To reduce the proliferation of unsolicited commercial electronic mail.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as ‘The Reduction of Unsolicited Commercial Email Act.’
(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.
(3) 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.
(4) Unsolicited commercial electronic mail can be a mechanism through which businesses advertise and attract customers in the online environment.
(5) The receipt of unsolicited commercial electronic mail may result in costs and inconvenience 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.
(6) Unsolicited commercial electronic mail may impose 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 institutions can handle without further investment in infrastructure.
(7) Some unsolicited commercial electronic mail contains material that many recipients may consider vulgar or pornographic in nature, or material that would otherwise be inappropriate for consumption by a minor.
(8) 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, refuse to honor the requests of recipients not to receive electronic mail from such senders in the future, or engage in deception by providing no or useless contact information.
(9) 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.
(10) An increasing number of senders of unsolicited commercial electronic mail purposefully include misleading information in the message’s subject lines in order to induce the recipients to view the messages.
(11) Many consumers are outraged over the proliferation of nuisance and often-offensive electronic mail messages.
(12) Businesses also have complained to that unsolicited commercial electronic mail is a nuisance, is an invasion of privacy, and interferes with interstate commerce.
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.
Electronic mail filtering technology may provide a reasonable means to block unsolicited commercial electronic mail messages.
(1) There is a substantial government interest in regulation of unsolicited commercial electronic mail;
(2) Senders of unsolicited commercial electronic mail should not mislead recipients as to the source or content of such mail; and
(3) Recipients of unsolicited commercial electronic mail have a right to decline to receive additional unsolicited commercial electronic mail from the same source.
(a) AMENDMENT- Title II of the Communications Act of 1934 (47 U.S.C. 201 et seq.) is amended by adding at the end of Section 227 the following new section, and renumbering section 228 et seq. as necessary:
(a) DEFINITIONS - As used in this section—
(1) ELECTRONIC MAIL SERVICE PROVIDER. —
The term ‘‘electronic mail service provider’’ means any person, business, or organization qualified to do business in any State that provides registered users the ability to send or receive electronic mail through equipment located in the United States and that is an intermediary in sending or receiving electronic mail.
(2) INITIATION. —The term ‘‘initiation’’ means, with respect to an electronic mail advertisement, the action by the initial sender of the electronic mail advertisement. Such term does not refer to the actions of any intervening electronic mail service provider that may handle or retransmit the electronic message.
(3) REGISTERED USER. —The term ‘‘registered user’’ means any individual, corporation, or other entity that maintains an electronic mail address with an electronic mail service provider.
(4) ELECTRONICALLY MAIL; CAUSE TO BE ELECTRONICALLY MAILED. —The terms ‘‘electronically mail’’ and ‘‘cause to be electronically mailed’’ do not include or refer to the transmission of any documents by a telecommunications utility or Inter-net service provider to the extent that the tele-communications utility or Internet service provider merely carries that transmission over its network.
(5) UNSOLICITED COMMERCIAL ELECTRONIC MAIL. —The term ‘‘unsolicited commercial electronic mail” means any electronically mailed document or message consisting of advertising material for the lease, sale, rental, gift offer, promotion, or other disposition of any realty, goods, services, or extension of credit that meet both of the following requirements:
(A) The documents or messages are addressed to a recipient with whom the initiator does not have an existing or prior business or personal relationship.
(B) The documents or messages are not sent at the request of, or with the express consent of, the recipient.
(b) REQUIREMENT REGARDING USE OF EQUIPMENT IN UNITED STATES. —
(1) IN GENERAL. —This section shall apply when the unsolicited electronically mailed documents or messages are delivered to a resident of the United States via an electronic mail service provider’s service or equipment located in the United States.
(c) SUBJECT LINE REQUIREMENTS. —
(1) ADVERTISEMENTS. —No person or entity conducting business in the United States may electronically mail, or cause to be electronically mailed, any electronic document or message consisting of unsolicited advertising material for the lease, sale, rental, gift offer, promotion, or other disposition of any realty, goods, services, or extension of credit unless the subject line of each and every electronic document or message includes ‘‘ADV:’’ as the first four characters.
(2) ADULT ADVERTISEMENTS. —If such electronic documents or messages contain information that consists of unsolicited advertising material for the lease, sale, rental, gift offer, promotion, or other disposition of any realty, goods, services, or extension of credit, that may only be viewed, purchased, rented, leased, or held in possession by an individual 18 years of age and older, the subject line of each and every message shall include ‘‘ADULTADV:’’ as the first nine characters.
(3) REGULATIONS; EXEMPTIONS AND OTHER PROVISIONS-
The Commission shall prescribe regulations to implement the requirements of this subsection. In implementing the requirements of this subsection, the Commission—
‘(A) shall consider prescribing regulations to allow businesses to avoid receiving any unsolicited commercial electronic mail to which they have not given their prior express consent; and
‘(B) may, by rule or order, exempt from the requirements of paragraphs (1) and (2) of this subsection, subject to such conditions as the Commission may prescribe—
‘(i) electronic mail messages that are not made for a commercial purpose; and
‘(ii) such classes or categories of electronic mail messages made for commercial purposes as the Commission determines—
‘(I) will not adversely affect the privacy rights that this subsection is intended to protect; and
‘(II) do not include the transmission of any unsolicited advertisement.
‘(4) PRIVATE RIGHT OF ACTION- A person or entity that has received more than one unsolicited commercial mail message within any 12-month period by or on behalf of the same entity in violation of subsection (c)(1) or (c)(2) of this section or the regulations prescribed under this section may, if otherwise permitted by the laws or rules of court of a State bring in an appropriate court of that State—
‘(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,
‘(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or
‘(C) both such actions.
It shall be an affirmative defense in any action brought under this paragraph that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent unsolicited commercial mail messages in violation of subsection (c)(1) or (c)(2) of this section or the regulations prescribed under this section. If the court finds that the defendant willfully or knowingly violated subsection (c)(1) or (c)(2) or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.
‘(6) RELATION TO SUBPARAGRAPH (3)(B)- The provisions of subparagraph (3)(b) of this subsection shall not be construed to permit a communication prohibited by paragraphs (1) and (2) of this subsection.
‘(d) Protection of Subscriber Privacy Rights-
‘(1) RULEMAKING PROCEEDING REQUIRED- Within 120 days after the date of enactment of this section, the Commission shall initiate a rulemaking proceeding concerning the need to protect residential and commercial internet users’ privacy rights to avoid receiving unsolicited commercial electronic mail to which they object.
The proceeding shall—
‘(A) compare and evaluate alternative methods and procedures (including the use of electronic databases, internet network technologies, special electronic mail message markings, industry-based or company-specific ‘do not email’ systems, and any other alternatives, individually or in combination) for their effectiveness in protecting such privacy rights, and in terms of their cost and other advantages and disadvantages;
‘(B) evaluate the categories of public and private entities that would have the capacity to establish and administer such methods and procedures;
‘(C) consider whether there is a need for additional Commission authority to further restrict unsolicited commercial electronic mail solicitations, including those documents or messages exempted under subsection (c)(3)(B) of this section, and, if such a finding is made and supported by the record, propose specific restrictions to the Congress; and
‘(D) develop proposed regulations to implement the methods and procedures that the Commission determines are most effective and efficient to accomplish the purposes of this section.
The regulations shall contain—
(i) a fine of not less than $500 per violation levied against any individual or entity electronically mailing or causing to be electronically mailed unsolicited commercial electronic mail that violates the requirements of subsection (c)(1) or (c)(2) of this section, and
(ii) a [reward? bounty?] of not less than 10% of the total fine levied, which shall be paid to the first individual or entity that supplies information that—
(I) identifies the individual or entity in violation of subsection (c)(1) or (c)(2) of this section, and
(II) leads to the successful collection of the fine or fines specified in subsection (d)(1)(D)(i) of this section
‘(2) REGULATIONS- Not later than 9 months after the date of enactment of this section, the Commission shall conclude the rulemaking proceeding initiated under paragraph (1) and shall prescribe regulations to implement methods and procedures for protecting the privacy rights described in such paragraph in an efficient, effective, and economic manner and without the imposition of any additional charge to internet users.
‘(e) EFFECT ON STATE LAW-
‘(1) STATE LAW NOT PREEMPTED- Except for the standards prescribed under subsection (d) and subject to paragraph (2) of this subsection, nothing in this section or in the regulations prescribed under this section shall preempt any State law that imposes more restrictive intrastate requirements or regulations on the sending of unsolicited commercial electronic mail.
‘(2) STATE USE OF DATABASES- If, pursuant to subsection (c)(3), the Commission requires the establishment of a single national database of electronic mail addresses of subscribers who object to receiving unsolicited commercial electronic mail, a State or local authority may not, in its regulation of unsolicited commercial electronic mail, require the use of any database, list, or listing system that does not include the part of such single national database that relates to such State.
‘(f) ACTIONS BY STATES-
‘(1) AUTHORITY OF STATES- Whenever the attorney general of a State, or an official or agency designated by a State, has reason to believe that any person has engaged or is engaging in a pattern or practice of electronically mailing or causing to be electronically mailed unsolicited commercial electronic mail to residents of that State in violation of this section or the regulations prescribed under this section, the State may bring a civil action on behalf of its residents to enjoin such calls, an action to recover for actual monetary loss or receive $500 in damages for each violation, or both such actions. If the court finds the defendant willfully or knowingly violated such regulations, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under the preceding sentence.
‘(2) EXCLUSIVE JURISDICTION OF FEDERAL COURTS- The district courts of the United States, the United States courts of any territory, and the District Court of the United States for the District of Columbia shall have exclusive jurisdiction over all civil actions brought under this subsection. Upon proper application, such courts shall also have jurisdiction to issue writs of mandamus, or orders affording like relief, commanding the defendant to comply with the provisions of this section or regulations prescribed under this section, including the requirement that the defendant take such action as is necessary to remove the danger of such violation. Upon a proper showing, a permanent or temporary injunction or restraining order shall be granted without bond.
‘(3) RIGHTS OF COMMISSION- The State shall serve prior written notice of any such civil action upon the Commission and provide the Commission with a copy of its complaint, except in any case where such prior notice is not feasible, in which case the State shall serve such notice immediately upon instituting such action. The Commission shall have the right (A) to intervene in the action, (B) upon so intervening, to be heard on all matters arising therein, and (C) to file petitions for appeal.
‘(4) VENUE; SERVICE OF PROCESS- Any civil action brought under this subsection in a district court of the United States may be brought in the district wherein the defendant is found or is an inhabitant or transacts business or wherein the violation occurred or is occurring, and process in such cases may be served in any district in which the defendant is an inhabitant or where the defendant may be found.
‘(5) INVESTIGATORY POWERS- For purposes of bringing any civil action under this subsection, nothing in this section shall prevent the attorney general of a State, or an official or agency designated by a State, from exercising the powers conferred on the attorney general or such official by the laws of such State to conduct investigations or to administer oaths or affirmations or to compel the attendance of witnesses or the production of documentary or other evidence.
‘(6) EFFECT ON STATE COURT PROCEEDINGS- Nothing contained in this subsection shall be construed to prohibit an authorized State official from proceeding in State court on the basis of an alleged violation of any general civil or criminal statute of such State.
‘(7) LIMITATION- Whenever the Commission has instituted a civil action for violation of regulations prescribed under this section, no State may, during the pendency of such action instituted by the Commission, subsequently institute a civil action against any defendant named in the Commission’s complaint for any violation as alleged in the Commission’s complaint.
‘(8) DEFINITION- As used in this subsection, the term ‘attorney general’ means the chief legal officer of a State.’.
(g) DEADLINE FOR REGULATIONS; EFFECTIVE DATE-
(1) REGULATIONS- The Federal Communications Commission shall prescribe regulations to implement the amendments made by this section not later than 9 months after the date of enactment of this Act.
(2) EFFECTIVE DATE- The requirements of section 228 of the Communications Act of 1934 (as added by this section), other than the authority to prescribe regulations, shall take effect one year after the date of enactment of this Act.