[House Report 107-41]
[From the U.S. Government Publishing Office]
107th Congress Rept. 107-41
HOUSE OF REPRESENTATIVES
1st Session Part 1
======================================================================
UNSOLICITED COMMERCIAL ELECTRONIC MAIL ACT OF 2001
_______
April 4, 2001.--Ordered to be printed
_______
Mr. Tauzin, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 718]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 718) to protect individuals, families, and
Internet service providers from unsolicited and unwanted
electronic mail, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
CONTENTS
Page
Amendment........................................................ 1
Purpose and Summary.............................................. 8
Background and Need for Legislation.............................. 8
Hearings......................................................... 10
Committee Consideration.......................................... 10
Committee Votes.................................................. 10
Committee Oversight Findings..................................... 11
Performance Goals and Objectives................................. 11
New Budget Authority, Entitlement Authority, and Tax Expenditures 11
Committee Cost Estimate.......................................... 11
Congressional Budget Office Estimate............................. 11
Federal Mandates Statement....................................... 11
Advisory Committee Statement..................................... 12
Constitutional Authority Statement............................... 12
Applicability to Legislative Branch.............................. 12
Section-by-Section Analysis of the Legislation................... 12
Changes in Existing Law Made by the Bill, as Reported............ 17
Amendment
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Unsolicited Commercial Electronic Mail
Act of 2001''.
SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.
(a) Findings.--The Congress finds the following:
(1) There is a right of free speech on the Internet.
(2) The Internet has increasingly become a critical mode of
global communication and now presents unprecedented
opportunities for the development and growth of global commerce
and an integrated worldwide economy. In order for global
commerce on the Internet to reach its full potential,
individuals and entities using the Internet and other online
services should be prevented from engaging in activities that
prevent other users and Internet service providers from having
a reasonably predictable, efficient, and economical online
experience.
(3) Unsolicited commercial electronic mail can be an
important mechanism through which businesses advertise and
attract customers in the online environment.
(4) The receipt of unsolicited commercial electronic mail may
result in costs to recipients who cannot refuse to accept such
mail and who incur costs for the storage of such mail, or for
the time spent accessing, reviewing, and discarding such mail,
or for both.
(5) Unsolicited commercial electronic mail may impose
significant monetary costs on Internet access services,
businesses, and educational and nonprofit institutions that
carry and receive such mail, as there is a finite volume of
mail that such providers, businesses, and institutions can
handle without further investment. The sending of such mail is
increasingly and negatively affecting the quality of service
provided to customers of Internet access service, and shifting
costs from the sender of the advertisement to the Internet
access service.
(6) While some senders of unsolicited commercial electronic
mail messages provide simple and reliable ways for recipients
to reject (or ``opt-out'' of) receipt of unsolicited commercial
electronic mail from such senders in the future, other senders
provide no such ``opt-out'' mechanism, or refuse to honor the
requests of recipients not to receive electronic mail from such
senders in the future, or both.
(7) An increasing number of senders of unsolicited commercial
electronic mail purposefully disguise the source of such mail
so as to prevent recipients from responding to such mail
quickly and easily.
(8) Many senders of unsolicited commercial electronic mail
collect or harvest electronic mail addresses of potential
recipients without the knowledge of those recipients and in
violation of the rules or terms of service of the database from
which such addresses are collected.
(9) Because recipients of unsolicited commercial electronic
mail are unable to avoid the receipt of such mail through
reasonable means, such mail may invade the privacy of
recipients.
(10) In legislating against certain abuses on the Internet,
Congress should be very careful to avoid infringing in any way
upon constitutionally protected rights, including the rights of
assembly, free speech, and privacy.
(b) Congressional Determination of Public Policy.--On the basis of
the findings in subsection (a), the Congress determines that--
(1) there is substantial government interest in regulation of
unsolicited commercial electronic mail;
(2) Internet service providers should not be compelled to
bear the costs of unsolicited commercial electronic mail
without compensation from the sender; and
(3) recipients of unsolicited commercial electronic mail have
a right to decline to receive or have their children receive
unsolicited commercial electronic mail.
SEC. 3. DEFINITIONS.
In this Act:
(1) Affiliate.--The term ``affiliate'' means, with respect to
an entity, any other entity that--
(A) controls, is controlled by, or is under common
control with such entity; and
(B) provides marketing information to, receives
marketing information from, or shares marking
information with such entity.
(2) Children.--The term ``children'' includes natural
children, stepchildren, adopted children, and children who are
wards of or in custody of the parent, who have not attained the
age of 18 and who reside with the parent or are under his or
her care, custody, or supervision.
(3) Commercial electronic mail message.--The term
``commercial electronic mail message'' means any electronic
mail message that primarily advertises or promotes the
commercial availability of a product or service for profit or
invites the recipient to view content on an Internet web site
that is operated for a commercial purpose. An electronic mail
message shall not be considered to be a commercial electronic
mail message solely because such message includes a reference
to a commercial entity that serves to identify the initiator.
(4) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(5) Domain name.--The term ``domain name'' means any
alphanumeric designation which is registered with or assigned
by any domain name registrar, domain name registry, or other
domain name registration authority as part of an electronic
address on the Internet.
(6) Electronic mail address.--
(A) In general.--The term ``electronic mail address''
means a destination (commonly expressed as a string of
characters) to which electronic mail can be sent or
delivered.
(B) Inclusion.--In the case of the Internet, the term
``electronic mail address'' may include an electronic
mail address consisting of a user name or mailbox
(commonly referred to as the ``local part'') and a
reference to an Internet domain (commonly referred to
as the ``domain part'').
(7) FTC act.--The term ``FTC Act'' means the Federal Trade
Commission Act (15 U.S.C. 41 et seq.).
(8) Initiate.--The term ``initiate'', when used with respect
to a commercial electronic mail message, means to originate
such message or to procure the origination of such message.
(9) Initiator.--The term ``initiator'', when used with
respect to a commercial electronic mail message, means the
person who initiates such message. Such term does not include a
provider of an Internet access service, or any other person,
whose role with respect to the message is limited to the
transmission, routing, relaying, handling, or storing, through
an automatic technical process, of a message originated by
others.
(10) Internet.--The term ``Internet'' has the meaning given
that term in section 231(e)(3) of the Communications Act of
1934 (47 U.S.C. 231(e)(3)).
(11) Internet access service.--The term ``Internet access
service'' has the meaning given that term in section 231(e)(4)
of the Communications Act of 1934 (47 U.S.C. 231(e)(4)).
(12) Recipient consent.--The term ``recipient consent'', when
used with respect to a commercial electronic mail message,
means that--
(A) the message falls within the scope of an express
and unambiguous invitation or consent granted by the
recipient and not subsequently revoked;
(B) the recipient had clear and conspicuous notice,
at the time such invitation or consent was granted,
of--
(i) the fact that the recipient was granting
the invitation or consent;
(ii) the scope of the invitation or consent,
including what types of commercial electronic
mail messages would be covered by the
invitation or consent and what senders or types
of senders, if any, other than the party to
whom the invitation or consent was communicated
would be covered by the invitation or consent;
and
(iii) a reasonable and effective mechanism
for revoking the invitation or consent; and
(C) the recipient has not, after granting the
invitation or consent, submitted a request under
section 5(a)(1) not to receive unsolicited commercial
electronic mail messages from the initiator.
(13) Pre-existing business relationship.--The term ``pre-
existing business relationship'' means, when used with respect
to the initiator and recipient of a commercial electronic mail
message, that--
(A) within the 5-year period ending upon receipt of
such message, there has been a business transaction
(including a transaction involving the provision, free
of charge, of information, goods, or services, that
were requested by the recipient) between--
(i) the initiator or any affiliate of the
initiator; and
(ii) the recipient; and
(B) the recipient was, at the time of such
transaction or thereafter or in the transmission of the
commercial electronic mail message, provided a clear
and conspicuous notice of an opportunity not to receive
further messages from the initiator and any affiliates
of the initiator and has not exercised such
opportunity.
(14) Recipient.--The term ``recipient'', when used with
respect to a commercial electronic mail message, means the
addressee of such message. If an addressee of a commercial
electronic mail message has one or more electronic mail
addresses in addition to the address to which the message was
addressed, the addressee shall be treated as a separate
recipient with respect to each such address.
(15) Unsolicited commercial electronic mail message.--The
term ``unsolicited commercial electronic mail message'' means
any commercial electronic mail message that is sent to a
recipient--
(A) without prior recipient consent; and
(B)(i) with whom the initiator does not have a pre-
existing business relationship;
(ii) by an initiator or any affiliate of the
initiator after the recipient requests, pursuant to
section 5(a)(1), not to receive further commercial
electronic mail messages from that initiator; or
(iii) by a person or any affiliate of the person
after the expiration of a reasonable period of time
after the recipient requests, pursuant to section
5(a)(2), to be removed from the distribution lists
under the control of a person.
SEC. 4. CRIMINAL PENALTY FOR UNSOLICITED COMMERCIAL ELECTRONIC MAIL
CONTAINING FRAUDULENT ROUTING INFORMATION.
Section 1030 of title 18, United States Code, is amended--
(1) in subsection (a)(5)--
(A) in subparagraph (B), by striking ``or'' at the
end;
(B) in subparagraph (C), by inserting ``or'' after
the semicolon at the end; and
(C) by adding at the end the following new
subparagraph:
``(D) intentionally initiates the transmission of any
unsolicited commercial electronic mail message to a protected
computer in the United States with knowledge that any domain
name, header information, date or time stamp, originating
electronic mail address, or other information identifying the
initiator or the routing of such message, that is contained in
or accompanies such message, is false or inaccurate;'';
(2) in subsection (c)(2)(A)--
(A) by inserting ``(i)'' after ``in the case of'';
and
(B) by inserting before ``; and'' the following: ``,
or (ii) an offense under subsection (a)(5)(D) of this
section''; and
(3) in subsection (e)--
(A) by striking ``and'' at the end of paragraph (8);
(B) by striking the period at the end of paragraph
(9) and inserting ``; and''; and
(C) by adding at the end the following new paragraph:
``(10) the terms `initiate', `initiator', `unsolicited
commercial electronic mail message', and `domain name' have the
meanings given such terms in section 3 of the Unsolicited
Commercial Electronic Mail Act of 2001.''.
SEC. 5. OTHER PROTECTIONS AGAINST UNSOLICITED COMMERCIAL ELECTRONIC
MAIL.
(a) Requirements for Transmission of Messages.--
(1) Inclusion of return address in commercial electronic
mail.--It shall be unlawful for any person or affiliate of such
person to initiate the transmission of a commercial electronic
mail message to any person within the United States unless such
message contains a valid electronic mail address, conspicuously
displayed, to which a recipient may send a reply to the
initiator to indicate a desire not to receive any further
messages from the initiator and any affiliates of the
initiator.
(2) Prohibition of transmission of unsolicited commercial
electronic mail after objection.--If a recipient makes a
request to a person to be removed from all distribution lists
under the control of such person, after receipt of such
request--
(A) it shall be unlawful for such person or any
affiliate of such person to initiate the transmission
of an unsolicited commercial electronic mail message to
such a recipient within the United States after the
expiration of a reasonable period of time for removal
from such lists;
(B) such person and affiliates (and the agents or
assigns of the person or affiliate) shall delete or
suppress the electronic mail addresses of the recipient
from all mailing lists owned or controlled by such
person or affiliate (or such agents or assigns) within
a reasonable period of time for such deletion or
suppression; and
(C) it shall be unlawful for such person or affiliate
(or such agents or assigns) to sell, lease, exchange,
license, or engage in any other transaction involving
mailing lists bearing the electronic mail addresses of
the recipient.
(3) Inclusion of identifier, opt-out, and physical address in
unsolicited commercial electronic mail.--It shall be unlawful
for any person to initiate the transmission of any unsolicited
commercial electronic mail message to any person within the
United States unless the message provides, in a manner that is
clear and conspicuous to the recipient--
(A) identification that the message is an unsolicited
commercial electronic mail message;
(B) notice of the opportunity under paragraph (2) to
decline to receive further unsolicited commercial
electronic mail messages from the initiator or any
affiliate of the initiator; and
(C) the physical mailing address of the initiator.
(4) Treatment of internal opt-out lists.--If the policy of a
provider of Internet access service requires compensation
specifically for the transmission of unsolicited commercial
electronic mail messages into its system, it shall be unlawful
for the provider to fail to provide an option to its
subscribers not to receive any unsolicited commercial
electronic mail messages, except that such option shall not be
required for any subscriber who has agreed to receive
unsolicited commercial electronic mail messages in exchange for
discounted or free Internet access service.
(5) Affirmative defense.--It shall be an affirmative defense
in any action or proceeding brought for a violation of any
paragraph of this subsection that the violation was not
intentional.
(b) Conditions for Enforcement by Providers of Internet Access
Service.--
(1) Authority to opt out.--After the expiration of a
reasonable period of time for taking any action necessary to
comply with a request under subparagraph (B) that begins upon
the receipt of such a request, it shall be unlawful for a
person or any affiliate of such person to initiate the
transmission of an unsolicited commercial electronic mail
message, to any recipient within the United States, that uses
the equipment of a provider of Internet access service to
recipients of electronic mail messages for such transmission,
if such provider--
(A)(i) has in effect a policy that meets the
requirements under paragraph (2); or
(ii) has received a significant number of complaints
from its bona fide subscribers that they have received
unsolicited commercial electronic mail messages from
such person; and
(B) makes a request to such person by means of an
electronic mail message not to use the equipment of the
provider for the transmission of any unsolicited
commercial electronic mail message.
(2) UCE policy.--A policy of a provider of Internet access
service to recipients meets the requirements under this
paragraph only if--
(A) it is a policy regarding the use of the equipment
of the provider for the transmission of unsolicited
commercial electronic mail messages that prohibits the
transmission, using such equipment, of all such
messages;
(B) the provider of Internet access service is making
a good faith effort to block the transmission of all
unsolicited commercial electronic mail messages that
use the equipment of provider for such transmission;
(C) the policy is made publicly available by clear
and conspicuous posting on a World Wide Web site of the
provider of Internet access service, which has an
Internet domain name that is identical to the Internet
domain name of the electronic mail address to which the
prohibition referred to in subparagraph (A) applies;
and
(D) the provider of Internet access service informs
each subscriber to such service of the policy.
(c) Rule of Construction.--Nothing in this Act shall be construed--
(1) to prevent or limit, in any way, a provider of Internet
access service from adopting a policy regarding commercial or
other electronic mail, including a policy of declining to
transmit certain types of electronic mail messages, and from
enforcing such policy through technical means, through
contract, or pursuant to any remedy available under any other
provision of Federal, State, or local criminal or civil law; or
(2) to render lawful any such policy that is unlawful under
any other provision of law.
(d) Protection of Internet Access Service Providers Good Faith
Efforts to Block Transmissions.--A provider of Internet access service
shall not be liable, under any Federal, State, or local civil or
criminal law, for any action it takes in good faith to block the
transmission or receipt of unsolicited commercial electronic mail
messages.
SEC. 6. ENFORCEMENT.
(a) Enforcement Through FTC Act.--
(1) Enforcement.--Except as otherwise provided in this Act,
section 5 shall be enforced by the Commission under the FTC
Act.
(2) Unfair or deceptive practice.--Any violation of section 5
shall be treated as a violation of a rule under section 18 of
the FTC Act (15 U.S.C. 57a) regarding unfair or deceptive acts
or practices.
(3) Scope of commission enforcement.--The Commission shall
prevent any person from violating section 5 of this Act in the
same manner, by the same means, and with the same jurisdiction,
powers, and duties as though all applicable terms and
provisions of the FTC Act were incorporated into and made a
part of this section. Any person who violates section 5 of this
Act shall be subject to the penalties and entitled to the
privileges and immunities provided in the FTC Act in the same
manner, by the same means, and with the same jurisdiction,
powers, and duties as though all applicable terms and
provisions of the FTC Act were incorporated into and made a
part of this section.
(4) Prohibition of regulations.--Neither the Commission nor
any other Federal department or agency shall have any authority
to issue any regulations to implement the provisions of this
Act.
(b) Private Right of Action.--
(1) Actions authorized.--A recipient or a provider of
Internet access service may, if otherwise permitted by the laws
or rules of court of a State, bring in an appropriate court of
that State, or may bring in an appropriate Federal court if
such laws or rules do not so permit, either or both of the
following actions:
(A) An action based on a violation of section 5 to
enjoin such violation.
(B) An action to recover for actual monetary loss
from such a violation in an amount equal to the greater
of--
(i) the amount of such actual monetary loss;
or
(ii) $500 for each such violation, not to
exceed a total of $50,000.
(2) Additional remedies.--If the court finds that the
defendant willfully or repeatedly violated section 5, the court
may, in its discretion, increase the amount of the award to an
amount equal to not more than three times the amount available
under paragraph (1).
(3) Attorney fees.--In any such action, the court may, in its
discretion, require an undertaking for the payment of the costs
of such action, and assess reasonable costs, including
reasonable attorneys' fees, against any party.
(4) Prohibition of class actions.--A private action arising
under this subsection may not be brought as a plaintiff class
action pursuant to the Federal Rules of Civil Procedure nor as
a plaintiff class action pursuant to the law or rules of
procedure of any State.
(5) Protection of trade secrets.--At the request of any party
to an action brought pursuant to this subsection or any other
participant in such an action, the court may, in its
discretion, issue protective orders and conduct legal
proceedings in such a way as to protect the secrecy and
security of the computer, computer network, computer data,
computer program, and computer software involved in order to
prevent possible recurrence of the same or a similar act by
another person and to protect any trade secrets of any such
party or participant.
(c) Enforcement by States.--
(1) In general.--
(A) Civil actions.--In any case in which the attorney
general of a State has reason to believe that an
interest of the residents of that State has been or is
threatened or adversely affected by the engagement of
any person in a practice that violates section 5 of
this Act, the State may bring civil action on behalf of
the residents of the State in an appropriate court of
that State, or in a district court of the United States
of appropriate jurisdiction for any or all of the
following relief:
(i) Injunction.--To enjoin that practice.
(ii) Compliance enforcement.--To enforce
compliance with the provisions of section 5.
(iii) Damages.--To recover actual monetary
loss or receive $500 in damages for each
violation, except that if the court finds that
the defendant willfully or repeatedly violated
section 5, the court may, in its discretion,
increase the amount of the award to an amount
equal to not more than 3 times the amount
otherwise available under this clause.
(B) Limitation on monetary damages.--All monetary
amounts recovered or received by settlement or judgment
in an action under this paragraph shall be paid
directly to the persons who incurred losses or suffered
damages as a result of the violation under section 5
for which the action was brought, and no such amounts
may be retained by the State or may be used directly or
indirectly to offset the cost of such litigation.
(C) Notice.--
(i) In general.--Before filing an action
under subparagraph (A), the attorney general of
the State involved shall provide to the
Commission--
(I) written notice of that action;
and
(II) a copy of the complaint for that
action.
(ii) Exemption.--
(I) In general.--Clause (i) shall not
apply with respect to the filing of an
action by an attorney general of a
State under this subsection, if the
attorney general determines that it is
not feasible to provide the notice
described in that subparagraph before
the filing of the action.
(II) Notification.--In an action
described in subclause (I), the
attorney general of a State shall
provide notice and a copy of the
complaint to the Commission at the same
time as the attorney general files the
action.
(2) Intervention.--
(A) In general.--On receiving notice under paragraph
(1)(B), the Commission shall have the right to
intervene in the action that is the subject of the
notice.
(B) Effect of intervention.--If the Commission
intervenes in an action under paragraph (1), it shall
have the right--
(i) to be heard with respect to any matter
that arises in that action; and
(ii) to file a petition for appeal.
(3) Construction.--For purposes of bringing any civil action
under paragraph (1), nothing in this Act shall be construed to
prevent an attorney general of a State from exercising the
powers conferred on the attorney general by the laws of that
State to--
(A) conduct investigations;
(B) administer oaths or affirmations; or
(C) compel the attendance of witnesses or the
production of documentary and other evidence.
(4) Venue; service of process.--
(A) Venue.--Any action brought under paragraph (1)
may be brought in the district court of the United
States that meets applicable requirements relating to
venue under section 1391 of title 28, United States
Code.
(B) Service of process.--In an action brought under
paragraph (1), process may be served in any district in
which the defendant--
(i) is an inhabitant; or
(ii) may be found.
SEC. 7. EFFECT ON OTHER LAWS.
(a) Federal Law.--Nothing in this Act shall be construed to impair
the enforcement of section 223 or 231 of the Communications Act of
1934, chapter 71 (relating to obscenity) or 110 (relating to sexual
exploitation of children) of title 18, United States Code, or any other
Federal criminal law or any State criminal law regarding obscenity or
the sexual exploitation of children.
(b) State Law.--No State or local government may impose any civil
liability for commercial activities or actions in interstate or foreign
commerce in connection with an activity or action described in section
5 of this Act that is inconsistent with the treatment of such
activities or actions under this Act, except that this Act shall not
preempt any civil action under--
(1) State trespass or contract law; or
(2) any provision of Federal, State, or local criminal law or
any civil remedy available under such law that relates to acts
of computer fraud or abuse arising from the unauthorized
transmission of unsolicited commercial electronic mail
messages.
SEC. 8. STUDY OF EFFECTS OF UNSOLICITED COMMERCIAL ELECTRONIC MAIL.
Not later than 18 months after the date of the enactment of this Act,
the Federal Trade Commission shall submit a report to the Congress that
provides a detailed analysis of the effectiveness and enforcement of
the provisions of this Act and the need (if any) for the Congress to
modify such provisions.
SEC. 9. SEVERABILITY.
If any provision of this Act or the application thereof to any person
or circumstance is held invalid, the remainder of this Act and the
application of such provision to other persons or circumstances shall
not be affected.
SEC. 10. EFFECTIVE DATE.
The provisions of this Act shall take effect 60 days after the date
of the enactment of this Act.
Purpose and Summary
The purpose of H.R. 718, the Unsolicited Commercial
Electronic Mail Act of 2001, is to prohibit the initiation and
transmission of unsolicited commercial electronic mail
messages. The legislation is narrowly drawn to protect freedom
of speech on the Internet and legitimate commercial uses of
electronic mail messages.
H.R. 718 prohibits the transmission of unsolicited
commercial electronic mail messages unless the initiator of
such message provides a valid electronic mail return address
and provides the recipient of such messages the opportunity not
to receive future mailings. In addition, the bill allows
Internet access service providers (ISP) to decline further
unsolicited commercial electronic mail (UCE) messages, if the
ISP has a policy of no UCE or the ISP has received a
significant number of complaints from its customers. Under H.R.
718, the Federal Trade Commission is authorized to enforce the
Act. Further, State or local laws that are inconsistent with
the Act are preempted, except in the case of any civil remedy
under State trespass or contract law, any State or local law
relating to acts of computer fraud and abuse arising from the
unauthorized transmission of unsolicited commercial electronic
mail messages, or any State criminal law regarding obscenity or
risk of injury to children.
Background and Need for Legislation
The creation and growth of the Internet has been one of the
most important developments of the second half of the 20th
century. From its origin as an academic research tool in the
1960's, the Internet has become today a global communications,
information, entertainment and commercial medium.
The use of the Internet to conduct commercial activities,
often referred to as ``electronic commerce,'' has experienced
enormous growth. In 1996, consumers spent just $2.6 billion in
online transactions, compared to more than $50 billion in 1999.
Because of significant efficiencies gained from electronic
transactions and the enormous reach of the Internet, the
Internet is now used to supplement, or in some cases replace,
traditional commercial methods.
In one area, the sending of electronic commercial
solicitations (either requested or not requested by a
consumer), the Internet has brought tremendous efficiencies of
scale. Unlike traditional commercial solicitations delivered
via the postal system, the marginal cost of electronic
solicitations approaches zero.
Given its ability to quickly disseminate multiple
electronic messages, the Internet has heightened consumer
anxiety over unwanted commercial solicitations. This has led
many consumer groups to ask Congress and the States to enact
restrictions on unsolicited commercial electronic (UCE) mail
messages, more commonly known as ``spam.''
There are a number of consumer concerns regarding
unsolicited commercial electronic mail messages. First, a
substantial portion of those messages contains solicitations
that are false or misleading. In discussing the use of
unsolicited commercial electronic mail messages to mislead
consumers, Eileen Harrington, the Associate Director of
Marketing Practices at the Federal Trade Commission testified
that:
* * * UCE has become the fraud artists's calling card
on the Internet. Much of the spam in the Commissions's
database contain false information about the sender,
misleading subject lines, and extravagant earnings or
performance claims about goods and services. These
types of claims are the stock in trade of fraudulent
schemes. * * * The Commission believes the
proliferation of deceptive bulk UCE on the Internet
poses a threat to consumer confidence in online
commerce and thus views the problem of deception as a
significant issue in the debate over UCE.
(Written testimony at the November 3, 1999 hearing before the
Subcommittee on Telecommunications, Trade and Consumer
Protection, Serial No. 106-84, pp. 25-26.)
There are also concerns that many unsolicited commercial
electronic mail messages contain material of an adult nature
that can be easily accessed by children from the family
computer, and in many instances these mail messages are
intentionally sent with incorrect routing information.
The issue of unsolicited commercial advertisements has been
the subject of much debate in the United States over the past
decades. From in-person solicitations, phone-based
telemarketing, junk-faxes, and now Internet-based
solicitations, consumers have historically complained that
these unwanted solicitations are an incredible nuisance.
In 1991, Congress passed the Telephone Consumer Protection
Act (P.L. 102-243) to restrict the use of automated, pre-
recorded telephone calls and unsolicited commercial fax
transmissions. Congress found such unsolicited faxes and
automated telephone calls were a nuisance and an invasion of
privacy. The constitutionality of the Telephone Consumer
Protection Act was upheld in Destination Ventures Ltd. v. FCC,
46 F.3d 54 (9th Cir. 1995), and Moser v. FCC, 46 F.3d 970 (9th
Cir. 1995), cert denied, 515 U.S. 1161. In these cases, the
courts concluded that Congress had accurately identified
automated telemarketing calls as a threat to privacy (46 F.3d
at 974) and that the banning of unsolicited commercial fax
solicitations was a reasonable means of reducing cost shifting
(46 F.3d at 56).
There is also concern about the burden bulk unsolicited
commercial electronic mail messages place on the Internet
infrastructure and on companies providing Internet access
services. Unlike traditional commercial solicitations made by
mail, the cost of unsolicited commercial electronic mail
messages is shifted from the sender to the recipient and the
recipient's ISP.
Most ISPs claim to incur significant costs from unsolicited
commercial electronic mail messages, such as the costs involved
with network bandwidth, processing electronic mail, and staff
time. ISPs must also address the ongoing relationship with its
customers and its reputation in the marketplace for fostering
an environment where spamming is prevalent. In response, many
ISPs have enacted spamming policies to affect the level of
blame (or credit) that is attributed to them regarding the
unsolicited electronic mails their customers receive.
Generally, these laws prohibit the transmission of bulk
unsolicited commercial electronic mail messages that do not
contain a label identifying the message as advertising or
messages containing misleading or false routing information.
Many laws also require senders of unsolicited commercial
electronic mail messages to provide recipients the opportunity
to opt-out of the receipt of future mailings.
Hearings
The Subcommittee on Telecommunications, Trade and Consumer
Protection held a hearing on H.R. 3113, the Unsolicited
Electronic Mail Act on November 3, 1999. The Subcommittee
received testimony from the following witnesses: The Honorable
Heather Wilson; The Honorable Gene Green; The Honorable Gary G.
Miller; The Honorable Christopher H. Smith; Ms. Eileen
Harrington, Associate Director of Marketing Practices Bureau of
Consumer Protection, Federal Trade Commission; Mr. John Brown,
President, iHighway.net Inc.; Mr. Alan Charles Raul, Sidley &
Austin; Mr. Michael Russina, Senior Director Systems
Operations, SBC Communications Inc.; Mr. Charles H. Kennedy,
Morrison & Forester LLP; Mr. Jerry Cerasale, Senior Vice
President, Direct Marketing Association; and, Mr. Ray Everett-
Church, Chief Privacy Officer and Vice President for Public
Privacy, Alladvantage.com.
Committee Consideration
On March 21, 2001, the Subcommittee on Telecommunications
and the Internet met in open markup session and approved H.R.
718, the Unsolicited Electronic Mail Act of 2001 for Full
Committee consideration, as amended, by a voice vote. On March
28, 2001, the Full Energy and Commerce Committee met in open
markup session and ordered H.R. 718 reported to the House with
a favorable recommendation, as amended, by a voice vote, a
quorum being present.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto.
There were no record votes taken in connection with ordering
H.R. 718 reported. A motion by Mr. Tauzin to order H.R. 718
reported to the House, as amended, was agreed to by a voice
vote, a quorum being present.
The following amendment was agreed to by a voice vote:
An amendment in the nature of a substitute offered by
Mrs. Wilson, No. 1, (1) provides the ISP with the
option to ``opt-out'' of receiving unsolicited
commercial electronic mail if: (a) they have a publicly
available policy against receiving unsolicited
commercial electronic mail and make a good faith effort
to block it, or (b) a significant portion of its
customer base complains to the ISP about receiving the
spam, (2) clarifies that the initiator must be the
actual person that ``originates'' the message to
address ISPs that may facilitate e-mail lists, (3)
defines how corporate affiliate relationships will be
treated, (4) clarifies that opting out of unsolicited
commercial electronic mail does not ``terminate'' the
business relationship, (5) gives marketers a reasonable
amount of time to suppress the names of consumers
opting out of spam, (6) deletes notification process by
Federal Trade Commission (FTC) to alleged spammer, (7)
allows FTC to enforce and seek redress under the
process they currently use under the Fair and Deceptive
Practices Act, (8) prohibits the damages received from
a State Attorney General case from going to anyone but
the aggrieved plaintiffs, including to fund the
litigation costs or for other state programs, (9)
explicitly prohibits the FTC from promulgating any
rules under this Act, (10) retains explicit prohibition
against Class Actions, and (11) does not preempt a
state's ability to enforce any law regarding obscenity
or the sexual exploitation of children was agreed to by
a voice vote.
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee held a legislative
hearing and made findings that are reflected in this report.
Performance Goals and Objectives
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, the Committee finds that this
legislation does not authorize funding, and therefore no
statement is required.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
718, the Unsolicited Electronic Mail Act of 2001, would result
in no new or increased budget authority, entitlement authority,
or tax expenditures or revenues.
Committee Cost Estimate, Congressional Budget Office Estimate, and
Federal Mandates Statement
The Congressional Budget Office estimate required pursuant
to clause 3(c)(3) of rule XIII of the Rules of the House of
Representatives section 402 of the Congressional Budget Act of
1974, and the estimate of Federal mandates required pursuant to
section 423 of the Unfunded Mandates Reform Act were requested
from the Congressional Budget Office, but were not prepared as
of the date of filing of this report. The Congressional Budget
Office estimate and accompanying materials will be contained in
a supplemental report.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that the
Constitutional authority for this legislation is provided in
Article I, section 8, clause 3, which grants Congress the power
to regulate commerce with foreign nations, among the several
States, and with the Indian tribes.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short title
Section 1 establishes the short title of this Act as the
``Unsolicited Commercial Electronic Mail Act of 2001. ''
Section 2. Congressional findings and policies
Section 2 lays out Congressional findings and general
policy on the issue of unsolicited commercial electronic mail.
Section 3. Definitions
Section 3 defines the following terms: ``affiliate,''
``children,'' ``commercial electronic mail message,''
``Commission,'' ``domain name,'' ``electronic mail address,''
``FTC Act,'' ''initiate,'' ``initiator,'' ``Internet,''
``Internet access service,'' ``recipient consent,'' ``pre-
existing business relationship,'' ``recipient,'' and
``unsolicited commercial electronic mail message.''
The definition of affiliate requires both that (1)
different entities are controlled by, or under common control
and (2) that the entity provides marketing information to,
receives marketing information from, or shares marketing
information with the other entity under common control.
Affiliates are included within the definition of pre-existing
business relationship. As a result, if an entity has a pre-
existing business relationship with an individual, then any
electronic mail from an affiliate of that entity would not be
considered Unsolicited Commercial Electronic Mail.
The concept of unsolicited commercial electronic mail plays
a key role in the understanding of H.R. 718. As used in the
bill, the term unsolicited commercial electronic mail means any
commercial electronic mail message sent to an individual with
whom the initiator of the electronic message does not have
prior recipient consent and does not have a pre-existing
business relationship. The Committee wants to clarify that a
request by a recipient of commercial electronic mail to not
receive further messages from the initiator and any affiliates
of the initiator does not terminate the business relationship
between the initiator and the recipient. In particular, the
Committee does not wish to limit e-commerce between the
initiator and recipient for renewal, upgrade or replacement of
existing service provided by the initiator. In addition,
electronic mails concerning billing and legal notices shall not
constitute unsolicited commercial electronic mail messages.
The Committee changed an element of the definition of
``initiator'' contained in the Subcommittee passed bill from
``a message composed and addressed by others'' to ``a message
originated by others'' in an effort to make clear that only the
sender of the message is culpable, rather than companies the
sender may utilize to get the message to the end user. When
these intermediary companies do not select the lists that are
used, nor make the decision that the message should be sent to
a given list of recipients, they should not be considered to
have originated the message. For example, even if an ISP plays
a role in facilitating an agreement between a list broker and a
company wishing to get a message out, it should not be liable
for any illegal message, unless it actually originates the
message. The Committee wants to clarify that ISPs will not fall
into the definition of initiator when acting in capacities such
as the transmission, routing, relaying, handling, or storing,
through an automatic technical process, as long as the ISP is
not originating the message.
If an initiator has a pre-existing business relationship
with a recipient and the recipient requests not to receive
further commercial electronic mail messages, such a request
would apply only to subsequent messages that advertise or
promote the commercial availability of a product or service for
profit. Such a request would not apply to the sending of
messages for billing, administrative, legal compliance, or
other communications whose primary purpose is not to advertise
or promote the commercial availability of a product or service
for profit.
Section 4. Criminal penalty for unsolicited commercial electronic mail
containing fraudulent routing information
Section 4 amends Section 1030 of Title 18 of the United
States Code, which encompasses fraud and related activity in
connection with computers. Section 4 of this Act will add a
paragraph to the end of subsection (a)(5) of Section 1030 of
Title 18 of the US Code. The paragraph states that if any
person intentionally initiates the transmission of unsolicited
commercial electronic mail with knowledge that any identifying
information of the initiator or routing information is false,
such person will be punishable under criminal law. A violation
of this amendment to the Title 18 of the US Code will result in
a fine or imprisonment of not more than one year, or both.
Section 5. Other protections against unsolicited commercial electronic
mail
Section 5(a)(1) provides that it is unlawful for any person
to initiate the transmission of an unsolicited commercial
electronic mail message to any person within the United States
unless that message contains a valid, conspicuously displayed
electronic mail address to which a recipient may reply
requesting not to receive any further messages.
Section 5(a)(2) prohibits the transmission of an
unsolicited commercial electronic mail message by the person or
any affiliates of such person after the expiration of a
reasonable period of time for removal from such lists. After
such request is made, such person and affiliates must delete or
suppress the electronic mail addresses of the recipient from
all mailing lists owned or controlled by such person or
affiliate within a reasonable period of time for such deletion
or suppression. Further, it shall be unlawful for such person
or affiliate to sell, lease, exchange, license or engage in any
other transaction involving the mailing lists with the
recipient's electronic mail address. The Committee intended for
it to become standard practice in marketing and other
industries to honor such requests by maintaining a list of
individuals that have opted-out of the receipt of unsolicited
commercial electronic mail. Such lists should suppress these
electronic mail addresses from further solicitation.
Section 5(a)(3) prohibits the transmission of unsolicited
commercial electronic mail messages that do not contain a clear
and conspicuous identification that the message is unsolicited
commercial electronic mail, notice of an opportunity to decline
to receive further unsolicited commercial electronic mail, and
the physical mailing address of the initiator.
Section 5(a)(4) provides that if an ISP requires
compensation specifically for the transmission of unsolicited
commercial electronic mail messages into its system, the
provider must provide an option to its subscribers not to
receive any unsolicited commercial electronic mail messages,
except that such option is not required for any subscriber who
has agreed to receive unsolicited commercial electronic mail
messages in exchange for discounted or free Internet access
service. The Committee intends an ISP must receive compensation
specifically for transmission of unsolicited commercial
electronic mail messages, not merely compensation for the
transmission of any electronic mail messages, whether
commercial or non-commercial or solicited or unsolicited.
Section 5(a)(5) states that it shall be an affirmative
defense that an alleged violation of any paragraph of this
subsection was not intentional.
Section 5(b) provides the conditions for enforcement by
providers of Internet access service. Opt-out by ISPs is
limited to those Internet access services that directly provide
service to a recipient of electronic mail messages. Electronic
mail messages typically may cross several Internet access
services networks, often without the knowledge of the
initiator, before reaching their destination. Because the
initiator would have no means of determining the path an
electronic mail message takes on route to the recipient, the
opt-out for purposes of section 5(b) applies only to equipment
of the ISP that delivers messages directly to a recipient.
Section 5(b)(1) prohibits any person from transmitting an
unsolicited commercial electronic mail message to any ISP in
violation of its policy regarding unsolicited commercial
electronic mail messages. In order to take advantage of this
provision, the ISP must either (1) adopt a policy that complies
with the requirements of section 5(b)(2), or (2) receive a
significant number of complaints from its bona fide subscribers
regarding unsolicited commercial electronic mail from such
person. In either case, the initiator is given a reasonable
period of time to comply with an ISP request not to receive
further unsolicited commercial electronic messages.
Section 5(b)(2) establishes the requirements for an ISP
policy regarding unsolicited commercial electronic mail
messages. The policy must explicitly prohibit unsolicited
commercial electronic mail; the ISP must make a good faith
effort to block the transmission of all unsolicited commercial
electronic mail, the policy must be publicly available by the
clear and conspicuous posting on a World Wide Web site with an
Internet domain name that is identical to that of the
prohibited electronic mail address, and the ISP informs each
subscriber about its policy.
Section 5(c)(1) clarifies that nothing in H.R. 718 is to be
construed to prevent or limit, in any way, a provider of
Internet access service from adopting a policy regarding
commercial or other electronic mail and from enforcing this
policy through technical means, contract or any remedy
available under any other provision of Federal, State, or local
criminal or civil law.
Section 5(c)(2) clarifies that nothing in H.R. 718 renders
lawful and such policy that is unlawful under any other
provision of law.
Section 5(d) provides that a provider of Internet access
service is not to be liable, under any Federal, State, or local
civil or criminal law, for any action it takes in good faith to
block the transmission or receipt of unsolicited commercial
electronic mail messages that are sent in violation of this
section. The Committee notes that section 5 is intended to
primarily establish the unlawfulness of certain acts by
initiators of unsolicited commercial electronic mail, remedies
for which are provided in section 6 to the FTC, State Attorneys
General, ISPs, and recipients. ISPs may elect not to use these
remedies for a variety of reasons but, with the exception of a
narrow provision in paragraph (a)(4), section 5 is not intended
for use as an enforcement or remedial tool against ISPs, and
does not create any cause of action against an ISP. Neither
shall it be used as an affirmative defense to any cause of
action brought by an ISP other than provided for in Section
5(a)(5).
Section 6. Enforcement
Section 6(a)(1) provides for enforcement of Section 5 of
the Act by the FTC under the FTC Act.
Section 6(a)(2) states that any violation of section 5
shall be treated as a violation of section 18 of the FTC Act
regarding unfair or deceptive acts or practices.
Section 6(a)(3) states that the scope of the Commission's
enforcement of Section 5 of this Act will be the same manner in
which they enforce similar violations under the FTC Act.
Section 6(a)(4) provides for a prohibition of the
Commission or any other Federal agency to issue any regulations
in order to implement this Act. This act does not affect the
existing authority of the FTC or other Federal agencies to
issue regulations otherwise permitted by law.
Section 6(b) creates a limited private right of action for
individuals to recover actual or statutory damages associated
with receiving unsolicited commercial electronic mail. The
Committee intends that private actions under this section be
treated as small claims best resolved in State courts designed
to handle them, which would allow injured consumers to settle
claims quickly without incurring attorneys' fees. The Committee
is concerned that in some instances, class action lawsuits may
result in injured parties not receiving the maximum
compensation possible. For this reason, section 6(b)
establishes that no private action created under this section
may be brought as a class action.
Section 6(b)(1) provides that a recipient or a provider of
Internet access service may, if otherwise permitted by the laws
or rules of court of a State, bring in an appropriate court of
that State, or may bring in an appropriate Federal court if
such laws or rules do not so permit, (1) an action based on a
violation of section 5 to enjoin such violation, and/or (2) an
action to recover for actual monetary loss from such a
violation in an amount equal to the greater of the amount of
such actual monetary loss or $500 for each such violation, not
to exceed a total of $50,000.
Section 6(b)(2) provides that if the court finds that the
defendant willfully or repeatedly violated section 4, the court
may, in its discretion, increase the amount of the award to an
amount equal to not more than three times the amount available
under section 6(b)(1).
Section 6(b)(3) provides that in any such action, the court
may, in its discretion, require an undertaking for the payment
of the costs of such action, and assess reasonable costs,
including reasonable attorneys' fees, against any party.
Section 6(b)(4) states that a private action that arises
under this subsection may not be brought as a plaintiff class
action suit under the Federal Rules of civil procedure nor as a
class action pursuant to the laws or rules of procedure of any
State.
Section 6(b)(5) provides that at the request of any party
to an action, or any other participant in such an action, the
court may, in its discretion, issue protective orders and
conduct legal proceedings in such a way as to protect the
secrecy and security of the computer, computer network,
computer data, computer program, and computer software involved
in order to prevent possible recurrence of the same or a
similar act by another person and to protect trade secrets of
any party or participant.
Section 6(c)(1) provides for limited enforcement of the Act
by the States. A State may bring an action for relief of
violations of Section 5 of the Act on behalf of residents of
the State subject to certain limitations.
Section 6(c)(1)(B) expressly bars the State from keeping
any of the proceeds of any settlement or judgment under such an
action. The Committee intends this requirement to ensure,
first, that injured parties are made whole without deduction
for attorneys' fees and, second, that the State will not have
its own economic interest at stake in the outcome of the
litigation. In addition, section 6(c)(1)(B) expressly bars a
State from using funds related to a settlement or judgment to
directly or indirectly offset the costs of litigation. The
Committee intends the term ``all monetary amounts recovered or
received by settlement or judgment'' should include any direct
or indirect payment by the State or any other party or its
counsel or agents to an opposing party or its counsel or
agents.
Section 6(c)(1)(C) requires a State to provide notice to
the Commission of its intent to file an action under the Act.
Section 6(c)(1)(C)(2) allows the Commission to intervene in
an action that is subject to the above-referenced notice.
Section 7. Effect on other laws
Section 7(a) clarifies that nothing in this Act is to be
construed to impair the enforcement of section 223 or 231 of
the Telecommunications Act of 1934, chapter 71 (relating to
obscenity) or 110 (relating to sexual exploitation of children)
of title 18, United States Code, or any other Federal criminal
statute or any State law regarding obscenity or the sexual
exploitation of children.
Section 7(b) provides that no State or local government may
impose any civil liability for commercial activities or actions
in interstate or foreign commerce in connection with the
sending of an unsolicited commercial electronic mail message
that is inconsistent with the treatment of such activities or
actions under the bill. However, this Act does not preempt any
civil remedy under State trespass or contract law, any
provision of Federal, State, or local criminal law, or any
civil remedy that relates to acts of computer fraud or abuse
arising from the unauthorized transmission of unsolicited
commercial electronic mail messages.
Section 8. Study of effects of unsolicited commercial electronic mail
The Federal Trade Commission is directed, within 18 months
after enactment, to submit a report to Congress that provides a
detailed analysis of the effectiveness and enforcement of the
provisions of this Act and the need (if any) for the Congress
to modify such provisions.
Section 9. Severability
Section 8 provides a severability clause.
Section 10. Effective date
The effective date of the bill is 60 days after the date of
enactment.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SECTION 1030 OF TITLE 18, UNITED STATES CODE
Sec. 1030. Fraud and related activity in connection with computers
(a) Whoever--
(1) * * *
* * * * * * *
(5)(A) * * *
(B) intentionally accesses a protected computer
without authorization, and as a result of such conduct,
recklessly causes damage; [or]
(C) intentionally accesses a protected computer
without authorization, and as a result of such conduct,
causes damage; or
(D) intentionally initiates the transmission of any
unsolicited commercial electronic mail message to a
protected computer in the United States with knowledge
that any domain name, header information, date or time
stamp, originating electronic mail address, or other
information identifying the initiator or the routing of
such message, that is contained in or accompanies such
message, is false or inaccurate;
* * * * * * *
(c) The punishment for an offense under subsection (a) or (b)
of this section is--
(1) * * *
(2)(A) a fine under this title or imprisonment for
not more than one year, or both, in the case of (i) an
offense under subsection (a)(2), (a)(3), (a)(5)(C), or
(a)(6) of this section which does not occur after a
conviction for another offense under this section, or
an attempt to commit an offense punishable under this
subparagraph, or (ii) an offense under subsection
(a)(5)(D) of this section; and
* * * * * * *
(e) As used in this section--
(1) * * *
* * * * * * *
(8) the term ``damage'' means any impairment to the
integrity or availability of data, a program, a system,
or information, that--
(A) * * *
* * * * * * *
(D) threatens public health or safety; [and]
(9) the term ``government entity'' includes the
Government of the United States, any State or political
subdivision of the United States, any foreign country,
and any state, province, municipality, or other
political subdivision of a foreign country[.]; and
(10) the terms ``initiate'', ``initiator'',
``unsolicited commercial electronic mail message'', and
``domain name'' have the meanings given such terms in
section 3 of the Unsolicited Commercial Electronic Mail
Act of 2001.
* * * * * * *
ADDITIONAL VIEWS BY HON. JOHN D. DINGELL
I believe H.R. 718 will go a long way toward eliminating
the insidious problem on the Internet known as ``spam.''
There are some who urged this Committee to make certain
changes that I believe would have seriously impaired the
effectiveness of this anti-spam legislation. I am pleased those
efforts to eviscerate key parts of the bill have been rejected
by the bill's sponsors, Ms. Wilson and Mr. Green.
Spam is no longer a mere nuisance to the 160 million
Americans now using the Internet. It has rapidly degenerated
into an abusive marketing practice. Innocent users are
constantly bombarded with unsolicited commercial messages over
which they have no control. Worse, many of these messages are
pornographic in nature, and include ``teaser'' images inviting
the recipient to visit one adult site on the Web or another.
For many families, these spam messages are more than an
intrusion, they are a personal assault.
Spam also imposes real economic costs on the public. Some
users pay metered charges for Internet access; others,
particularly in rural areas, pay long distance telephone
charges when dialing-up to the Internet. The time spent
downloading unwanted messages translates into real dollars and
cents. And, of course, the slower the Internet connection, the
greater the tab.
Perhaps the greatest cost associated with spam is incurred
by the more than 3,000 Internet Service Providers, or ISPs, in
this country. These companies have little choice but to expand
their server capacity to deal with the proliferation of spam.
Most of these ISPs are small businesses that simply cannot
afford the additional investment required. Some resort to self-
help methods to delete large volumes of bulk e-mail, but this
labor-intensive process is also expensive and, unfortunately,
not very effective.
H.R. 718 contains several means to eliminate the problem of
spam, including an opt-out for individual consumers.
Unfortunately, consumers could spend most of their waking hours
sending opt-out requests and still not reach every spammer on
the Internet.
In my view, the most effective way to eradicate the
Internet of abusive spammers is to put the matter squarely in
the hands of ISPs, and this bill provides tools for ISPs to
deal with the problem directly. ISPs have a direct and
compelling financial incentive to protect both the integrity of
their networks and the quality of service provided to their
customers.
Section 5(b) of this legislation gives ISPs, in addition to
individual consumers, the right to opt-out of receiving spam.
No longer will ISPs have to struggle in vain to rid themselves
of unwanted spam that is clogging their networks and
infuriating their customers. They can elect to opt-out of spam,
and enforce that policy against violators. In my view, it is a
critical element contained in this legislation to protect
consumers, once and for all, from the increasing struggle
against this offensive practice.
Just as important, the bill preserves a right already
available to ISPs under existing law. Section 5(c) permits ISPs
to continue using defensive measures, technical and otherwise,
to block the unwanted messages that overload their networks and
outrage their customers.
The bill also contains important enforcement measures. It
affords individuals and ISPs a private right of action against
spammers who do not comply. It also empowers the Federal Trade
Commission to enforce the bill's anti-spamming provisions, and
carries steep penalties for violators.
I would note, however, that an important enforcement
mechanism contained in the Subcommittee-passed bill was
weakened when the bill was considered by the full Committee,
and is the cause of some concern. The Subcommittee originally
agreed on a compromise that prohibited class action lawsuits,
and instead authorized State Attorneys General to enforce the
bill's anti-spam provisions on behalf of aggrieved citizens in
their respective States. Unfortunately, an amendment at full
Committee had the effect of weakening the State AGs' ability to
pursue wrongdoers by expressly prohibiting the recovery of any
litigation costs associated with an enforcement action.
In my view, it is simply unfair to require the taxpaying
public to foot the legal bill for the damage caused by
spammers. Recovery of reasonable legal fees is properly
included in damage awards to individuals under this bill, and I
believe it should likewise be permitted when the State acts as
an agent on their behalf. If we are serious about putting an
end to spam, as I hope we are, then we should not be creating a
disincentive to enforcing the law against it.
On balance, the bill is a good one, and I was happy to
support it. However, it is imperative that further attempts to
weaken the bill's enforcement provisions are rejected as this
bill moves to the House Floor and thereafter.
John D. Dingell.