15 U.S.C. §7701 et seq.
Title 15. Commerce and Trade
Chapter 103. Controlling The Assault of Non-solicited Pornography and Marketing
Act of 2003
§ 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 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) of this section, 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.
§ 7702. Definitions
In this chapter:
(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 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 December 16, 2003, the Commission shall
issue regulations pursuant to section 7711 of this title 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 chapter 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 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 Title 47.
(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.
(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 chapter.
(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;
(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 7711 of this title 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 chapter to the extent that such modification
is necessary to accommodate changes in electronic mail technology or
practices and accomplish the purposes of this chapter.
§ 7703. Prohibition against predatory and abusive commercial e–mail
(a) Omitted
(b) Omitted
(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 (relating to fraud and false statements); chapter 71 of Title 18 (relating
to obscenity); chapter 110 of Title 18 (relating to the sexual exploitation of
children); and chapter 95 of Title 18 (relating to racketeering), as appropriate.
§ 7704. Other 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 regarding the contents or subject
matter of the message (consistent with the criteria used in enforcement of section
45 of this title).
(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 Internetbased
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 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 chapter
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) of this section, 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 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) of this section.
(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) of this section 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 7711 of this title–
(1) modify the 10-business-day period under subsection (a)(4)(A) or subsection
(a)(4)(B) of this section, or both, if the Commission determines that a different
period would be more reasonable after taking into account—
(A) the purposes of subsection (a) of this section;
(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) of this section
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) of this section.
(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;
(ii) the information required to be included in the message pursuant
to subsection (a)(5) of this section; 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 of marks and notices
Not later than 120 days after December 16, 2003, 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 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), 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 or
imprisoned not more than 5 years, or both.
§ 7705. Businesses 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 7704(a)(1) of
this title 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) of this section shall not be held liable for such violation.
(2) Exception
Liability for a violation of subsection (a) of this section shall be imputed to a third
party that provides goods, products, property, or services to another person that
violates subsection (a) of this section if that third party—
(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) of this
section; 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 7704(a)(1) of this title; and
(ii) receives, or expects to receive, an economic benefit from such
promotion.
(c) Exclusive enforcement by FTC
Subsections (f) and (g) of section 7706 of this title do not apply to violations of this
section.
(d) Savings provision
Except as provided in section 7706(f)(8) of this title, nothing in this section may be
construed to limit or prevent any action that may be taken under this chapter with respect
to any violation of any other section of this chapter.
§ 7706. Enforcement generally
(a) Violation is unfair or deceptive act or practice
Except as provided in subsection (b) of this section, this chapter shall be enforced by the
Commission as if the violation of this chapter were an unfair or deceptive act or practice
proscribed under section 57a(a)(1)(B) of this title.
(b) Enforcement by certain other agencies
Compliance with this chapter shall be enforced—
(1) under section 1818 of Title 12, 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;
(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 6701 of this title, except that in any State in
which the State insurance authority elects not to exercise this power, the
enforcement authority pursuant to this chapter shall be exercised by the
Commission in accordance with subsection (a) of this section;
(7) under part A of subtitle VII of Title 49 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 this section
of its powers under any Act referred to in that subsection, a violation of this chapter 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) of this
section, each of the agencies referred to in that subsection may exercise, for the purpose
of enforcing compliance with any requirement imposed under this chapter, any other
authority conferred on it by law.
(d) Actions by the Commission
The Commission shall prevent any person from violating this chapter 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
chapter. 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 chapter, 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 7704(a)(1)(C) of this title, section
7704(a)(2) of this title, clause (ii), (iii), or (iv) of section 7704(a)(4)(A) of this title,
section 7704(b)(1)(A) of this title, or section 7704(b)(3) of this title, 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 violates paragraph (1) or
(2) of section 7704(a) of this title, who violates section 7704(d) of this title, or
who engages in a pattern or practice that violates paragraph (3), (4), or (5) of
section 7704(a) of this title, 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 7704 of this title 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 chapter, 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
7704(a)(1)(C) of this title, section 7704(a)(2) of this title, clause (ii), (iii), or (iv)
of section 7704(a)(4)(A) of this title, section 7704(b)(1)(A) of this title, or section
7704(b)(3) of this title.
(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 7704 of this title (other than section
7704(a)(1) of this title), 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 7704(b) of this title.
(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 of Federal regulators
The State shall serve prior written notice of any action under paragraph (1) upon
the Federal Trade Commission or the appropriate Federal regulator determined
under subsection (b) of this section 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
chapter 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.
(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) of
this section, has instituted a civil action or an administrative action for violation of
this chapter, 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 chapter alleged in the complaint.
(9) Requisite scienter for certain civil actions
Except as provided in section 7704(a)(1)(C) of this title, section 7704(a)(2) of this
title, clause (ii), (iii), or (iv) of section 7704(a)(4)(A) of this title, section
7704(b)(1)(A) of this title, or section 7704(b)(3) of this title, 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 chapter, 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
7704(a)(1) of this title, 7704(b) of this title, or 7704(d) of this title, or a pattern or
practice that violates paragraph (2), (3), (4), or (5) of section 7704(a) of this title,
may bring a civil action in 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 chapter shall be applied as if the
definition of the term "procure" in section 7702(12) of this title 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 chapter".
(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 7704(b)(1)(A)(i) of this title,
treated as a separate violation) by—
(i) up to $100, in the case of a violation of section 7704(a)(1) of
this title; or
(ii) up to $25, in the case of any other violation of section 7704 of
this title.
(B) Limitation
For any violation of section 7704 of this title (other than section
7704(a)(1) of this title), 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 7704(b) of this title.
(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.
§ 7707. Effect on other laws
(a) Federal law
(1) Nothing in this chapter shall be construed to impair the enforcement of section
223 or 231 of Title 47, chapter 71 (relating to obscenity) or 110 (relating to sexual
exploitation of children) of Title 18, or any other Federal criminal statute.
(2) Nothing in this chapter 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 chapter 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 chapter 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 chapter 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.
§ 7708. Do-Not-E-Mail registry
(a) In general
Not later than 6 months after December 16, 2003, 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 December 16, 2003.
§ 7709. Study of effects of commercial electronic mail
(a) In general
Not later than 24 months after December 16, 2003, 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 chapter 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) of this section–
(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 chapter;
(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.
§ 7710. 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—
(1) a report, within 9 months after December 16, 2003, that sets forth a system for
rewarding those who supply information about violations of this chapter,
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 chapter to
the first person that—
(i) identifies the person in violation of this chapter; 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 chapter, including procedures to
allow the electronic submission of complaints to the Commission; and
(2) a report, within 18 months after December 16, 2003, 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.
§ 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.
(b) Limitation
Subsection (a) of this section may not be construed to authorize the Commission to
establish a requirement pursuant to section 7704(a)(5)(A) of this title to include any
specific words, characters, marks, or labels in a commercial electronic mail message, or
to include the identification required by section 7704(a)(5)(A) of this title in any
particular part of such a mail message (such as the subject line or body).
§ 7712. Application to wireless
(a) Effect on other law
Nothing in this chapter shall be interpreted to preclude or override the applicability of
section 227 of Title 47 or the rules prescribed under section 6102 of this title.
(b) FCC 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) of this section—
(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 chapter,
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 chapter, 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
Title 47) in connection with such service.
§ 7713. Separability
If any provision of this chapter or the application thereof to any person or circumstance is
held invalid, the remainder of this chapter and the application of such provision to other
persons or circumstances shall not be affected.
