HR 718, Unsolicited Commercial Electronic Mail Act of 2001.
Amendment in the Nature of a Substitute offered by Rep. Heather Wilson (R-NM) and Rep. Gene Green (D-TX).
Date: March 28, 2001.

Editor's Notes:
 • The office of Rep. Wilson kindly provided Tech Law Journal with a PDF copy of this amendment.
 • Tech Law Journal converted this PDF version into HTML. Several features were eliminated during the conversion, including pagination, line numbering, and double spacing.
 • This amendment was adopted by the House Commerce Committee by a voice vote without opposition; then, the bill, as amended, was adopted by the House Commerce Committee by a voice vote without opposition.

AMENDMENT IN THE NATURE OF A SUBSTITUTE
TO H.R. 718
OFFERED BY MRS. WILSON OR MR. GREEN

Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Unsolicited Commercial Electronic Mail Act of 2001’’.

SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.

(a) FINDINGS.—The Congress finds the following:

(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 Internet service providers from having a reasonably predictable, efficient, and economical online experience.

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

(4) 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.

(5) Unsolicited commercial electronic mail may impose significant monetary costs on 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 institutions can handle without further investment. The sending of such mail is increasingly and negatively affecting the quality of service provided to customers of Internet access service, and shifting costs from the sender of the advertisement to the Internet access service.

(6) While some senders of unsolicited commercial electronic mail messages provide simple and reliable ways for recipients to reject (or ‘‘opt-out’’ of) receipt of unsolicited 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.

(7) An increasing number of senders of unsolicited commercial electronic 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 electronic mail collect or harvest electronic 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 electronic 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.

(b) CONGRESSIONAL DETERMINATION OF PUBLIC POLICY.—On the basis of the findings in subsection (a), the Congress determines that—

(1) there is substantial government interest in regulation of unsolicited commercial electronic mail;

(2) Internet service providers should not be compelled to bear the costs of unsolicited commercial electronic mail without compensation from the sender; and

(3) recipients of unsolicited commercial electronic mail have a right to decline to receive or have their children receive unsolicited commercial electronic mail.

SEC. 3. DEFINITIONS.

In this Act:

(1) AFFILIATE.—The term ‘‘affiliate’’ means, with respect to an entity, any other entity that—

(A) controls, is controlled by, or is under common control with such entity; and

(B) provides marketing information to, receives marketing information from, or shares marking information with such entity.

(2) CHILDREN.—The term ‘‘children’’ includes natural children, stepchildren, adopted children, and children who are wards of or in custody of the parent, who have not attained the age of 18 and who reside with the parent or are under his or her care, custody, or supervision.

(3) COMMERCIAL ELECTRONIC MAIL MESSAGE.—The term ‘‘commercial electronic mail message’’ means any electronic mail message that primarily advertises or promotes the commercial availability of a product or service for profit or invites the recipient to view content on an Internet web site that is operated for a commercial purpose. An electronic mail message shall not be considered to be a commercial electronic mail message solely because such message includes a reference to a commercial entity that serves to identify the initiator.

(4) COMMISSION.—The term ‘‘Commission’’ means the Federal Trade Commission.

(5) 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.

(6) ELECTRONIC MAIL ADDRESS.—

(A) IN GENERAL.—The term ‘‘electronic mail address’’ means a destination (commonly expressed as a string of characters) to which electronic mail can be sent or delivered.

(B) INCLUSION.—In the case of the Internet, the term ‘‘electronic mail address’’ may include an electronic 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’’).

(7) FTC ACT.—The term ‘‘FTC Act’’ means the Federal Trade Commission Act (15 U.S.C. 41 et seq.).

(8) INITIATE.—The term ‘‘initiate’’, when used with respect to a commercial electronic mail message, means to originate such message or to procure the origination of such message.

(9) INITIATOR.—The term ‘‘initiator’’, when used with respect to a commercial electronic mail message, means the person who initiates such message. Such term does not include a provider of an Internet access service, or any other person, whose role with respect to the message is limited to the transmission, routing, relaying, handling, or storing, through an automatic technical process, of a message originated by others.

(10) INTERNET.—The term ‘‘Internet’’ has the meaning given that term in section 231(e)(3) of the Communications Act of 1934 (47 U.S.C. 231(e)(3)).

(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) RECIPIENT CONSENT.—The term ‘‘recipient consent’’, when used with respect to a commercial electronic mail message, means that—

(A) the message falls within the scope of an express and unambiguous invitation or consent granted by the recipient and not subsequently revoked;

(B) the recipient had clear and conspicuous notice, at the time such invitation or consent was granted, of—

(i) the fact that the recipient was granting the invitation or consent;

(ii) the scope of the invitation or consent, including what types of commercial electronic mail messages would be covered by the invitation or consent and what senders or types of senders, if any, other than the party to whom the invitation or consent was communicated would be covered by the invitation or consent; and

(iii) a reasonable and effective mechanism for revoking the invitation or consent; and

(C) the recipient has not, after granting the invitation or consent, submitted a request under section 5(a)(1) not to receive unsolicited commercial electronic mail messages from the initiator.

(13) PRE-EXISTING BUSINESS RELATIONSHIP.—The term ‘‘pre-existing business relationship’’ means, when used with respect to the initiator and recipient of a commercial electronic mail message, that—

(A) within the 5-year period ending upon receipt of such message, there has been a business transaction (including a transaction involving the provision, free of charge, of information, goods, or services, that were requested by the recipient) between—

(i) the initiator or any affiliate of the initiator; and

(ii) the recipient; and

(B) the recipient was, at the time of such transaction or thereafter or in the transmission of the commercial electronic mail message, provided a clear and conspicuous notice of an opportunity not to receive further messages from the initiator and any affiliates of the initiator and has not exercised such opportunity.

(14) RECIPIENT.—The term ‘‘recipient’’, when used with respect to a commercial electronic mail message, means the addressee of such message. If an addressee of a commercial electronic mail message has one or more electronic mail addresses in addition to the address to which the message was addressed, the addressee shall be treated as a separate recipient with respect to each such address.

(15) UNSOLICITED COMMERCIAL ELECTRONIC MAIL MESSAGE.—The term ‘‘unsolicited commercial electronic mail message’’ means any commercial electronic mail message that is sent to a recipient—

(A) without prior recipient consent; and

(B)(i) with whom the initiator does not have a pre-existing business relationship;

(ii) by an initiator or any affiliate of the initiator after the recipient requests, pursuant to section 5(a)(1), not to receive further commercial electronic mail messages from that initiator; or

(iii) by a person or any affiliate of the person after the expiration of a reasonable period of time after the recipient requests, pursuant to section 5(a)(2), to be removed from the distribution lists under the control of a person.

SEC. 4. CRIMINAL PENALTY FOR UNSOLICITED COMMERCIAL ELECTRONIC MAIL CONTAINING FRAUDULENT ROUTING INFORMATION.

Section 1030 of title 18, United States Code, is amended—

(1) in subsection (a)(5)—

(A) in subparagraph (B), by striking ‘‘or’’ at the end;

(B) in subparagraph (C), by inserting ‘‘or’’ after the semicolon at the end; and

(C) by adding at the end the following new subparagraph:

‘‘(D) intentionally initiates the transmission of any unsolicited commercial electronic mail message to a protected computer in the United States with knowledge that any domain name, header information, date or time stamp, originating electronic mail address, or other information identifying the initiator or the routing of such message, that is contained in or accompanies such message, is false or inaccurate;’’;

(2) in subsection (c)(2)(A)—

(A) by inserting ‘‘(i)’’ after ‘‘in the case of’’; and

(B) by inserting before ‘‘; and’’ the following: ‘‘, or (ii) an offense under subsection (a)(5)(D) of this section’’; and

(3) in subsection (e)—

(A) by striking ‘‘and’’ at the end of paragraph (8);

(B) by striking the period at the end of paragraph (9) and inserting a semicolon; and (C) by adding at the end the following new paragraph:

‘‘(10) the terms ‘initiate’, ‘initiator’, ‘unsolicited commercial electronic mail message’, and ‘domain name’ have the meanings given such terms in section 3 of the Unsolicited Commercial Electronic Mail Act of 2001.’’.

SEC. 5. OTHER PROTECTIONS AGAINST UNSOLICITED COMMERCIAL ELECTRONIC MAIL.

(a) REQUIREMENTS FOR TRANSMISSION OF MESSAGES.—

(1) INCLUSION OF RETURN ADDRESS IN COMMERCIAL ELECTRONIC MAIL.—It shall be unlawful for any person or affiliate of such person to initiate the transmission of a commercial electronic mail message to any person within the United States unless such message contains a valid electronic mail address, conspicuously displayed, to which a recipient may send a reply to the initiator to indicate a desire not to receive any further messages from the initiator and any affiliates of the initiator.

(2) PROHIBITION OF TRANSMISSION OF UNSOLICITED COMMERCIAL ELECTRONIC MAIL AFTER OBJECTION.—If a recipient makes a request to a person to be removed from all distribution lists under the control of such person, after receipt of such request—

(A) it shall be unlawful for such person or any affiliate of such person to initiate the transmission of an unsolicited commercial electronic mail message to such a recipient within the United States after the expiration of a reasonable period of time for removal from such lists;

(B) such person and affiliates (and the agents or assigns of the person or affiliate) shall delete or suppress the electronic mail addresses of the recipient from all mailing lists owned or controlled by such person or affiliate (or such agents or assigns) within a reasonable period of time for such deletion or suppression; and

(C) it shall be unlawful for such person or affiliate (or such agents or assigns) to sell, lease, exchange, license, or engage in any other transaction involving mailing lists bearing the electronic mail addresses of the recipient.

(3) INCLUSION OF IDENTIFIER, OPT-OUT, AND PHYSICAL ADDRESS IN UNSOLICITED COMMERCIAL ELECTRONIC MAIL.—It shall be unlawful for any person to initiate the transmission of any unsolicited commercial electronic mail message to any person within the United States unless the message provides, in a manner that is clear and conspicuous to the recipient—

(A) identification that the message is an unsolicited commercial electronic mail message;

(B) notice of the opportunity under paragraph (2) to decline to receive further unsolicited commercial electronic mail messages from the initiator or any affiliate of the initiator; and

(C) the physical mailing address of the initiator.

(4) TREATMENT OF INTERNAL OPT-OUT LISTS.—If the policy of a provider of Internet access service requires compensation specifically for the transmission of unsolicited commercial electronic mail messages into its system, it shall be unlawful for the provider to fail to provide an option to its subscribers not to receive any unsolicited commercial electronic mail messages, except that such option shall not be required for any subscriber who has agreed to receive unsolicited commercial electronic mail messages in exchange for discounted or free Internet access service.

(5) AFFIRMATIVE DEFENSE.—It shall be an affirmative defense in any action or proceeding brought for a violation of any paragraph of this subsection that the violation was not intentional.

(b) CONDITIONS FOR ENFORCEMENT BY PROVIDERS OF INTERNET ACCESS SERVICE.—

(1) AUTHORITY TO OPT OUT.—After the expiration of a reasonable period of time for taking any action necessary to comply with a request under subparagraph (B) that begins upon the receipt of such a request, it shall be unlawful for a person or any affiliate of such person to initiate the transmission of an unsolicited commercial electronic mail message, to any recipient within the United States, that uses the equipment of a provider of Internet access service to recipients of electronic mail messages for such transmission, if such provider—

(A)(i) has in effect a policy that meets the requirements under paragraph (2); or

(ii) has received a significant number of complaints from its bona fide subscribers that they have received unsolicited commercial electronic mail messages from such person; and

(B) makes a request to such person by means of an electronic mail message not to use the equipment of the provider for the transmission of any unsolicited commercial electronic mail message.

(2) UCE POLICY.—A policy of a provider of Internet access service to recipients meets the requirements under this paragraph only if—

(A) it is a policy regarding the use of the equipment of the provider for the transmission of unsolicited commercial electronic mail messages that prohibits the transmission, using such equipment, of all such messages;

(B) the provider of Internet access service is making a good faith effort to block the transmission of all unsolicited commercial electronic mail messages that use the equipment of provider for such transmission;

(C) the policy is made publicly available by clear and conspicuous posting on a World Wide Web site of the provider of Internet access service, which has an Internet domain name that is identical to the Internet domain name of the electronic mail address to which the prohibition referred to in subparagraph (A) applies; and (D) the provider of Internet access service informs each subscriber to such service of the policy.

(c) RULE OF CONSTRUCTION.—Nothing in this Act shall be construed—

(1) to prevent or limit, in any way, a provider of Internet access service from adopting a policy regarding commercial or other electronic mail, including a policy of declining to transmit certain types of electronic mail messages, and from enforcing such policy through technical means, through contract, or pursuant to any remedy available under any other provision of Federal, State, or local criminal or civil law; or

(2) to render lawful any such policy that is unlawful under any other provision of law.

(d) PROTECTION OF INTERNET ACCESS SERVICE PROVIDERS GOOD FAITH EFFORTS TO BLOCK TRANSMISSIONS.—A provider of Internet access service shall not be liable, under any Federal, State, or local civil or criminal law, for any action it takes in good faith to block the transmission or receipt of unsolicited commercial electronic mail messages.

SEC. 6. ENFORCEMENT.

(a) ENFORCEMENT THROUGH FTC ACT.—

(1) ENFORCEMENT.—Except as otherwise provided in this Act, section 5 shall be enforced by the Commission under the FTC Act.

(2) UNFAIR OR DECEPTIVE PRACTICE.—Any violation of section 5 shall be treated as a violation of a rule under section 18 of the FTC Act (15 U.S.C. 57a) regarding unfair or deceptive acts or practices.

(3) SCOPE OF COMMISSION ENFORCEMENT.—The Commission shall prevent any person from violating section 5 of 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 FTC Act were incorporated into and made a part of this section. Any person who violates section 5 of this Act shall be subject to the penalties and entitled to the privileges and immunities provided in the FTC 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 FTC Act were incorporated into and made a part of this section.

(4) PROHIBITION OF REGULATIONS.—Neither the Commission nor any other Federal department or agency shall have any authority to issue any regulations to implement the provisions of this Act.

(b) PRIVATE RIGHT OF ACTION.—

(1) ACTIONS AUTHORIZED.—A recipient or a provider of Internet access service may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State, or may bring in an appropriate Federal court if such laws or rules do not so permit, either or both of the following actions:

(A) An action based on a violation of section 5 to enjoin such violation.

(B) An action to recover for actual monetary loss from such a violation in an amount equal to the greater of—

(i) the amount of such actual monetary loss; or

(ii) $500 for each such violation, not to exceed a total of $50,000.

(2) ADDITIONAL REMEDIES.—If the court finds that the defendant willfully, knowingly, or repeatedly violated section 5, the court may, in its discretion, increase the amount of the award to an amount equal to not more than three times the amount available under paragraph (1).

(3) ATTORNEY FEES.—In any such action, 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.

(4) PROHIBITION OF CLASS ACTIONS.—A private action arising under this subsection may not be brought as a plaintiff class action pursuant to the Federal Rules of Civil Procedure nor as a plaintiff class action pursuant to the law or rules of procedure of any State.

(5) PROTECTION OF TRADE SECRETS.—At the request of any party to an action brought pursuant to this subsection or any other participant in such an action, the court may, in its discretion, issue protective orders and conduct legal proceedings in such a way as to protect the secrecy and security of the computer, computer network, computer data, computer program, and computer software involved in order to prevent possible recurrence of the same or a similar act by another person and to protect any trade secrets of any such party or participant.

(c) ENFORCEMENT BY STATES.—

(1) IN GENERAL.—

(A) CIVIL ACTIONS.—In any case in which the attorney general of a State has reason to 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 5 of this Act, the State may bring civil action on behalf of the residents of the State in an appropriate court of that State, or in a district court of the United States of appropriate jurisdiction for any or all of the following relief:

(i) INJUNCTION.—To enjoin that practice.

(ii) COMPLIANCE ENFORCEMENT.—To enforce compliance with the provisions of section 5.

(iii) DAMAGES.—To recover actual monetary loss or receive $500 in damages for each violation, except that if the court finds that the defendant willfully or knowingly violated section 5, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount otherwise available under this clause.

(B) LIMITATION ON MONETARY DAMAGES.—All monetary amounts recovered or received by settlement or judgment in an action under this paragraph shall be paid directly to the persons who incurred losses or suffered damages as a result of the violation under section 5 for which the action was brought, and no such amounts may be retained by the State or may be used directly or indirectly to offset the cost of such litigation.

(C) NOTICE.—

(i) IN GENERAL.—Before filing an action under subparagraph (A), the attorney general of the State involved shall provide to the Commission—

(I) written notice of that action; and

(II) a copy of the complaint for that action.

(ii) EXEMPTION.—

(I) IN GENERAL.—Clause (i) shall not apply with respect to the filing of an action by an attorney general of a State under this subsection, if the 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 subclause (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.

(2) INTERVENTION.—

(A) IN GENERAL.—On receiving notice under paragraph (1)(B), the Commission shall have the right to intervene in the action that is the subject of the notice.

(B) EFFECT OF INTERVENTION.—If the Commission intervenes in an action under paragraph (1), it shall have the right—

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

(ii) to file a petition for appeal.

(3) CONSTRUCTION.—For purposes of bringing any civil action under paragraph (1), nothing in this Act shall be construed to prevent an attorney general of a State from exercising the powers conferred on the attorney general by the laws of that State to—

(A) conduct investigations;

(B) administer oaths or affirmations; or

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

(4) 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) may be found.

SEC. 7. EFFECT ON OTHER LAWS.

(a) FEDERAL 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 law or any State criminal law regarding obscenity or the sexual exploitation of children.

(b) STATE LAW.—No State or local government may impose any civil liability for commercial activities or actions in interstate or foreign commerce in connection with an activity or action described in section 5 of this Act that is inconsistent with the treatment of such activities or actions under this Act, except that this Act shall not preempt any civil action under—

(1) State trespass or contract law; or

(2) any provision of Federal, State, or local criminal law or any civil remedy available under such law that relates to acts of computer fraud or abuse arising from the unauthorized transmission of unsolicited commercial electronic mail messages.

SEC. 8. STUDY OF EFFECTS OF UNSOLICITED COMMERCIAL ELECTRONIC MAIL.

Not later than 18 months after the date of the enactment of this Act, the Federal Trade Commission 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.

SEC. 9. SEVERABILITY.

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.

SEC. 10. EFFECTIVE DATE.

The provisions of this Act shall take effect 60 days after the date of the enactment of this Act.