Home > 108th Congressional Public Laws > Pub.L. 108-188 To approve the Compact of Free Association, as amended, between the ...Pub.L. 108-188 To approve the Compact of Free Association, as amended, between the ...
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Public Law 108-187
108th Congress
An Act
To regulate interstate commerce by imposing limitations and penalties on
the transmission of unsolicited commercial electronic mail via the
Internet. <<NOTE: Dec. 16, 2003 - [S. 877]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Controlling the
Assault of Non-Solicited Pornography and Marketing Act of 2003.>>
SECTION 1. <<NOTE: 15 USC 7701 note.>> SHORT TITLE.
This Act may be cited as the ``Controlling the Assault of Non-
Solicited Pornography and Marketing Act of 2003'', or the ``CAN-SPAM Act
of 2003''.
SEC. 2. <<NOTE: 15 USC 7701.>> CONGRESSIONAL FINDINGS AND POLICY.
(a) Findings.--The Congress finds the following:
(1) Electronic mail has become an extremely important and
popular means of communication, relied on by millions of
Americans on a daily basis for personal and commercial purposes.
Its low cost and global reach make it extremely convenient and
efficient, and offer unique opportunities for the development
and growth of frictionless commerce.
(2) The convenience and efficiency of electronic mail are
threatened by the extremely rapid growth in the volume of
unsolicited commercial electronic mail. Unsolicited commercial
electronic mail is currently estimated to account for over half
of all electronic mail traffic, up from an estimated 7 percent
in 2001, and the volume continues to rise. Most of these
messages are fraudulent or deceptive in one or more respects.
(3) The receipt of unsolicited commercial electronic mail
may result in costs to recipients who cannot refuse to accept
such mail and who incur costs for the storage of such mail, or
for the time spent accessing, reviewing, and discarding such
mail, or for both.
(4) The receipt of a large number of unwanted messages also
decreases the convenience of electronic mail and creates a risk
that wanted electronic mail messages, both commercial and
noncommercial, will be lost, overlooked, or discarded amidst the
larger volume of unwanted messages, thus reducing the
reliability and usefulness of electronic mail to the recipient.
(5) Some commercial electronic mail contains material that
many recipients may consider vulgar or pornographic in nature.
(6) The growth in unsolicited commercial electronic mail
imposes significant monetary costs on providers of Internet
access services, businesses, and educational and nonprofit
institutions that carry and receive such mail, as there is a
finite volume of mail that such providers, businesses, and
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institutions can handle without further investment in
infrastructure.
(7) Many senders of unsolicited commercial electronic mail
purposefully disguise the source of such mail.
(8) Many senders of unsolicited commercial electronic mail
purposefully include misleading information in the messages'
subject lines in order to induce the recipients to view the
messages.
(9) While some senders of commercial electronic mail
messages provide simple and reliable ways for recipients to
reject (or ``opt-out'' of) receipt of commercial electronic mail
from such senders in the future, other senders provide no such
``opt-out'' mechanism, or refuse to honor the requests of
recipients not to receive electronic mail from such senders in
the future, or both.
(10) Many senders of bulk unsolicited commercial electronic
mail use computer programs to gather large numbers of electronic
mail addresses on an automated basis from Internet websites or
online services where users must post their addresses in order
to make full use of the website or service.
(11) Many States have enacted legislation intended to
regulate or reduce unsolicited commercial electronic mail, but
these statutes impose different standards and requirements. As a
result, they do not appear to have been successful in addressing
the problems associated with unsolicited commercial electronic
mail, in part because, since an electronic mail address does not
specify a geographic location, it can be extremely difficult for
law-abiding businesses to know with which of these disparate
statutes they are required to comply.
(12) The problems associated with the rapid growth and abuse
of unsolicited commercial electronic mail cannot be solved by
Federal legislation alone. The development and adoption of
technological approaches and the pursuit of cooperative efforts
with other countries will be necessary as well.
(b) Congressional Determination of Public Policy.--On the basis of
the findings in subsection (a), the Congress determines that--
(1) there is a substantial government interest in regulation
of commercial electronic mail on a nationwide basis;
(2) senders of commercial electronic mail should not mislead
recipients as to the source or content of such mail; and
(3) recipients of commercial electronic mail have a right to
decline to receive additional commercial electronic mail from
the same source.
SEC. 3. <<NOTE: 15 USC 7702.>> DEFINITIONS.
In this Act:
(1) Affirmative consent.--The term ``affirmative consent'',
when used with respect to a commercial electronic mail message,
means that--
(A) the recipient expressly consented to receive the
message, either in response to a clear and conspicuous
request for such consent or at the recipient's own
initiative; and
(B) if the message is from a party other than the
party to which the recipient communicated such consent,
the recipient was given clear and conspicuous notice at
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the time the consent was communicated that the
recipient's electronic mail address could be transferred
to such other party for the purpose of initiating
commercial electronic mail messages.
(2) Commercial electronic mail message.--
(A) In general.--The term ``commercial electronic
mail message'' means any electronic mail message the
primary purpose of which is the commercial advertisement
or promotion of a commercial product or service
(including content on an Internet website operated for a
commercial purpose).
(B) Transactional or relationship messages.--The
term ``commercial electronic mail message'' does not
include a transactional or relationship message.
(C) Regulations <<NOTE: Deadline.>> regarding
primary purpose.--Not later than 12 months after the
date of the enactment of this Act, the Commission shall
issue regulations pursuant to section 13 defining the
relevant criteria to facilitate the determination of the
primary purpose of an electronic mail message.
(D) Reference to company or website.--The inclusion
of a reference to a commercial entity or a link to the
website of a commercial entity in an electronic mail
message does not, by itself, cause such message to be
treated as a commercial electronic mail message for
purposes of this Act if the contents or circumstances of
the message indicate a primary purpose other than
commercial advertisement or promotion of a commercial
product or service.
(3) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(4) Domain name.--The term ``domain name'' means any
alphanumeric designation which is registered with or assigned by
any domain name registrar, domain name registry, or other domain
name registration authority as part of an electronic address on
the Internet.
(5) Electronic mail address.--The term ``electronic mail
address'' means a destination, commonly expressed as a string of
characters, consisting of a unique user name or mailbox
(commonly referred to as the ``local part'') and a reference to
an Internet domain (commonly referred to as the ``domain
part''), whether or not displayed, to which an electronic mail
message can be sent or delivered.
(6) Electronic mail message.--The term ``electronic mail
message'' means a message sent to a unique electronic mail
address.
(7) FTC act.--The term ``FTC Act'' means the Federal Trade
Commission Act (15 U.S.C. 41 et seq.).
(8) Header information.--The term ``header information''
means the source, destination, and routing information attached
to an electronic mail message, including the originating domain
name and originating electronic mail address, and any other
information that appears in the line identifying, or purporting
to identify, a person initiating the message.
(9) Initiate.--The term ``initiate'', when used with respect
to a commercial electronic mail message, means to originate or
transmit such message or to procure the origination or
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transmission of such message, but shall not include actions that
constitute routine conveyance of such message. For purposes of
this paragraph, more than one person may be considered to have
initiated a message.
(10) Internet.--The term ``Internet'' has the meaning given
that term in the Internet Tax Freedom Act (47 U.S.C. 151 nt).
(11) Internet access service.--The term ``Internet access
service'' has the meaning given that term in section 231(e)(4)
of the Communications Act of 1934 (47 U.S.C. 231(e)(4)).
(12) Procure.--The term ``procure'', when used with respect
to the initiation of a commercial electronic mail message, means
intentionally to pay or provide other consideration to, or
induce, another person to initiate such a message on one's
behalf.
(13) Protected computer.--The term ``protected computer''
has the meaning given that term in section 1030(e)(2)(B) of
title 18, United States Code.
(14) Recipient.--The term ``recipient'', when used with
respect to a commercial electronic mail message, means an
authorized user of the electronic mail address to which the
message was sent or delivered. If a recipient of a commercial
electronic mail message has one or more electronic mail
addresses in addition to the address to which the message was
sent or delivered, the recipient shall be treated as a separate
recipient with respect to each such address. If an electronic
mail address is reassigned to a new user, the new user shall not
be treated as a recipient of any commercial electronic mail
message sent or delivered to that address before it was
reassigned.
(15) Routine conveyance.--The term ``routine conveyance''
means the transmission, routing, relaying, handling, or storing,
through an automatic technical process, of an electronic mail
message for which another person has identified the recipients
or provided the recipient addresses.
(16) Sender.--
(A) In general.--Except as provided in subparagraph
(B), the term ``sender'', when used with respect to a
commercial electronic mail message, means a person who
initiates such a message and whose product, service, or
Internet web site is advertised or promoted by the
message.
(B) Separate lines of business or divisions.--If an
entity operates through separate lines of business or
divisions and holds itself out to the recipient
throughout the message as that particular line of
business or division rather than as the entity of which
such line of business or division is a part, then the
line of business or the division shall be treated as the
sender of such message for purposes of this Act.
(17) Transactional or relationship message.--
(A) In general.--The term ``transactional or
relationship message'' means an electronic mail message
the primary purpose of which is--
(i) to facilitate, complete, or confirm a
commercial transaction that the recipient has
previously agreed to enter into with the sender;
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(ii) to provide warranty information, product
recall information, or safety or security
information with respect to a commercial product
or service used or purchased by the recipient;
(iii) to provide--
(I) notification concerning a change
in the terms or features of;
(II) notification of a change in the
recipient's standing or status with
respect to; or
(III) at regular periodic intervals,
account balance information or other
type of account statement with respect
to,
a subscription, membership, account, loan, or
comparable ongoing commercial relationship
involving the ongoing purchase or use by the
recipient of products or services offered by the
sender;
(iv) to provide information directly related
to an employment relationship or related benefit
plan in which the recipient is currently involved,
participating, or enrolled; or
(v) to deliver goods or services, including
product updates or upgrades, that the recipient is
entitled to receive under the terms of a
transaction that the recipient has previously
agreed to enter into with the sender.
(B) Modification of definition.--The Commission by
regulation pursuant to section 13 may modify the
definition in subparagraph (A) to expand or contract the
categories of messages that are treated as transactional
or relationship messages for purposes of this Act to the
extent that such modification is necessary to
accommodate changes in electronic mail technology or
practices and accomplish the purposes of this Act.
SEC. 4. PROHIBITION <<NOTE: 15 USC 7703.>> AGAINST PREDATORY AND
ABUSIVE COMMERCIAL E-MAIL.
(a) Offense.--
(1) In general.--Chapter 47 of title 18, United States Code,
is amended by adding at the end the following new section:
``Sec. 1037. Fraud and related activity in connection with
electronic mail
``(a) In General.--Whoever, in or affecting interstate or foreign
commerce, knowingly--
``(1) accesses a protected computer without authorization,
and intentionally initiates the transmission of multiple
commercial electronic mail messages from or through such
computer,
``(2) uses a protected computer to relay or retransmit
multiple commercial electronic mail messages, with the intent to
deceive or mislead recipients, or any Internet access service,
as to the origin of such messages,
``(3) materially falsifies header information in multiple
commercial electronic mail messages and intentionally initiates
the transmission of such messages,
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