CANSPAM2003

An Act

To regulate interstate commerce by imposing limitations and penalties on the transmission of unsolicited commercial electronic mail via the Internet.

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003’’, or the ‘‘CANSPAM Act of 2003’’.

SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.

(a): FINDINGS.—The Congress finds the following:
(1): Electronic mail has become an extremely importantand 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 arethreatened 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 mailmay 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 messagesalso 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 thatmany recipients may consider vulgar or pornographic in nature.
(6): The growth in unsolicited commercial electronic mailimposes 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

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institutions can handle without further investment in infrastructure.

(7): Many senders of unsolicited commercial electronic mailpurposefully disguise the source of such mail.
(8): Many senders of unsolicited commercial electronic mailpurposefully 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 mes-sages 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 electronicmail 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 regu-late 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 andabuse 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 regulationof commercial electronic mail on a nationwide basis;
(2): senders of commercial electronic mail should not mis-lead recipients as to the source or content of such mail; and
(3): recipients of commercial electronic mail have a rightto decline to receive additional commercial electronic mail from the same source.

SEC. 3. 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 themessage, 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 theparty to which the recipient communicated such consent, the recipient was given clear and conspicuous notice at

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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 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

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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.

(iii) to provide—

(I): notification concerning a change in theterms 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 bal-ance 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 anemployment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled; or
(v): to deliver goods or services, including productupdates 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 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:

‘‘§ 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 commer

cial 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

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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;

‘‘(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 commer

cial 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 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.

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‘‘(2) PROCEDURES.—The 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 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.
(c): SENSE OF CONGRESS.—It is the sense of Congress that—
(1): Spam has become the method of choice for those whodistribute 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 lawenforcement 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 PROTECTIONS FOR USERS OF COMMERCIAL ELECTRONIC MAIL.

(a): REQUIREMENTS FOR TRANSMISSION OF MESSAGES.—
(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

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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)).

(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 tothe 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 senderto 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 senderto 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

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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 knowsthat 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).

(B): Subparagraph (A)(i) does not apply to the transmissionof 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 wasobtained 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

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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 recipientwas 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—

(d): REQUIREMENT TO PLACE WARNING LABELS ON COMMERCIAL ELECTRONIC MAIL CONTAINING SEXUALLY ORIENTED MATERIAL.—

SEC. 6. BUSINESSES KNOWINGLY PROMOTED BY ELECTRONIC MAIL WITH FALSE OR MISLEADING TRANSMISSION INFORMATION.

(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. 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)).
(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.

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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 Actby the defendant; or
(B): to obtain damages on behalf of residents of theState, in an amount equal to the greater of—

(i) the actual monetary loss suffered by such resi-dents; or

(ii) the amount determined under paragraph (3).

(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 OF FEDERAL REGULATORS.—The State shall serve prior written notice of any action under paragraph (1) upon

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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 mattersarising therein;
(C): to remove the action to the appropriate UnitedStates district court; and

(D) to file petitions for appeal.

(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

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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 thegreater of—

(i) actual monetary loss incurred by the providerof Internet access service as a result of such violation; or

(ii) the amount determined under paragraph (3).

(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.

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SEC. 8. 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.
(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. DO-NOT-E-MAIL REGISTRY.

(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. STUDY OF EFFECTS OF COMMERCIAL ELECTRONIC MAIL.

(a): IN GENERAL.—Not 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.

(b): REQUIRED ANALYSIS.—The Commission shall include in the report required by subsection (a)—

SEC. 11. IMPROVING 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—

(2): a report, within 18 months after the date of enactmentof 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. REGULATIONS.

(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. 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).
(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. 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.

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SEC. 16. EFFECTIVE DATE.

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

Speaker of the House of Representatives.

Vice President of the United States and President of the Senate.

An Act

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S. 877

One Hundred Eighth Congress of the United States of America

Begun and held at the City of Washington on Tuesday, the seventh day of January, two thousand and three