. BUSINESSES <<NOTE: 15 USC 7705.>> KNOWINGLY PROMOTED BY 
                    ELECTRONIC MAIL WITH FALSE OR MISLEADING 
                    TRANSMISSION INFORMATION.

    (a) In General.--It is unlawful for a person to promote, or allow 
the promotion of, that person's trade or business, or goods, products, 
property, or services sold, offered for sale, leased or offered for 
lease, or otherwise made available through that trade or business, in a 
commercial electronic mail message the transmission of which is in 
violation of section 5(a)(1) if that person--
            (1) knows, or should have known in the ordinary course of 
        that person's trade or business, that the goods, products, 
        property, or services sold, offered for sale, leased or offered 
        for lease, or otherwise made available through that trade or 
        business were being promoted in such a message;
            (2) received or expected to receive an economic benefit from 
        such promotion; and
            (3) took no reasonable action--
                    (A) to prevent the transmission; or
                    (B) to detect the transmission and report it to the 
                Commission.

    (b) Limited Enforcement Against Third Parties.--
            (1) In general.--Except as provided in paragraph (2), a 
        person (hereinafter referred to as the ``third party'') that 
        provides goods, products, property, or services to another 
        person that violates subsection (a) shall not be held liable for 
        such violation.
            (2) Exception.--Liability for a violation of subsection (a) 
        shall be imputed to a third party that provides goods, products, 
        property, or services to another person that violates subsection 
        (a) if that third party--

[[Page 117 STAT. 2711]]

                    (A) owns, or has a greater than 50 percent ownership 
                or economic interest in, the trade or business of the 
                person that violated subsection (a); or
                    (B)(i) has actual knowledge that goods, products, 
                property, or services are promoted in a commercial 
                electronic mail message the transmission of which is in 
                violation of section 5(a)(1); and
                    (ii) receives, or expects to receive, an economic 
                benefit from such promotion.

    (c) Exclusive Enforcement by FTC.--Subsections (f) and (g) of 
section 7 do not apply to violations of this section.
    (d) Savings Provision.--Except as provided in section 7(f)(8), 
nothing in this section may be construed to limit or prevent any action 
that may be taken under this Act with respect to any violation of any 
other section of this Act.

SEC. 7. <<NOTE: 15 USC 7706.>> ENFORCEMENT GENERALLY.

    (a) Violation Is Unfair or Deceptive Act or Practice.--Except as 
provided in subsection (b), this Act shall be enforced by the Commission 
as if the violation of this Act were an unfair or deceptive act or 
practice proscribed under section 18(a)(1)(B) of the Federal Trade 
Commission Act (15 U.S.C. 57a(a)(1)(B)).
    (b) Enforcement by Certain Other Agencies.--Compliance with this Act 
shall be enforced--
            (1) under section 8 of the Federal Deposit Insurance Act (12 
        U.S.C. 1818), in the case of--
                    (A) national banks, and Federal branches and Federal 
                agencies of foreign banks, by the Office of the 
                Comptroller of the Currency;
                    (B) member banks of the Federal Reserve System 
                (other than national banks), branches and agencies of 
                foreign banks (other than Federal branches, Federal 
                agencies, and insured State branches of foreign banks), 
                commercial lending companies owned or controlled by 
                foreign banks, organizations operating under section 25 
                or 25A of the Federal Reserve Act (12 U.S.C. 601 and 
                611), and bank holding companies, by the Board;
                    (C) banks insured by the Federal Deposit Insurance 
                Corporation (other than members of the Federal Reserve 
                System) and insured State branches of foreign banks, by 
                the Board of Directors of the Federal Deposit Insurance 
                Corporation; and
                    (D) savings associations the deposits of which are 
                insured by the Federal Deposit Insurance Corporation, by 
                the Director of the Office of Thrift Supervision;
            (2) under the Federal Credit Union Act (12 U.S.C. 1751 et 
        seq.) by the Board of the National Credit Union Administration 
        with respect to any Federally insured credit union;
            (3) under the Securities Exchange Act of 1934 (15 U.S.C. 78a 
        et seq.) by the Securities and Exchange Commission with respect 
        to any broker or dealer;
            (4) under the Investment Company Act of 1940 (15 U.S.C. 80a-
        1 et seq.) by the Securities and Exchange Commission with 
        respect to investment companies;
            (5) under the Investment Advisers Act of 1940 (15 U.S.C. 
        80b-1 et seq.) by the Securities and Exchange Commission with 
        respect to investment advisers registered under that Act;

[[Page 117 STAT. 2712]]

            (6) under State insurance law in the case of any person 
        engaged in providing insurance, by the applicable State 
        insurance authority of the State in which the person is 
        domiciled, subject to section 104 of the Gramm-Bliley-Leach Act 
        (15 U.S.C. 6701), except that in any State in which the State 
        insurance authority elects not to exercise this power, the 
        enforcement authority pursuant to this Act shall be exercised by 
        the Commission in accordance with subsection (a);
            (7) under part A of subtitle VII of title 49, United States 
        Code, by the Secretary of Transportation with respect to any air 
        carrier or foreign air carrier subject to that part;
            (8) under the Packers and Stockyards Act, 1921 (7 U.S.C. 181 
        et seq.) (except as provided in section 406 of that Act (7 
        U.S.C. 226, 227)), by the Secretary of Agriculture with respect 
        to any activities subject to that Act;
            (9) under the Farm Credit Act of 1971 (12 U.S.C. 2001 et 
        seq.) by the Farm Credit Administration with respect to any 
        Federal land bank, Federal land bank association, Federal 
        intermediate credit bank, or production credit association; and
            (10) under the Communications Act of 1934 (47 U.S.C. 151 et 
        seq.) by the Federal Communications Commission with respect to 
        any person subject to the provisions of that Act.

    (c) Exercise of Certain Powers.--For the purpose of the exercise by 
any agency referred to in subsection (b) of its powers under any Act 
referred to in that subsection, a violation of this Act is deemed to be 
a violation of a Federal Trade Commission trade regulation rule. In 
addition to its powers under any provision of law specifically referred 
to in subsection (b), each of the agencies referred to in that 
subsection may exercise, for the purpose of enforcing compliance with 
any requirement imposed under this Act, any other authority conferred on 
it by law.
    (d) 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 subtitle 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 subtitle.
    (e) Availability of Cease-and-Desist Orders and Injunctive Relief 
Without Showing of Knowledge.--Notwithstanding any other provision of 
this Act, in any proceeding or action pursuant to subsection (a), (b), 
(c), or (d) of this section to enforce compliance, through an order to 
cease and desist or an injunction, with section 5(a)(1)(C), section 
5(a)(2), clause (ii), (iii), or (iv) of section 5(a)(4)(A), section 
5(b)(1)(A), or section 5(b)(3), neither the Commission nor the Federal 
Communications Commission shall be required to allege or prove the state 
of mind required by such section or subparagraph.
    (f) Enforcement by States.--
            (1) Civil action.--In any case in which the attorney general 
        of a State, or an official or agency 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 any person who

[[Page 117 STAT. 2713]]

        violates paragraph (1) or (2) of section 5(a), who violates 
        section 5(d), or who engages in a pattern or practice that 
        violates paragraph (3), (4), or (5) of section 5(a), of this 
        Act, the attorney general, official, or agency of 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--
                    (A) to enjoin further violation of section 5 of this 
                Act by the defendant; or
                    (B) to obtain damages on behalf of residents of the 
                State, in an amount equal to the greater of--
                          (i) the actual monetary loss suffered by such 
                      residents; or
                          (ii) the amount determined under paragraph 
                      (3).
            (2) Availability of injunctive relief without showing of 
        knowledge.--Notwithstanding any other provision of this Act, in 
        a civil action under paragraph (1)(A) of this subsection, the 
        attorney general, official, or agency of the State shall not be 
        required to allege or prove the state of mind required by 
        section 5(a)(1)(C), section 5(a)(2), clause (ii), (iii), or (iv) 
        of section 5(a)(4)(A), section 5(b)(1)(A), or section 5(b)(3).
            (3) Statutory damages.--
                    (A) In general.--For purposes of paragraph 
                (1)(B)(ii), the amount determined under this paragraph 
                is the amount calculated by multiplying the number of 
                violations (with each separately addressed unlawful 
                message received by or addressed to such residents 
                treated as a separate violation) by up to $250.
                    (B) Limitation.--For any violation of section 5 
                (other than section 5(a)(1)), the amount determined 
                under subparagraph (A) may not exceed $2,000,000.
                    (C) Aggravated damages.--The court may increase a 
                damage award to an amount equal to not more than three 
                times the amount otherwise available under this 
                paragraph if--
                          (i) the court determines that the defendant 
                      committed the violation willfully and knowingly; 
                      or
                          (ii) the defendant's unlawful activity 
                      included one or more of the aggravating violations 
                      set forth in section 5(b).
                    (D) Reduction of damages.--In assessing damages 
                under subparagraph (A), the court may consider whether--
                          (i) the defendant has established and 
                      implemented, with due care, commercially 
                      reasonable practices and procedures designed to 
                      effectively prevent such violations; or
                          (ii) the violation occurred despite 
                      commercially reasonable efforts to maintain 
                      compliance the practices and procedures to which 
                      reference is made in clause (i).
            (4) Attorney fees.--In the case of any successful action 
        under paragraph (1), the court, in its discretion, may award the 
        costs of the action and reasonable attorney fees to the State.
            (5) Rights <<NOTE: Notice. Records.>> of federal 
        regulators.--The State shall serve prior written notice of any 
        action under paragraph (1) upon

[[Page 117 STAT. 2714]]

        the Federal Trade Commission or the appropriate Federal 
        regulator determined under subsection (b) and provide the 
        Commission or appropriate Federal regulator with a copy of its 
        complaint, except in any case in which such prior notice is not 
        feasible, in which case the State shall serve such notice 
        immediately upon instituting such action. The Federal Trade 
        Commission or appropriate Federal regulator shall have the 
        right--
                    (A) to intervene in the action;
                    (B) upon so intervening, to be heard on all matters 
                arising therein;
                    (C) to remove the action to the appropriate United 
                States district court; and
                    (D) to file petitions for appeal.
            (6) 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 evidence.
            (7) Venue; service of process.--
                    (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) maintains a physical place of business.
            (8) Limitation on state action while federal action is 
        pending.--If the Commission, or other appropriate Federal agency 
        under subsection (b), has instituted a civil action or an 
        administrative action for violation of this Act, no State 
        attorney general, or official or agency of a State, may bring an 
        action under this subsection during the pendency of that action 
        against any defendant named in the complaint of the Commission 
        or the other agency for any violation of this Act alleged in the 
        complaint.
            (9) Requisite scienter for certain civil actions.--Except as 
        provided in section 5(a)(1)(C), section 5(a)(2), clause (ii), 
        (iii), or (iv) of section 5(a)(4)(A), section 5(b)(1)(A), or 
        section 5(b)(3), in a civil action brought by a State attorney 
        general, or an official or agency of a State, to recover 
        monetary damages for a violation of this Act, the court shall 
        not grant the relief sought unless the attorney general, 
        official, or agency establishes that the defendant acted with 
        actual knowledge, or knowledge fairly implied on the basis of 
        objective circumstances, of the act or omission that constitutes 
        the violation.

    (g) Action by Provider of Internet Access Service.--
            (1) Action authorized.--A provider of Internet access 
        service adversely affected by a violation of section 5(a)(1), 
        5(b), or 5(d), or a pattern or practice that violates paragraph 
        (2), (3), (4), or (5) of section 5(a), may bring a civil action 
        in

[[Page 117 STAT. 2715]]

        any district court of the United States with jurisdiction over 
        the defendant--
                    (A) to enjoin further violation by the defendant; or
                    (B) to recover damages in an amount equal to the 
                greater of--
                          (i) actual monetary loss incurred by the 
                      provider of Internet access service as a result of 
                      such violation; or
                          (ii) the amount determined under paragraph 
                      (3).
            (2) Special definition of ``procure''.--In any action 
        brought under paragraph (1), this Act shall be applied as if the 
        definition of the term ``procure'' in section 3(12) contained, 
        after ``behalf'' the words ``with actual knowledge, or by 
        consciously avoiding knowing, whether such person is engaging, 
        or will engage, in a pattern or practice that violates this 
        Act''.
            (3) Statutory damages.--
                    (A) In general.--For purposes of paragraph 
                (1)(B)(ii), the amount determined under this paragraph 
                is the amount calculated by multiplying the number of 
                violations (with each separately addressed unlawful 
                message that is transmitted or attempted to be 
                transmitted over the facilities of the provider of 
                Internet access service, or that is transmitted or 
                attempted to be transmitted to an electronic mail 
                address obtained from the provider of Internet access 
                service in violation of section 5(b)(1)(A)(i), treated 
                as a separate violation) by--
                          (i) up to $100, in the case of a violation of 
                      section 5(a)(1); or
                          (ii) up to $25, in the case of any other 
                      violation of section 5.
                    (B) Limitation.--For any violation of section 5 
                (other than section 5(a)(1)), the amount determined 
                under subparagraph (A) may not exceed $1,000,000.
                    (C) Aggravated damages.--The court may increase a 
                damage award to an amount equal to not more than three 
                times the amount otherwise available under this 
                paragraph if--
                          (i) the court determines that the defendant 
                      committed the violation willfully and knowingly; 
                      or
                          (ii) the defendant's unlawful activity 
                      included one or more of the aggravated violations 
                      set forth in section 5(b).
                    (D) Reduction of damages.--In assessing damages 
                under subparagraph (A), the court may consider whether--
                          (i) the defendant has established and 
                      implemented, with due care, commercially 
                      reasonable practices and procedures designed to 
                      effectively prevent such violations; or
                          (ii) the violation occurred despite 
                      commercially reasonable efforts to maintain 
                      compliance with the practices and procedures to 
                      which reference is made in clause (i).
            (4) Attorney fees.--In any action brought pursuant to 
        paragraph (1), the court may, in its discretion, require an 
        undertaking for the payment of the costs of such action, and 
        assess reasonable costs, including reasonable attorneys' fees, 
        against any party.

[[Page 117 STAT. 2716]]

SEC. 8. <<NOTE: 15 USC 7707.>> EFFECT ON OTHER LAWS.

    (a) Federal Law.--(1) Nothing in this Act shall be construed to 
impair the enforcement of section 223 or 231 of the Communications Act 
of 1934 (47 U.S.C. 223 or 231, respectively), 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.
    (2) Nothing in this Act shall be construed to affect in any way the 
Commission's authority to bring enforcement actions under FTC Act for 
materially false or deceptive representations or unfair practices in 
commercial electronic mail messages.
    (b) State Law.--
            (1) In general.--This Act supersedes any statute, 
        regulation, or rule of a State or political subdivision of a 
        State that expressly regulates the use of electronic mail to 
        send commercial messages, except to the extent that any such 
        statute, regulation, or rule prohibits falsity or deception in 
        any portion of a commercial electronic mail message or 
        information attached thereto.
            (2) State law not specific to electronic mail.--This Act 
        shall not be construed to preempt the applicability of--
                    (A) State laws that are not specific to electronic 
                mail, including State trespass, contract, or tort law; 
                or
                    (B) other State laws to the extent that those laws 
                relate to acts of fraud or computer crime.

    (c) No Effect on Policies of Providers of Internet Access Service.--
Nothing in this Act shall be construed to have any effect on the 
lawfulness or unlawfulness, under any other provision of law, of the 
adoption, implementation, or enforcement by a provider of Internet 
access service of a policy of declining to transmit, route, relay, 
handle, or store certain types of electronic mail messages.

SEC. 9. <<NOTE: 15 USC 7708.>> DO-NOT-E-MAIL REGISTRY.

    (a) In General.--Not <<NOTE: Deadline. Reports.>> later than 6 
months after the date of enactment of this Act, the Commission shall 
transmit to the Senate Committee on Commerce, Science, and 
Transportation and the House of Representatives Committee on Energy and 
Commerce a report that--
            (1) sets forth a plan and timetable for establishing a 
        nationwide marketing Do-Not-E-Mail registry;
            (2) includes an explanation of any practical, technical, 
        security, privacy, enforceability, or other concerns that the 
        Commission has regarding such a registry; and
            (3) includes an explanation of how the registry would be 
        applied with respect to children with e-mail accounts.

    (b) Authorization To Implement.--The Commission may establish and 
implement the plan, but not earlier than 9 months after the date of 
enactment of this Act.

SEC. 10. <<NOTE: 15 USC 7709.>> STUDY OF EFFECTS OF COMMERCIAL 
            ELECTRONIC MAIL.

    (a) In General.--Not <<NOTE: Deadline. Reports.>> later than 24 
months after the date of the enactment of this Act, the Commission, in 
consultation with the Department of Justice and other appropriate 
agencies, shall submit a report to the Congress that provides a detailed 
analysis of the effectiveness and enforcement of the provisions of this 
Act and the need (if any) for the Congress to modify such provisions.

[[Page 117 STAT. 2717]]

    (b) Required Analysis.--The Commission shall include in the report 
required by subsection (a)--
            (1) an analysis of the extent to which technological and 
        marketplace developments, including changes in the nature of the 
        devices through which consumers access their electronic mail 
        messages, may affect the practicality and effectiveness of the 
        provisions of this Act;
            (2) analysis and recommendations concerning how to address 
        commercial electronic mail that originates in or is transmitted 
        through or to facilities or computers in other nations, 
        including initiatives or policy positions that the Federal 
        Government could pursue through international negotiations, 
        fora, organizations, or institutions; and
            (3) analysis and recommendations concerning options for 
        protecting consumers, including children, from the receipt and 
        viewing of commercial electronic mail that is obscene or 
        pornographic.
SEC. 11. IMPROVING <<NOTE: Reports. Deadlines. Procedures. 15 USC 
                      7710.>> ENFORCEMENT BY PROVIDING REWARDS FOR 
                      INFORMATION ABOUT VIOLATIONS; LABELING.

    The Commission shall transmit to the Senate Committee on Commerce, 
Science, and Transportation and the House of Representatives Committee 
on Energy and Commerce--
            (1) a report, within 9 months after the date of enactment of 
        this Act, that sets forth a system for rewarding those who 
        supply information about violations of this Act, including--
                    (A) procedures for the Commission to grant a reward 
                of not less than 20 percent of the total civil penalty 
                collected for a violation of this Act to the first 
                person that--
                          (i) identifies the person in violation of this 
                      Act; and
                          (ii) supplies information that leads to the 
                      successful collection of a civil penalty by the 
                      Commission; and
                    (B) procedures to minimize the burden of submitting 
                a complaint to the Commission concerning violations of 
                this Act, including procedures to allow the electronic 
                submission of complaints to the Commission; and
            (2) a report, within 18 months after the date of enactment 
        of this Act, that sets forth a plan for requiring commercial 
        electronic mail to be identifiable from its subject line, by 
        means of compliance with Internet Engineering Task Force 
        Standards, the use of the characters ``ADV'' in the subject 
        line, or other comparable identifier, or an explanation of any 
        concerns the Commission has that cause the Commission to 
        recommend against the plan.

SEC. 12. RESTRICTIONS ON OTHER TRANSMISSIONS.

    Section 227(b)(1) of the Communications Act of 1934 (47 U.S.C. 
227(b)(1)) is amended, in the matter preceding subparagraph (A), by 
inserting ``, or any person outside the United States if the recipient 
is within the United States'' after ``United States''.

SEC. 13. <<NOTE: 15 USC 7711.>> REGULATIONS.

    (a) In General.--The Commission may issue regulations to implement 
the provisions of this Act (not including the amendments made by 
sections 4 and 12). Any such regulations shall be issued in accordance 
with section 553 of title 5, United States Code.

[[Page 117 STAT. 2718]]

    (b) Limitation.--Subsection (a) may not be construed to authorize 
the Commission to establish a requirement pursuant to section 5(a)(5)(A) 
to include any specific words, characters, marks, or labels in a 
commercial electronic mail message, or to include the identification 
required by section 5(a)(5)(A) in any particular part of such a mail 
message (such as the subject line or body).

SEC. 14. <<NOTE: 15 USC 7712.>> APPLICATION TO WIRELESS.

    (a) Effect on Other Law.--Nothing in this Act shall be interpreted 
to preclude or override the applicability of section 227 of the 
Communications Act of 1934 (47 U.S.C. 227) or the rules prescribed under 
section 3 of the Telemarketing and Consumer Fraud and Abuse Prevention 
Act (15 U.S.C. 6102).
    (b) FCC <<NOTE: Deadline.>> Rulemaking.--The Federal Communications 
Commission, in consultation with the Federal Trade Commission, shall 
promulgate rules within 270 days to protect consumers from unwanted 
mobile service commercial messages. The Federal Communications 
Commission, in promulgating the rules, shall, to the extent consistent 
with subsection (c)--
            (1) provide subscribers to commercial mobile services the 
        ability to avoid receiving mobile service commercial messages 
        unless the subscriber has provided express prior authorization 
        to the sender, except as provided in paragraph (3);
            (2) allow recipients of mobile service commercial messages 
        to indicate electronically a desire not to receive future mobile 
        service commercial messages from the sender;
            (3) take into consideration, in determining whether to 
        subject providers of commercial mobile services to paragraph 
        (1), the relationship that exists between providers of such 
        services and their subscribers, but if the Commission determines 
        that such providers should not be subject to paragraph (1), the 
        rules shall require such providers, in addition to complying 
        with the other provisions of this Act, to allow subscribers to 
        indicate a desire not to receive future mobile service 
        commercial messages from the provider--
                    (A) at the time of subscribing to such service; and
                    (B) in any billing mechanism; and
            (4) determine how a sender of mobile service commercial 
        messages may comply with the provisions of this Act, considering 
        the unique technical aspects, including the functional and 
        character limitations, of devices that receive such messages.

    (c) Other Factors Considered.--The Federal Communications Commission 
shall consider the ability of a sender of a commercial electronic mail 
message to reasonably determine that the message is a mobile service 
commercial message.
    (d) Mobile Service Commercial Message Defined.--In this section, the 
term ``mobile service commercial message'' means a commercial electronic 
mail message that is transmitted directly to a wireless device that is 
utilized by a subscriber of commercial mobile service (as such term is 
defined in section 332(d) of the Communications Act of 1934 (47 U.S.C. 
332(d))) in connection with such service.

SEC. 15. <<NOTE: 15 USC 7713.>> SEPARABILITY.

    If any provision of this Act or the application thereof to any 
person or circumstance is held invalid, the remainder of this Act and 
the application of such provision to other persons or circumstances 
shall not be affected.

[[Page 117 STAT. 2719]]

SEC. 16. <<NOTE: 15 USC 7701 note.>> EFFECTIVE DATE.

    The provisions of this Act, other than section 9, shall take effect 
on January 1, 2004.

    Approved December 16, 2003.

LEGISLATIVE HISTORY--S. 877:
---------------------------------------------------------------------------

SENATE REPORTS: No. 108-102 (Comm. on Commerce, Science, and 
Transportation).
CONGRESSIONAL RECORD, Vol. 149 (2003):
            Oct. 22, considered and passed Senate.
            Nov. 21, considered and passed House, amended.
            Nov. 25, Senate concurred in House amendment with an 
                amendment.
            Dec. 8, House conccurred in Senate amendment.

                                  <all>