108th CONGRESS

1st Session

S. 1231

To eliminate the burdens and costs associated with electronic mail spam by prohibiting the transmission of all unsolicited commercial electronic mail to persons who place their electronic mail addresses on a national No-Spam Registry, and to prevent fraud and deception in commercial electronic mail by imposing requirements on the content of all commercial electronic mail messages.

IN THE SENATE OF THE UNITED STATES

June 11, 2003

Mr. SCHUMER introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation


A BILL

To eliminate the burdens and costs associated with electronic mail spam by prohibiting the transmission of all unsolicited commercial electronic mail to persons who place their electronic mail addresses on a national No-Spam Registry, and to prevent fraud and deception in commercial electronic mail by imposing requirements on the content of all commercial electronic mail messages.

    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 'Stop Pornography and Abusive Marketing Act' or the 'SPAM Act'.

SEC. 2. FINDINGS.

    Congress finds the following:

      (1) Electronic mail is an increasingly valuable tool for personal and commercial communication. Unsolicited commercial electronic mail (UCE), commonly known as spam, however, has become an impediment to efficient electronic mail use and creates problems for all types of users and organizations, including Internet Service Providers, individual users, and corporate organizations.

      (2) UCE often contains objectionable, fraudulent, and offensive content. The Federal Trade Commission reports that over 60 percent of all UCE contains false, misleading, or deceptive information. Nearly one-fourth contains sexually explicit imagery. Parents have little ability to prevent these images from reaching their child's electronic mail in-box.

      (3) Consumers increasingly ignore or delete legitimate commercial messages as they face an ever increasing amount of UCE. If the vitality and force of the Internet and electronic mail are to be preserved as a tool for commercial communication, UCE must be curbed.

      (4) UCE is also a severe financial concern. Lost productivity, increased spending on technology systems and personnel, and personal frustration are some of the costs associated with UCE.

      (5) Despite the increasing deployment of anti-spam services and technology, the number and size of spam messages are growing faster than ever. In 1999, the average electronic mail user received just 40 pieces of UCE per year. In 2003, the number is expected to pass 2,500. Experts estimate as much as 70 percent of electronic mail traffic qualifies as UCE.

      (6) Existing anti-spam service solutions alone are insufficient to stop the growth of spam. Despite the fact that Internet Service Providers spend millions of dollars each year on research, filtering and other anti-spam software, and larger servers to deal with the ever expanding volume of UCE, current technology alone cannot control the spam problem.

      (7) Federal law does not specifically address UCE and leaves Federal and State law enforcement and consumers with inadequate redress for the problem.

SEC. 3. PURPOSES.

    The purposes of this Act are to--

      (1) preserve electronic mail as a vital tool in interstate commerce by--

        (A) reducing the costs associated with UCE;

        (B) reducing the amount of UCE; and

        (C) eliminating false, misleading, and deceptive content in all commercial electronic mail; and

      (2) give consumers control over their in-boxes.

SEC. 4. DEFINITIONS.

    In this Act:

      (1) AFFIRMATIVE CONSENT- The term 'affirmative consent', when used with respect to a commercial electronic mail message, means--

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

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

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

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

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

        (C) the recipient has not, after granting the invitation or permission, submitted a request under section 204 not to receive unsolicited commercial electronic mail messages from the sender of the message.

      (2) COMMERCIAL ELECTRONIC MAIL MESSAGE- The term 'commercial electronic mail message' means any electronic mail message the primary purpose of which is to advertise or promote, for a commercial purpose, a commercial product or service (including content on an Internet website).

      (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 mail address on the Internet.

      (5) ELECTRONIC MAIL ADDRESS-

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

        (B) INCLUSION- In the case of the Internet, the term 'electronic mail address' may include an electronic mail address consisting of a user name or mailbox (commonly referred to as the 'local part') and a reference to an Internet domain (commonly referred to as the 'domain part').

      (6) ELECTRONIC MAIL SERVICE- The term 'electronic mail service' means a service for the transmission of electronic mail messages that receives the content of, and recipient list for, electronic mail messages that it sends from the person or entity procuring such services. For purposes of this Act, to be an electronic mail service, such service must retain identifying information about the person or entity procuring services and cooperate with law enforcement actions brought under this Act.

      (7) FUNCTIONING RETURN ELECTRONIC MAIL ADDRESS-

        (A) The term 'functioning return electronic mail address' means a legitimately obtained electronic mail address, clearly and conspicuously displayed in an electronic mail message, that--

          (i) remains capable of receiving messages for no less than 30 days after the transmission of such commercial electronic mail message; and

          (ii) that has capacity reasonably calculated, in light of the number of recipients of the electronic mail message, to enable it to receive the full expected quantity of reply messages from such recipients.

        (B) An electronic mail address that meets the requirements of subparagraph (A) shall not be excluded from this definition because of a temporary inability to receive electronic mail messages due to technical problems, provided steps are taken to correct such technical problems within a reasonable time period.

      (8) HEADER INFORMATION- The term 'header information' means the source, destination, and routing information, or information authenticating the sender, associated with an electronic mail message, including the originating domain name, originating electronic mail address, information regarding any part of the route that an electronic mail message travels or appears to travel on the Internet or on an online service, or other authenticating information.

      (9) IMPLIED CONSENT- The term 'implied consent', when used with respect to a commercial electronic mail message, means--

        (A) within the 3-year period ending upon receipt of such message, there has been a business transaction between the sender and the recipient (including a transaction involving the provision, free of charge, of information, goods, or services requested by the recipient); and

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

      (10) INITIATE- The term 'initiate' means to originate an electronic mail message or to procure the origination of such message, regardless of whether the message reaches its intended recipients, and does not include the actions of an Internet access service or an electronic mail service used by another person for the transmission of an electronic mail message for which another person has provided and selected the recipient electronic mail addresses. For purposes of this Act, more than 1 person may be considered to have initiated the same message.

      (11) INTERNET- The term 'Internet' has the meaning given that term in the Internet Tax Freedom Act (Public Law 105-277, div. C, title XI, Sec. 1101(e)(3)(c)).

      (12) 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)).

      (13) PROTECTED COMPUTER- The term 'protected computer' has the meaning given that term in section 1030(e)(2) of title 18, United States Code.

      (14) RECIPIENT- The term 'recipient', when used with respect to a commercial electronic mail message, means the addressee of such message. If an addressee of a commercial electronic mail message has 1 or more electronic mail addresses in addition to the address to which the message was addressed, the addressee shall be treated as a separate recipient with respect to each such address.

      (15) REGISTERED ELECTRONIC MAIL ADDRESS- The term 'registered electronic mail address' means an electronic mail address which has been placed on the No-Spam Registry administered by the Federal Trade Commission by the owner of the electronic mail address.

      (16) 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 provided and selected the recipient addresses.

      (17) SENDER- The term 'sender', when used with respect to a commercial electronic mail message or an unsolicited 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, but does not include any person, including a provider of Internet access service or electronic mail service, whose role with respect to the message is limited to routine conveyance of the message.

      (18) UNSOLICITED COMMERCIAL ELECTRONIC MAIL MESSAGE; UCE-

        (A) IN GENERAL- The terms 'unsolicited commercial electronic mail message' and 'UCE' mean any commercial electronic mail message that is sent to a recipient--

          (i) without prior affirmative consent or implied consent from the recipient; or

          (ii) to a recipient who, subsequent to the establishment of affirmative or implied consent under clause (i), has expressed, in a reply submitted pursuant to section 204, or in response to any other opportunity the sender may have provided to the recipient, a desire not to receive commercial electronic mail messages from the sender.

        (B) EXCLUSION- Notwithstanding subparagraph (A), the term 'unsolicited commercial electronic mail message' does not include an electronic mail message sent by or on behalf of one or more lawful owners of copyright, patent, publicity, or trademark rights to an unauthorized user of protected material notifying such user that the use is unauthorized and requesting that the use be terminated or that permission for such use be obtained from the rights holder or holders.

TITLE I--PROTECTION FROM UNSOLICITED ELECTRONIC MAIL

SEC. 101. ESTABLISHMENT OF THE NATIONAL NO-SPAM REGISTRY.

    (a) IN GENERAL- The Commission shall establish a registry (referred to in this section as the 'Registry') in which any person that does not wish to receive unsolicited commercial electronic mail may register electronic mail addresses.

    (b) REGISTRATION- The Commission shall permit any person to register the electronic mail addresses of the person, or the electronic mail addresses over which the person has authority or control, including registration by electronic mail, on the Registry.

    (c) REGISTRATION BY PARENT- The Commission shall permit a parent, legal guardian, or other person with control or authority over electronic mail addresses to which minor children have access, to register such addresses.

    (d) PROHIBITION ON UNSOLICITED COMMERCIAL ELECTRONIC MAIL TO REGISTERED ADDRESSES- Except as otherwise authorized by the Commission in regulations prescribed under this section, it shall be unlawful for a person to initiate UCE to a registered electronic mail address.

SEC. 102. ENFORCEMENT.

    (a) ENFORCEMENT POWERS-

      (1) IN GENERAL- The Commission shall enforce this section as part of its duties under the Federal Trade Commission Act (15 U.S.C. 41 et seq.).

      (2) REPORTING OF VIOLATIONS- For purposes of the enforcement of section 101(d), the Commission shall establish procedures to permit the reporting of violations of this section to the Commission, including appropriate links on the Internet web site of the Commission and the use of a toll-free telephone number (commonly referred to as an '800 number') for such purposes.

    (b) CIVIL PENALTY-

      (1) IN GENERAL- The Commission may impose a civil penalty not to exceed $5,000 for each violation of section 101(d). For purposes of this paragraph, each day of violation shall constitute a separate offense.

      (2) UNAUTHORIZED USE OF REGISTRY- The Commission may impose a civil penalty not to exceed $100,000 for each unauthorized use of the Registry.

SEC. 103. REGULATIONS.

    (a) IN GENERAL- Not later than 180 days after the date of enactment of this Act, the Commission shall issue regulations for establishing and maintaining the Registry, providing secure distribution of the Registry to marketers for the purpose of complying with this section, protecting the Registry from unauthorized use, and enforcing the provisions of this section.

    (b) PROTECTION OF CHILDREN-

      (1) CREATION OF CATEGORIES- The Commission may create specific categories of electronic mail for which recipients who are minors can receive protection under this Act.

      (2) TYPES OF CATEGORIES- The categories created under paragraph (1) may include--

        (A) products or services that a minor child is prohibited by law from purchasing; and

        (B) electronic mail that contains or advertises adult content or links to such content.

      (3) COMPLIANCE- Senders shall honor the categories created under paragraph (1) without regard to actual or implied consent given by the minor.

    (c) FEES- The Commission shall include in its regulations a method for assessing fees on marketers for use of the Registry that are sufficient to establish, administer, and maintain the Registry.

SEC. 104. SAFE HARBOR FOR REASONABLE PROCEDURES.

    No person shall be in violation of this Act if--

      (1) the electronic mail address has been on the Registry for less than 30 days; or

      (2) the person reasonably relies on the Registry provided by the Commission and takes reasonable measures to comply with this Act.

TITLE II--REQUIREMENTS FOR SENDERS OF UNSOLICITED COMMERCIAL ELECTRONIC MAIL AND COMMERCIAL ELECTRONIC MAIL

SEC. 201. LABELING REQUIREMENTS FOR UNSOLICITED COMMERCIAL ELECTRONIC MAIL.

    (a) INCLUSION OF IDENTIFIER IN UNSOLICITED COMMERCIAL ELECTRONIC MAIL- Except as provided in subsection (b), it shall be unlawful for any person to initiate the transmission of any UCE to a protected computer unless the message provides clear and conspicuous identification that the message is an advertisement or solicitation, by providing, as the first characters in the subject line, 'ADV:'.

    (b) SAFE HARBOR- Subsection (a) shall not apply if--

      (1) the sender is a member of a self-regulatory organization approved by the Commission under subsection (c) and has agreed in writing to meet the requirements for participation established by that organization; and

      (2) the sender is deemed by the self-regulatory organization to be in full compliance with the requirements of that organization.

    (c) APPROVAL BY THE COMMISSION- The Commission may approve a self-regulatory organization under this section if the Commission finds the following:

      (1) PARTICIPATION REQUIREMENTS- The self-regulatory organization has implemented guidelines and procedures that require program participants, which may include a company or any of its divisions, to--

        (A) adhere to the requirements of this Act;

        (B) provide information in each electronic mail message sufficient to identify the company on whose behalf the electronic mail is sent;

        (C) provide notice, through a publicly available policy, of--

          (i) the ways in which electronic mail addresses are collected by the participant;

          (ii) how such addresses are used; and

          (iii) to whom such addresses are disclosed;

        (D) provide a conspicuous link in each electronic mail message to the notice referred to in subparagraph (C);

        (E) provide recipients with a clear and conspicuous opportunity to make choices regarding the use of their electronic mail addresses, including the disclosure of such addresses to third parties in each electronic mail message;

        (F) enable consumers to correct or modify--

          (i) their electronic mail addresses collected by the participant; or

          (ii) any of the choices consumers have made regarding the use and disclosure of such addresses;

        (G) take reasonable steps designed to prevent the unauthorized disclosure or release of electronic mail addresses;

        (H) provide clear and conspicuous information in each electronic mail message sufficient to inform recipients how they can file a complaint regarding the failure of a participant to follow the requirements of the self-regulatory organization of the stated practices of the participant; and

        (I) provide an agent for service of process and consent to suit in the United States.

      (2) ELIGIBILITY AND VERIFICATION- The self-regulatory organization has implemented procedures and requirements to provide for--

        (A) a written certification from a senior corporate officer or other responsible executive of the participant, prior to determining eligibility to participate in the self-regulatory organization, that states--

          (i) the participant has procedures and practices in place that are designed to satisfy, at a minimum, the guidelines, procedures, requirements, and restrictions of the self-regulatory organization; and

          (ii) the participant has taken good faith efforts to maintain compliance with the guidelines, procedures, requirements, and restrictions of the self-regulatory organization; and

        (B) subsequent periodic review of the policy and practices of a participant to ensure the compliance with the requirements of the organization.

      (3) EVIDENCE OF PARTICIPATION- The self-regulatory organization has implemented provisions to identify participation in the program, including a seal that can be recognized by filtering technology.

      (4) DISPUTE RESOLUTION PROCESS-

        (A) SELF-REGULATORY ORGANIZATION PROCESS-

          (i) IN GENERAL- The self-regulatory organization has implemented a dispute resolution process for recipients of UCE from program participants.

          (ii) PROCESS REQUIREMENTS- The dispute resolution process implemented under clause (i)--

            (I) must be available without charge to a recipient;

            (II) must be available to the participant at a reasonable cost;

            (III) must be completed not later than 30 days after submission of a dispute by the recipient and notification to the participant, or not later than 60 days after submission of the dispute if the participant notifies the recipient that additional time is required to obtain information to resolve the dispute;

            (IV) must include procedures for suspension and termination of those participants who violate the guidelines, procedures, requirements, or restrictions of the organization; and

            (V) may include, as one option, binding arbitration.

        (B) INVOLUNTARY SUSPENSION OR TERMINATION- The self-regulatory organization has established procedures and requirements that--

          (i) enable a participant that is involuntarily suspended or terminated from participation in the organization to take timely remedial action to achieve compliance before any suspension or termination becomes final;

          (ii) provide for mandatory, public reporting of any final decision to involuntarily suspend or terminate a participant; and

          (iii) provide for notice to the Commission of any final decision to involuntarily terminate a participant.

        (C) RESOLUTION BY THE COMMISSION-

          (i) IN GENERAL- The Commission shall promptly refer any dispute submitted to the Commission to the participant involved if the recipient at issue has not initially sought resolution under subparagraph (A).

          (ii) REQUIREMENTS- A recipient of UCE may submit a dispute with a program participant to the Commission for resolution under this subparagraph if--

            (I) the dispute was initially submitted for resolution through the dispute resolution process of the participant under subparagraph (A) ;

            (II) the dispute submitted under subparagraph (A)--

              (aa) was not resolved within 30 days after submission of the dispute by the recipient; or

              (bb) was not resolved to the satisfaction of the recipient;

            (III) notice of the dispute is submitted to the Commission not later than 30 days after the recipient was notified of the resolution;

            (IV) the recipient has not voluntarily accepted a resolution of the dispute under subparagraph (A); and

            (V) the dispute was not resolved through binding arbitration.

      (5) INDEPENDENCE- The self-regulatory organization has established requirements to help ensure that program eligibility, compliance, and dispute resolution mechanisms and determinations are made exclusively by persons who are independent of the program participant.

    (d) APPLICATION PROCESS-

      (1) IN GENERAL- The Commission shall promulgate rules for the application process for the approval of a self-regulatory organization this section.

      (2) PUBLIC NOTICE- Upon receipt of an application, the Commission shall provide notice of the application and an opportunity for comment on the application to the public.

      (3) DECISION- The Commission shall--

        (A) make a decision on an application not later than 180 days after the application is received; and

        (B) set forth, in writing, its conclusions with regard to such requests.

      (4) DURATION- An application approved by the Commission shall be approved for a period of 2 years.

      (5) APPEAL- Final action by the Commission on a request for approval of guidelines, or the failure to act within 180 days on a request for approval of guidelines, may be appealed to a district court of the United States or appropriate jurisdiction as provided for in section 706 of title 5, United States Code.

    (e) REVOCATION OF APPROVAL- The Commission may, after notice and an opportunity to be heard, revoke approval if the Commission finds that the self-regulatory organization fails to meet the requirements of this section.

    (f) RELEASE OF CERTAIN INFORMATION- The Commission may compel a self-regulatory organization, or the administrator of the self-regulatory organization, to provide proprietary information or personally identifiable information of consumers to the Commission.

    (g) MISREPRESENTATION OF PARTICIPATION IN THE SELF-REGULATORY ORGANIZATION- It shall be unlawful for an individual or entity to misrepresent that the individual or entity is a participant in the self-regulatory organization, including through any evidence referred to in subsection (c)(3).

SEC. 202. COMPLIANCE WITH ISP POLICIES.

    It shall be unlawful for a person to initiate the transmission of commercial electronic mail or UCE in violation of Internet Service Provider policies with respect to electronic mail, account registration and use, or other terms of service.

SEC. 203. VALID INFORMATION.

    It shall be unlawful for a sender to initiate the transmission of commercial electronic mail or UCE to a protected computer that contains false, misleading, or deceptive information in the subject line, header or router information, or the body of the message, including the information regarding unsubscribe option required by section 204.

SEC. 204. UNSUBSCRIBE OPTION.

    (a) IN GENERAL- All commercial electronic mail and UCE shall contain the following:

      (1) INCLUSION OF RETURN ADDRESS-

        (A) IN GENERAL- A functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed, that--

          (i) a recipient may use to submit a reply electronic mail message requesting not to receive any future UCE 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) TEMPORARY INABILITY TO RECEIVE MESSAGES- 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 due to technical or capacity problems, if the problem with receiving messages is corrected within a reasonable time period.

      (2) NOTICE OF RIGHT TO DECLINE FURTHER MESSAGES- Clear and conspicuous notice, set out in bold type and in a font no smaller than the smallest font type used in the remainder of the message, of the opportunity to decline to receive further commercial electronic mail and UCE from the sender.

    (b) VIOLATION- It shall be unlawful for a sender to initiate transmission of commercial electronic mail or UCE to a recipient after that recipient has exercised the unsubscribe option this section.

SEC. 205. PROHIBITION OF TRANSMISSION OF COMMERCIAL ELECTRONIC MAIL AND UNSOLICITED COMMERCIAL ELECTRONIC MAIL TO ADDRESSES OBTAINED THROUGH ILLEGAL HARVESTING OR AUTOMATED MEANS.

    (a) IN GENERAL- It shall be unlawful for any person to initiate the transmission, to a protected computer, of a commercial electronic mail message or UCE, or to assist in the origination of such a message by providing or selecting addresses to which the message will be sent, if such person knows that, or acts with reckless disregard as to whether--

      (1) 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;

      (2) the website or proprietary online service from which the address was obtained included, at the time the address was obtained, a notice stating that the operator of such a website or proprietary online service will not give, sell, or otherwise transfer addresses maintained by such site or service to any other party for the purpose of initiating, or enabling others to initiate, UCE; or

      (3) the electronic mail address of the recipient was obtained using automated means based on a combination of names, letters, or numbers.

    (b) DISCLAIMER- Nothing in this section creates an ownership or proprietary interest in such electronic mail addresses.

SEC. 206. VALID POSTAL ADDRESS.

    It shall be unlawful for any person to initiate the transmission of commercial electronic mail or UCE without identifying the valid, physical address of the sender in a clear and conspicuous manner.

TITLE III--ENFORCEMENT

SEC. 301. ENFORCEMENT BY FEDERAL TRADE COMMISSION.

    Except as otherwise provided in section 102, 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. Except as provided in title I, the Commission may seek penalties and fines according to all applicable terms and provisions of the Federal Trade Commission Act. Nothing in this Act shall be construed to limit the authority of the Commission under any other provision of law.

SEC. 302. ENFORCEMENT BY CERTAIN OTHER AGENCIES.

    (a) IN GENERAL- Compliance with this Act shall be enforced--

      (1) under section 8 of the Federal Deposit Insurance Act (12 U.S.C. 1818), in the case of--

        (A) national banks, and Federal branches and Federal agencies of foreign banks, and any subsidiaries of such entities (except brokers, dealers, persons providing insurance, investment companies, and investment advisers), 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 and their nonbank subsidiaries or affiliates (except brokers, dealers, persons providing insurance, investment companies, and investment advisers), by the Board;

        (C) banks insured by the Federal Deposit Insurance Corporation (other than members of the Federal Reserve System) insured State branches of foreign banks, and any subsidiaries of such entities (except brokers, dealers, persons providing insurance, investment companies, and investment advisers), 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, and any subsidiaries of such savings associations (except brokers, dealers, persons providing insurance, investment companies, and investment advisers), 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, and any subsidiaries of such a 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 104 of the Gramm-Bliley-Leach Act (15 U.S.C. 6701);

      (7) under part A of subtitle VII of title 49, United States Code, by the Secretary of Transportation with respect to any air carrier or foreign air carrier subject to that part;

      (8) under the Packers and Stockyards Act, 1921 (7 U.S.C. 181 et seq.) (except as provided in section 406 of that Act (7 U.S.C. 226, 227)), by the Secretary of Agriculture with respect to any activities subject to that Act;

      (9) under the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.) by the Farm Credit Administration with respect to any Federal land bank, Federal land bank association, Federal intermediate credit bank, or production credit association; and

      (10) under the Communications Act of 1934 (47 U.S.C. 151 et seq.) by the Federal Communications Commission with respect to any person subject to the provisions of that Act.

    (b) EXERCISE OF CERTAIN POWERS- For the purpose of the exercise by any agency referred to in subsection (a) of its powers under any Act referred to in that subsection, a violation of this Act is deemed to be a violation of a requirement imposed under that Act. In addition to its powers under any provision of law specifically referred to in subsection (a), 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.

SEC. 303. ENFORCEMENT BY STATES.

    (a) CIVIL ACTION- In any case in which the attorney general of a State has reason to believe that an interest of the residents of that State has been or is threatened or adversely affected by any person engaging in a practice that violates this Act, 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 or in any other court of competent jurisdiction--

      (1) to enjoin that practice; or

      (2) to obtain damages on behalf of residents of the State, in an amount equal to the greater of--

        (A) the actual monetary loss suffered by such residents; or

        (B) the amount determined under subsection (b).

    (b) STATUTORY DAMAGES- For purposes of subsection (a)(2)(B), the amount determined under this subsection is the amount calculated by multiplying the number of willful, knowing, or negligent violations of this Act by an amount, in the discretion of the court, of up to $10 (with each separately addressed unlawful message received by such residents treated as a separate violation). In determining the per-violation penalty under this subsection, the court shall take into account the degree of culpability, any history of prior such conduct, ability to pay, the extent of economic gain resulting from the violation, and such other matters as justice may require.

    (c) ATTORNEY FEES- In the case of any successful action under subsection (a), the State shall be awarded the costs of the action and reasonable attorney fees as determined by the court.

    (d) NOTICE-

      (1) PRE-FILING- Before filing an action under paragraph (1), an attorney general shall provide to the Commission--

        (A) written notice of that action; and

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

      (2) CONTEMPORANEOUS- If an attorney general of a State determines that it is not feasible to provide the notice required by paragraph (1) before filing the action, the notice and a copy of the complaint shall be provided to the Commission when the action is filed.

    (e) INTERVENTION- If the Commission receives notice under subsection (d), the Commission--

      (1) may intervene in the action that is the subject of the notice; and

      (2) has the right--

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

        (B) to file a petition for appeal.

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

      (1) conduct investigations;

      (2) administer oaths or affirmations; or

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

    (g) LIMITATION ON STATE ACTION WHILE FEDERAL ACTION IS PENDING- If the Commission or other appropriate Federal agency under section 208(a) has instituted a civil action or an administrative action for violation of this Act, no State attorney general may bring a separate 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. Nothing in this subsection shall preclude a State from joining an action brought by the Commission or other agency or cooperating with the Commission's or agency's prosecution of that action.

SEC. 304. ACTION BY PROVIDER OF INTERNET ACCESS SERVICE.

    (a) ACTION AUTHORIZED- A provider of Internet access service adversely affected by a violation of this Act may bring a civil action in any district court of the United

States with jurisdiction over the defendant, or in any other court of competent jurisdiction, to--

      (1) enjoin further violation by the defendant; or

      (2) recover damages in an amount equal to the greater of--

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

        (B) the amount determined under subsection (b).

    (b) STATUTORY DAMAGES- For purposes of subsection (a)(2)(B), the amount determined under this paragraph is the amount calculated by multiplying the number of willful, knowing, or negligent violations by an amount, in the discretion of the court, of up to $10 (with each separately addressed unlawful message received by such residents treated as a separate violation). In determining the per-violation penalty under this subsection, the court shall take into account the degree of culpability, any history of prior such conduct, ability to pay, the extent of economic gain resulting from the violation, and such other matters as justice may require.

    (c) ATTORNEY FEES- In any action brought pursuant to subsection (a), 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.

SEC. 305. ACTION BY INDIVIDUAL CONSUMERS.

    (a) ACTION AUTHORIZED- A recipient adversely affected by a violation of this Act may, if otherwise permitted by the laws or rules of State court, bring, in an appropriate court of that State, an action to--

      (1) enjoin further violation by the defendant;

      (2) recover damages in an amount equal to the greater of--

        (A) actual monetary losses incurred by the plaintiff as a result of such violation; or

        (B) the amount determined under subsection (b); or

      (3) both enjoin further violation and recover damages under paragraphs (1) and (2).

    (b) STATUTORY DAMAGES- For purposes of subsection (a)(2)(B), the amount determined under this subsection is the amount calculated by multiplying the number of willful, knowing, or negligent violations adversely affecting that recipient by an amount, determined in the discretion of the court, of not more than $1,000. Each separately addressed unlawful electronic mail message received by the plaintiff shall be treated as a single violation regardless of the number of violations contained in that message. In determining the per-violation penalty under this subsection, the court shall take into account the degree of culpability, any prior history of such conduct, ability to pay, the extent of economic gain resulting from the violation, and such other matters as justice may require.

    (c) LIMITATION ON ACTIONS-

      (1) IN GENERAL- No action may be brought under or based on this section against an electronic mail service provider or Internet Service Provider involved in only the routine transmission of the commercial electronic mail or UCE sent in violation of this Act.

      (2) INDIVIDUAL RIGHT OF ACTION- The right of action granted in this section is an individual right. No action brought under this section or based on this section may be maintained as a class action under Rule 23 of the Federal Rules of Civil Procedure or any State law, rule, or procedure for class actions or other representative actions.

    (d) ATTORNEY FEES AND COSTS- In any action brought pursuant to subsection (a) the court may, in its discretion, require the payment of the costs of such action, and assess reasonable costs, including reasonable attorneys' fees, against any party.

END

(0 Comments)
Log in or sign up to comment.

Post a comment

Log in or sign up to comment.
You can protect your computer from viruses without expensive software. Instead, follow these simple tips:

Stay up-to-date on all system updates.

Don't download any email attachments you weren't expecting.

Avoid freeware and peer-to-peer sharing sites.

Use alternative web browsers and email software.