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Can Spam Act Text



15 U.S.C. §7701 et seq.Title 15. Commerce and TradeChapter 103. Controlling The Assault of Non-solicited Pornography and MarketingAct of 2003§ 7701. Congressional findings and policy(a) FindingsThe Congress finds the following:(1) Electronic mail has become an extremely important and popular means ofcommunication, relied on by millions of Americans on a daily basis for personaland commercial purposes. Its low cost and global reach make it extremelyconvenient and efficient, and offer unique opportunities for the development andgrowth of frictionless commerce.(2) The convenience and efficiency of electronic mail are threatened by theextremely rapid growth in the volume of unsolicited commercial electronic mail.Unsolicited commercial electronic mail is currently estimated to account for overhalf of all electronic mail traffic, up from an estimated 7 percent in 2001, and thevolume continues to rise. Most of these messages are fraudulent or deceptive inone or more respects.(3) The receipt of unsolicited commercial electronic mail may result in costs torecipients who cannot refuse to accept such mail and who incur costs for thestorage of such mail, or for the time spent accessing, reviewing, and discardingsuch mail, or for both.(4) The receipt of a large number of unwanted messages also decreases theconvenience of electronic mail and creates a risk that wanted electronic mailmessages, both commercial and noncommercial, will be lost, overlooked, ordiscarded amidst the larger volume of unwanted messages, thus reducing thereliability and usefulness of electronic mail to the recipient.(5) Some commercial electronic mail contains material that many recipients mayconsider vulgar or pornographic in nature.(6) The growth in unsolicited commercial electronic mail imposes significantmonetary costs on providers of Internet access services, businesses, andeducational and nonprofit institutions that carry and receive such mail, as there isa finite volume of mail that such providers, businesses, and institutions can handlewithout further investment in infrastructure.(7) Many senders of unsolicited commercial electronic mail purposefully disguisethe source of such mail.(8) Many senders of unsolicited commercial electronic mail purposefully includemisleading information in the messages' subject lines in order to induce therecipients to view the messages.(9) While some senders of commercial electronic mail messages provide simpleand reliable ways for recipients to reject (or "opt-out" of) receipt of commercialelectronic 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 receiveelectronic mail from such senders in the future, or both.(10) Many senders of bulk unsolicited commercial electronic mail use computerprograms to gather large numbers of electronic mail addresses on an automatedbasis from Internet websites or online services where users must post theiraddresses in order to make full use of the website or service.(11) Many States have enacted legislation intended to regulate or reduceunsolicited commercial electronic mail, but these statutes impose differentstandards and requirements. As a result, they do not appear to have beensuccessful in addressing the problems associated with unsolicited commercialelectronic mail, in part because, since an electronic mail address does not specifya geographic location, it can be extremely difficult for law-abiding businesses toknow with which of these disparate statutes they are required to comply.(12) The problems associated with the rapid growth and abuse of unsolicitedcommercial electronic mail cannot be solved by Federal legislation alone. Thedevelopment and adoption of technological approaches and the pursuit ofcooperative efforts with other countries will be necessary as well.(b) Congressional determination of public policyOn the basis of the findings in subsection (a) of this section, the Congress determinesthat—(1) there is a substantial government interest in regulation of commercialelectronic mail on a nationwide basis;(2) senders of commercial electronic mail should not mislead recipients as to thesource or content of such mail; and(3) recipients of commercial electronic mail have a right to decline to receiveadditional commercial electronic mail from the same source.
§ 7702. DefinitionsIn this chapter:(1) Affirmative consentThe term "affirmative consent", when used with respect to a commercialelectronic mail message, means that—(A) the recipient expressly consented to receive the message, either inresponse to a clear and conspicuous request for such consent or at therecipient's own initiative; and(B) if the message is from a party other than the party to which therecipient communicated such consent, the recipient was given clear andconspicuous notice at the time the consent was communicated that therecipient's electronic mail address could be transferred to such other partyfor the purpose of initiating commercial electronic mail messages.(2) Commercial electronic mail message(A) In generalThe term "commercial electronic mail message" means any electronic mailmessage the primary purpose of which is the commercial advertisement orpromotion of a commercial product or service (including content on anInternet website operated for a commercial purpose).(B) Transactional or relationship messagesThe term "commercial electronic mail message" does not include atransactional or relationship message.(C) Regulations regarding primary purposeNot later than 12 months after December 16, 2003, the Commission shallissue regulations pursuant to section 7711 of this title defining the relevantcriteria to facilitate the determination of the primary purpose of anelectronic mail message.(D) Reference to company or websiteThe inclusion of a reference to a commercial entity or a link to the websiteof a commercial entity in an electronic mail message does not, by itself,cause such message to be treated as a commercial electronic mail messagefor purposes of this chapter if the contents or circumstances of themessage indicate a primary purpose other than commercial advertisementor promotion of a commercial product or service.(3) CommissionThe term "Commission" means the Federal Trade Commission.(4) Domain nameThe term "domain name" means any alphanumeric designation which is registeredwith or assigned by any domain name registrar, domain name registry, or otherdomain name registration authority as part of an electronic address on theInternet.(5) Electronic mail addressThe term "electronic mail address" means a destination, commonly expressed as astring of characters, consisting of a unique user name or mailbox (commonlyreferred to as the "local part") and a reference to an Internet domain (commonlyreferred to as the "domain part"), whether or not displayed, to which an electronicmail message can be sent or delivered.(6) Electronic mail messageThe term "electronic mail message" means a message sent to a unique electronicmail address.(7) FTC ActThe term "FTC Act" means the Federal Trade Commission Act (15 U.S.C. 41 etseq.).(8) Header informationThe term "header information" means the source, destination, and routinginformation attached to an electronic mail message, including the originatingdomain name and originating electronic mail address, and any other informationthat appears in the line identifying, or purporting to identify, a person initiatingthe message.(9) InitiateThe term "initiate", when used with respect to a commercial electronic mailmessage, means to originate or transmit such message or to procure theorigination or transmission of such message, but shall not include actions thatconstitute routine conveyance of such message. For purposes of this paragraph,more than one person may be considered to have initiated a message.(10) InternetThe term "Internet" has the meaning given that term in the Internet Tax FreedomAct (47 U.S.C. 151 nt).(11) Internet access serviceThe term "Internet access service" has the meaning given that term in section231(e)(4) of Title 47.(12) ProcureThe term "procure", when used with respect to the initiation of a commercialelectronic mail message, means intentionally to pay or provide otherconsideration to, or induce, another person to initiate such a message on one'sbehalf.(13) Protected computerThe term "protected computer" has the meaning given that term in section1030(e)(2)(B) of Title 18.(14) RecipientThe term "recipient", when used with respect to a commercial electronic mailmessage, means an authorized user of the electronic mail address to which themessage was sent or delivered. If a recipient of a commercial electronic mailmessage has one or more electronic mail addresses in addition to the address towhich the message was sent or delivered, the recipient shall be treated as aseparate recipient with respect to each such address. If an electronic mail addressis reassigned to a new user, the new user shall not be treated as a recipient of anycommercial electronic mail message sent or delivered to that address before it wasreassigned.(15) Routine conveyanceThe term "routine conveyance" means the transmission, routing, relaying,handling, or storing, through an automatic technical process, of an electronic mailmessage for which another person has identified the recipients or provided therecipient addresses.(16) Sender
(A) In generalExcept as provided in subparagraph (B), the term "sender", when usedwith respect to a commercial electronic mail message, means a personwho initiates such a message and whose product, service, or Internet website is advertised or promoted by the message.(B) Separate lines of business or divisionsIf an entity operates through separate lines of business or divisions andholds itself out to the recipient throughout the message as that particularline of business or division rather than as the entity of which such line ofbusiness or division is a part, then the line of business or the division shallbe treated as the sender of such message for purposes of this chapter.(17) Transactional or relationship message(A) In generalThe term "transactional or relationship message" means an electronic mailmessage the primary purpose of which is—(i) to facilitate, complete, or confirm a commercial transaction thatthe recipient has previously agreed to enter into with the sender;(ii) to provide warranty information, product recall information, orsafety or security information with respect to a commercial productor service used or purchased by the recipient;(iii) to provide—(I) notification concerning a change in the terms or featuresof;(II) notification of a change in the recipient's standing orstatus with respect to; or(III) at regular periodic intervals, account balanceinformation or other type of account statement with respectto, a subscription, membership, account, loan, orcomparable ongoing commercial relationship involving theongoing purchase or use by the recipient of products orservices offered by the sender;
(iv) to provide information directly related to an employmentrelationship or related benefit plan in which the recipient iscurrently involved, participating, or enrolled; or(v) to deliver goods or services, including product updates orupgrades, that the recipient is entitled to receive under the terms ofa transaction that the recipient has previously agreed to enter intowith the sender.(B) Modification of definitionThe Commission by regulation pursuant to section 7711 of this title maymodify the definition in subparagraph (A) to expand or contract thecategories of messages that are treated as transactional or relationshipmessages for purposes of this chapter to the extent that such modificationis necessary to accommodate changes in electronic mail technology orpractices and accomplish the purposes of this chapter.§ 7703. Prohibition against predatory and abusive commercial e--mail(a) Omitted(b) Omitted(c) Sense of CongressIt is the sense of Congress that—(1) Spam has become the method of choice for those who distribute pornography,perpetrate fraudulent schemes, and introduce viruses, worms, and Trojan horsesinto personal and business computer systems; and(2) the Department of Justice should use all existing law enforcement tools toinvestigate and prosecute those who send bulk commercial e-mail to facilitate thecommission of Federal crimes, including the tools contained in chapters 47 and 63of Title 18 (relating to fraud and false statements); chapter 71 of Title 18 (relatingto obscenity); chapter 110 of Title 18 (relating to the sexual exploitation ofchildren); and chapter 95 of Title 18 (relating to racketeering), as appropriate.§ 7704. Other protections for users of commercial electronic mail(a) Requirements for transmission of messages(1) Prohibition of false or misleading transmission informationIt is unlawful for any person to initiate the transmission, to a protected computer,of a commercial electronic mail message, or a transactional or relationshipmessage, that contains, or is accompanied by, header information that ismaterially false or materially misleading. For purposes of this paragraph—(A) header information that is technically accurate but includes anoriginating electronic mail address, domain name, or Internet Protocoladdress the access to which for purposes of initiating the message wasobtained by means of false or fraudulent pretenses or representations shallbe considered materially misleading;(B) a "from" line (the line identifying or purporting to identify a personinitiating the message) that accurately identifies any person who initiatedthe message shall not be considered materially false or materiallymisleading; and(C) header information shall be considered materially misleading if it failsto identify accurately a protected computer used to initiate the messagebecause the person initiating the message knowingly uses anotherprotected computer to relay or retransmit the message for purposes ofdisguising its origin.(2) Prohibition of deceptive subject headingsIt is unlawful for any person to initiate the transmission to a protected computer ofa commercial electronic mail message if such person has actual knowledge, orknowledge fairly implied on the basis of objective circumstances, that a subjectheading of the message would be likely to mislead a recipient, acting reasonablyunder the circumstances, about a material fact regarding the contents or subjectmatter of the message (consistent with the criteria used in enforcement of section45 of this title).(3) Inclusion of return address or comparable mechanism in commercialelectronic mail--(A) In generalIt is unlawful for any person to initiate the transmission to a protectedcomputer of a commercial electronic mail message that does not contain afunctioning return electronic mail address or other Internet-basedmechanism, clearly and conspicuously displayed, that—(i) a recipient may use to submit, in a manner specified in themessage, a reply electronic mail message or other form of Internetbasedcommunication requesting not to receive future commercial
electronic mail messages from that sender at the electronic mailaddress where the message was received; and(ii) remains capable of receiving such messages orcommunications for no less than 30 days after the transmission ofthe original message.(B) More detailed options possibleThe person initiating a commercial electronic mail message may complywith subparagraph (A)(i) by providing the recipient a list or menu fromwhich the recipient may choose the specific types of commercialelectronic mail messages the recipient wants to receive or does not want toreceive from the sender, if the list or menu includes an option under whichthe recipient may choose not to receive any commercial electronic mailmessages from the sender.(C) Temporary inability to receive messages or process requestsA return electronic mail address or other mechanism does not fail tosatisfy the requirements of subparagraph (A) if it is unexpectedly andtemporarily unable to receive messages or process requests due to atechnical problem beyond the control of the sender if the problem iscorrected within a reasonable time period.(4) Prohibition of transmission of commercial electronic mail after objection(A) In generalIf a recipient makes a request using a mechanism provided pursuant toparagraph (3) not to receive some or any commercial electronic mailmessages from such sender, then it is unlawful—(i) for the sender to initiate the transmission to the recipient, morethan 10 business days after the receipt of such request, of acommercial electronic mail message that falls within the scope ofthe request;(ii) for any person acting on behalf of the sender to initiate thetransmission to the recipient, more than 10 business days after thereceipt of such request, of a commercial electronic mail messagewith actual knowledge, or knowledge fairly implied on the basis ofobjective circumstances, that such message falls within the scopeof the request;
(iii) for any person acting on behalf of the sender to assist ininitiating the transmission to the recipient, through the provision orselection of addresses to which the message will be sent, of acommercial electronic mail message with actual knowledge, orknowledge fairly implied on the basis of objective circumstances,that such message would violate clause (i) or (ii); or(iv) for the sender, or any other person who knows that therecipient has made such a request, to sell, lease, exchange, orotherwise transfer or release the electronic mail address of therecipient (including through any transaction or other transferinvolving mailing lists bearing the electronic mail address of therecipient) for any purpose other than compliance with this chapteror other provision of law.(B) Subsequent affirmative consentA prohibition in subparagraph (A) does not apply if there is affirmativeconsent by the recipient subsequent to the request under subparagraph (A).(5) Inclusion of identifier, opt-out, and physical address in commercial electronicmail(A) It is unlawful for any person to initiate the transmission of anycommercial electronic mail message to a protected computer unless themessage provides—(i) clear and conspicuous identification that the message is anadvertisement or solicitation;(ii) clear and conspicuous notice of the opportunity underparagraph (3) to decline to receive further commercial electronicmail messages from the sender; and(iii) a valid physical postal address of the sender.(B) Subparagraph (A)(i) does not apply to the transmission of acommercial electronic mail message if the recipient has given prioraffirmative consent to receipt of the message.(6) MateriallyFor purposes of paragraph (1), the term "materially", when used with respect tofalse or misleading header information, includes the alteration or concealment ofheader information in a manner that would impair the ability of an Internet accessservice processing the message on behalf of a recipient, a person alleging aviolation of this section, or a law enforcement agency to identify, locate, orrespond to a person who initiated the electronic mail message or to investigate thealleged violation, or the ability of a recipient of the message to respond to aperson who initiated the electronic message.(b) Aggravated violations relating to commercial electronic mail(1) Address harvesting and dictionary attacks--(A) In generalIt is unlawful for any person to initiate the transmission, to a protectedcomputer, of a commercial electronic mail message that is unlawful undersubsection (a) of this section, or to assist in the origination of suchmessage through the provision or selection of addresses to which themessage will be transmitted, if such person had actual knowledge, orknowledge fairly implied on the basis of objective circumstances, that—(i) the electronic mail address of the recipient was obtained usingan automated means from an Internet website or proprietary onlineservice operated by another person, and such website or onlineservice included, at the time the address was obtained, a noticestating that the operator of such website or online service will notgive, sell, or otherwise transfer addresses maintained by suchwebsite or online service to any other party for the purposes ofinitiating, or enabling others to initiate, electronic mail messages;or(ii) the electronic mail address of the recipient was obtained usingan automated means that generates possible electronic mailaddresses by combining names, letters, or numbers into numerouspermutations.(B) DisclaimerNothing in this paragraph creates an ownership or proprietary interest insuch electronic mail addresses.(2) Automated creation of multiple electronic mail accountsIt is unlawful for any person to use scripts or other automated means to registerfor multiple electronic mail accounts or online user accounts from which totransmit to a protected computer, or enable another person to transmit to aprotected computer, a commercial electronic mail message that is unlawful undersubsection (a) of this section.
(3) Relay or retransmission through unauthorized accessIt is unlawful for any person knowingly to relay or retransmit a commercialelectronic mail message that is unlawful under subsection (a) of this section froma protected computer or computer network that such person has accessed withoutauthorization.(c) Supplementary rulemaking authorityThe Commission shall by regulation, pursuant to section 7711 of this title--(1) modify the 10-business-day period under subsection (a)(4)(A) or subsection(a)(4)(B) of this section, or both, if the Commission determines that a differentperiod would be more reasonable after taking into account—(A) the purposes of subsection (a) of this section;(B) the interests of recipients of commercial electronic mail; and(C) the burdens imposed on senders of lawful commercial electronic mail;and(2) specify additional activities or practices to which subsection (b) of this sectionapplies if the Commission determines that those activities or practices arecontributing substantially to the proliferation of commercial electronic mailmessages that are unlawful under subsection (a) of this section.(d) Requirement to place warning labels on commercial electronic mail containingsexually oriented material(1) In generalNo person may initiate in or affecting interstate commerce the transmission, to aprotected computer, of any commercial electronic mail message that includessexually oriented material and--(A) fail to include in subject heading for the electronic mail message themarks or notices prescribed by the Commission under this subsection; or(B) fail to provide that the matter in the message that is initially viewableto the recipient, when the message is opened by any recipient and absentany further actions by the recipient, includes only—(i) to the extent required or authorized pursuant to paragraph (2),any such marks or notices;
(ii) the information required to be included in the message pursuantto subsection (a)(5) of this section; and(iii) instructions on how to access, or a mechanism to access, thesexually oriented material.(2) Prior affirmative consentParagraph (1) does not apply to the transmission of an electronic mail message ifthe recipient has given prior affirmative consent to receipt of the message.(3) Prescription of marks and noticesNot later than 120 days after December 16, 2003, the Commission in consultationwith the Attorney General shall prescribe clearly identifiable marks or notices tobe included in or associated with commercial electronic mail that containssexually oriented material, in order to inform the recipient of that fact and tofacilitate filtering of such electronic mail. The Commission shall publish in theFederal Register and provide notice to the public of the marks or noticesprescribed under this paragraph.(4) DefinitionIn this subsection, the term "sexually oriented material" means any material thatdepicts sexually explicit conduct (as that term is defined in section 2256 of Title18), unless the depiction constitutes a small and insignificant part of the whole,the remainder of which is not primarily devoted to sexual matters.(5) PenaltyWhoever knowingly violates paragraph (1) shall be fined under Title 18 orimprisoned not more than 5 years, or both.§ 7705. Businesses knowingly promoted by electronic mail with false or misleadingtransmission information(a) In generalIt is unlawful for a person to promote, or allow the promotion of, that person's trade orbusiness, or goods, products, property, or services sold, offered for sale, leased or offeredfor lease, or otherwise made available through that trade or business, in a commercialelectronic mail message the transmission of which is in violation of section 7704(a)(1) ofthis title if that person—
(1) knows, or should have known in the ordinary course of that person's trade orbusiness, that the goods, products, property, or services sold, offered for sale,leased or offered for lease, or otherwise made available through that trade orbusiness were being promoted in such a message;(2) received or expected to receive an economic benefit from such promotion; and(3) took no reasonable action—(A) to prevent the transmission; or(B) to detect the transmission and report it to the Commission.(b) Limited enforcement against third parties(1) In generalExcept as provided in paragraph (2), a person (hereinafter referred to as the "thirdparty") that provides goods, products, property, or services to another person thatviolates subsection (a) of this section shall not be held liable for such violation.(2) ExceptionLiability for a violation of subsection (a) of this section shall be imputed to a thirdparty that provides goods, products, property, or services to another person thatviolates subsection (a) of this section if that third party—(A) owns, or has a greater than 50 percent ownership or economic interestin, the trade or business of the person that violated subsection (a) of thissection; or(B) (i) has actual knowledge that goods, products, property, or servicesare promoted in a commercial electronic mail message the transmission ofwhich is in violation of section 7704(a)(1) of this title; and(ii) receives, or expects to receive, an economic benefit from suchpromotion.(c) Exclusive enforcement by FTCSubsections (f) and (g) of section 7706 of this title do not apply to violations of thissection.(d) Savings provision
Except as provided in section 7706(f)(8) of this title, nothing in this section may beconstrued to limit or prevent any action that may be taken under this chapter with respectto any violation of any other section of this chapter.§ 7706. Enforcement generally(a) Violation is unfair or deceptive act or practiceExcept as provided in subsection (b) of this section, this chapter shall be enforced by theCommission as if the violation of this chapter were an unfair or deceptive act or practiceproscribed under section 57a(a)(1)(B) of this title.(b) Enforcement by certain other agenciesCompliance with this chapter shall be enforced—(1) under section 1818 of Title 12, in the case of—(A) national banks, and Federal branches and Federal agencies of foreignbanks, by the Office of the Comptroller of the Currency;(B) member banks of the Federal Reserve System (other than nationalbanks),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 ReserveAct (12 U.S.C. 601 and 611), and bank holding companies, by the Board;(C) banks insured by the Federal Deposit Insurance Corporation (otherthan members of the Federal Reserve System) and insured State branchesof foreign banks, by the Board of Directors of the Federal DepositInsurance Corporation; and(D) savings associations the deposits of which are insured by the FederalDeposit Insurance Corporation, by the Director of the Office of ThriftSupervision;(2) under the Federal Credit Union Act (12 U.S.C. 1751 et seq.) by the Board ofthe National Credit Union Administration with respect to any Federally insuredcredit union;(3) under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) by theSecurities 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 theSecurities 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 theSecurities and Exchange Commission with respect to investment advisersregistered under that Act;(6) under State insurance law in the case of any person engaged in providinginsurance, by the applicable State insurance authority of the State in which theperson is domiciled, subject to section 6701 of this title, except that in any State inwhich the State insurance authority elects not to exercise this power, theenforcement authority pursuant to this chapter shall be exercised by theCommission in accordance with subsection (a) of this section;(7) under part A of subtitle VII of Title 49 by the Secretary of Transportation withrespect 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 asprovided in section 406 of that Act (7 U.S.C. 226, 227)), by the Secretary ofAgriculture 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 FarmCredit Administration with respect to any Federal land bank, Federal land bankassociation, Federal intermediate credit bank, or production credit association;and(10) under the Communications Act of 1934 (47 U.S.C. 151 et seq.) by theFederal Communications Commission with respect to any person subject to theprovisions of that Act.(c) Exercise of certain powersFor the purpose of the exercise by any agency referred to in subsection (b) of this sectionof its powers under any Act referred to in that subsection, a violation of this chapter isdeemed to be a violation of a Federal Trade Commission trade regulation rule. In additionto its powers under any provision of law specifically referred to in subsection (b) of thissection, each of the agencies referred to in that subsection may exercise, for the purposeof enforcing compliance with any requirement imposed under this chapter, any otherauthority conferred on it by law.(d) Actions by the CommissionThe Commission shall prevent any person from violating this chapter in the samemanner, 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. 41et seq.) were incorporated into and made a part of thischapter. Any entity that violates any provision of that subtitle is subject to the penaltiesand entitled to the privileges and immunities provided in the Federal Trade CommissionAct in the same manner, by the same means, and with the same jurisdiction, power, andduties as though all applicable terms and provisions of the Federal Trade CommissionAct were incorporated into and made a part of that subtitle.(e) Availability of cease-and-desist orders and injunctive relief without showing ofknowledgeNotwithstanding any other provision of this chapter, in any proceeding or action pursuantto subsection (a), (b), (c), or (d) of this section to enforce compliance, through an order tocease and desist or an injunction, with section 7704(a)(1)(C) of this title, section7704(a)(2) of this title, clause (ii), (iii), or (iv) of section 7704(a)(4)(A) of this title,section 7704(b)(1)(A) of this title, or section 7704(b)(3) of this title, neither theCommission nor the Federal Communications Commission shall be required to allege orprove the state of mind required by such section or subparagraph.(f) Enforcement by States(1) Civil actionIn any case in which the attorney general of a State, or an official or agency of aState, has reason to believe that an interest of the residents of that State has beenor is threatened or adversely affected by any person who violates paragraph (1) or(2) of section 7704(a) of this title, who violates section 7704(d) of this title, orwho engages in a pattern or practice that violates paragraph (3), (4), or (5) ofsection 7704(a) of this title, the attorney general, official, or agency of the State,as parens patriae, may bring a civil action on behalf of the residents of the State ina district court of the United States of appropriate jurisdiction—(A) to enjoin further violation of section 7704 of this title by thedefendant; or(B) to obtain damages on behalf of residents of the State, in an amountequal to the greater of--(i) the actual monetary loss suffered by such residents; or(ii) the amount determined under paragraph (3).(2) Availability of injunctive relief without showing of knowledgeNotwithstanding any other provision of this chapter, in a civil action underparagraph (1)(A) of this subsection, the attorney general, official, or agency of the
State shall not be required to allege or prove the state of mind required by section7704(a)(1)(C) of this title, section 7704(a)(2) of this title, clause (ii), (iii), or (iv)of section 7704(a)(4)(A) of this title, section 7704(b)(1)(A) of this title, or section7704(b)(3) of this title.(3) Statutory damages(A) In generalFor purposes of paragraph (1)(B)(ii), the amount determined under thisparagraph is the amount calculated by multiplying the number ofviolations (with each separately addressed unlawful message received byor addressed to such residents treated as a separate violation) by up to$250.(B) LimitationFor any violation of section 7704 of this title (other than section7704(a)(1) of this title), the amount determined under subparagraph (A)may not exceed $2,000,000.(C) Aggravated damagesThe court may increase a damage award to an amount equal to not morethan three times the amount otherwise available under this paragraph if—(i) the court determines that the defendant committed the violationwillfully and knowingly; or(ii) the defendant's unlawful activity included one or more of theaggravating violations set forth in section 7704(b) of this title.(D) Reduction of damagesIn assessing damages under subparagraph (A), the court may considerwhether—(i) the defendant has established and implemented, with due care,commercially reasonable practices and procedures designed toeffectively prevent such violations; or(ii) the violation occurred despite commercially reasonable effortsto maintain compliance the practices and procedures to whichreference is made in clause (i).(4) Attorney fees
In the case of any successful action under paragraph (1), the court, in itsdiscretion, may award the costs of the action and reasonable attorney fees to theState.(5) Rights of Federal regulatorsThe State shall serve prior written notice of any action under paragraph (1) uponthe Federal Trade Commission or the appropriate Federal regulator determinedunder subsection (b) of this section and provide the Commission or appropriateFederal regulator with a copy of its complaint, except in any case in which suchprior notice is not feasible, in which case the State shall serve such noticeimmediately upon instituting such action. The Federal Trade Commission orappropriate Federal regulator shall have the right—(A) to intervene in the action;(B) upon so intervening, to be heard on all matters arising therein;(C) to remove the action to the appropriate United States district court; and(D) to file petitions for appeal.(6) ConstructionFor purposes of bringing any civil action under paragraph (1), nothing in thischapter shall be construed to prevent an attorney general of a State fromexercising the powers conferred on the attorney general by the laws of that Stateto—(A) conduct investigations;(B) administer oaths or affirmations; or(C) compel the attendance of witnesses or the production of documentaryand other evidence.(7) Venue; service of process(A) VenueAny action brought under paragraph (1) may be brought in the districtcourt of the United States that meets applicable requirements relating tovenue under section 1391 of Title 28.(B) Service of process
In an action brought under paragraph (1), process may be served in anydistrict in which the defendant—(i) is an inhabitant; or(ii) maintains a physical place of business.(8) Limitation on State action while Federal action is pendingIf the Commission, or other appropriate Federal agency under subsection (b) ofthis section, has instituted a civil action or an administrative action for violation ofthis chapter, no State attorney general, or official or agency of a State, may bringan action under this subsection during the pendency of that action against anydefendant named in the complaint of the Commission or the other agency for anyviolation of this chapter alleged in the complaint.(9) Requisite scienter for certain civil actionsExcept as provided in section 7704(a)(1)(C) of this title, section 7704(a)(2) of thistitle, clause (ii), (iii), or (iv) of section 7704(a)(4)(A) of this title, section7704(b)(1)(A) of this title, or section 7704(b)(3) of this title, in a civil actionbrought by a State attorney general, or an official or agency of a State, to recovermonetary damages for a violation of this chapter, the court shall not grant therelief sought unless the attorney general, official, or agency establishes that thedefendant acted with actual knowledge, or knowledge fairly implied on the basisof objective circumstances, of the act or omission that constitutes the violation.(g) Action by provider of Internet access service(1) Action authorizedA provider of Internet access service adversely affected by a violation of section7704(a)(1) of this title, 7704(b) of this title, or 7704(d) of this title, or a pattern orpractice that violates paragraph (2), (3), (4), or (5) of section 7704(a) of this title,may bring a civil action in any district court of the United States with jurisdictionover the defendant—(A) to enjoin further violation by the defendant; or(B) to recover damages in an amount equal to the greater of—(i) actual monetary loss incurred by the provider of Internet accessservice as a result of such violation; or(ii) the amount determined under paragraph (3).
(2) Special definition of "procure"In any action brought under paragraph (1), this chapter shall be applied as if thedefinition of the term "procure" in section 7702(12) of this title contained, after"behalf" the words "with actual knowledge, or by consciously avoiding knowing,whether such person is engaging, or will engage, in a pattern or practice thatviolates this chapter".(3) Statutory damages(A) In generalFor purposes of paragraph (1)(B)(ii), the amount determined under thisparagraph is the amount calculated by multiplying the number ofviolations (with each separately addressed unlawful message that istransmitted or attempted to be transmitted over the facilities of theprovider of Internet access service, or that is transmitted or attempted to betransmitted to an electronic mail address obtained from the provider ofInternet access service in violation of section 7704(b)(1)(A)(i) of this title,treated as a separate violation) by—(i) up to $100, in the case of a violation of section 7704(a)(1) ofthis title; or(ii) up to $25, in the case of any other violation of section 7704 ofthis title.(B) LimitationFor any violation of section 7704 of this title (other than section7704(a)(1) of this title), the amount determined under subparagraph (A)may not exceed $1,000,000.(C) Aggravated damagesThe court may increase a damage award to an amount equal to not morethan three times the amount otherwise available under this paragraph if—(i) the court determines that the defendant committed the violationwillfully and knowingly; or(ii) the defendant's unlawful activity included one or more of theaggravated violations set forth in section 7704(b) of this title.(D) Reduction of damages
In assessing damages under subparagraph (A), the court may considerwhether—(i) the defendant has established and implemented, with due care,commercially reasonable practices and procedures designed toeffectively prevent such violations; or(ii) the violation occurred despite commercially reasonable effortsto maintain compliance with the practices and procedures to whichreference is made in clause (i).(4) Attorney feesIn any action brought pursuant to paragraph (1), the court may, in its discretion,require an undertaking for the payment of the costs of such action, and assessreasonable costs, including reasonable attorneys' fees, against any party.§ 7707. Effect on other laws(a) Federal law(1) Nothing in this chapter shall be construed to impair the enforcement of section223 or 231 of Title 47, chapter 71 (relating to obscenity) or 110 (relating to sexualexploitation of children) of Title 18, or any other Federal criminal statute.(2) Nothing in this chapter shall be construed to affect in any way theCommission's authority to bring enforcement actions under FTC Act formaterially false or deceptive representations or unfair practices in commercialelectronic mail messages.(b) State law(1) In generalThis chapter supersedes any statute, regulation, or rule of a State or politicalsubdivision of a State that expressly regulates the use of electronic mail to sendcommercial messages, except to the extent that any such statute, regulation, orrule prohibits falsity or deception in any portion of a commercial electronic mailmessage or information attached thereto.(2) State law not specific to electronic mailThis chapter shall not be construed to preempt the applicability of—
(A) State laws that are not specific to electronic mail, including Statetrespass, contract, or tort law; or(B) other State laws to the extent that those laws relate to acts of fraud orcomputer crime.(c) No effect on policies of providers of Internet access serviceNothing in this chapter shall be construed to have any effect on the lawfulness orunlawfulness, under any other provision of law, of the adoption, implementation, orenforcement by a provider of Internet access service of a policy of declining to transmit,route, relay, handle, or store certain types of electronic mail messages.§ 7708. Do-Not-E-Mail registry(a) In generalNot later than 6 months after December 16, 2003, the Commission shall transmit to theSenate Committee on Commerce, Science, and Transportation and the House ofRepresentatives Committee on Energy and Commerce a report that—(1) sets forth a plan and timetable for establishing a nationwide marketing Do-Not-E-Mail registry;(2) includes an explanation of any practical, technical, security, privacy,enforceability, or other concerns that the Commission has regarding such aregistry; and(3) includes an explanation of how the registry would be applied with respect tochildren with e-mail accounts.(b) Authorization to implementThe Commission may establish and implement the plan, but not earlier than 9 monthsafter December 16, 2003.§ 7709. Study of effects of commercial electronic mail(a) In generalNot later than 24 months after December 16, 2003, the Commission, in consultation withthe Department of Justice and other appropriate agencies, shall submit a report to the
Congress that provides a detailed analysis of the effectiveness and enforcement of theprovisions of this chapter and the need (if any) for the Congress to modify suchprovisions.(b) Required analysisThe Commission shall include in the report required by subsection (a) of this section--(1) an analysis of the extent to which technological and marketplacedevelopments, including changes in the nature of the devices through whichconsumers access their electronic mail messages, may affect the practicality andeffectiveness of the provisions of this chapter;(2) analysis and recommendations concerning how to address commercialelectronic mail that originates in or is transmitted through or to facilities orcomputers in other nations, including initiatives or policy positions that theFederal Government could pursue through international negotiations, fora,organizations, or institutions; and(3) analysis and recommendations concerning options for protecting consumers,including children, from the receipt and viewing of commercial electronic mailthat is obscene or pornographic.§ 7710. Improving enforcement by providing rewards for information aboutviolations; labelingThe Commission shall transmit to the Senate Committee on Commerce, Science, andTransportation and the House of Representatives Committee on Energy and Commerce—(1) a report, within 9 months after December 16, 2003, that sets forth a system forrewarding those who supply information about violations of this chapter,including—(A) procedures for the Commission to grant a reward of not less than 20percent of the total civil penalty collected for a violation of this chapter tothe first person that—(i) identifies the person in violation of this chapter; and(ii) supplies information that leads to the successful collection of acivil penalty by the Commission; and(B) procedures to minimize the burden of submitting a complaint to theCommission concerning violations of this chapter, including procedures toallow the electronic submission of complaints to the Commission; and
(2) a report, within 18 months after December 16, 2003, that sets forth a plan forrequiring commercial electronic mail to be identifiable from its subject line, bymeans of compliance with Internet Engineering Task Force Standards, the use ofthe characters "ADV" in the subject line, or other comparable identifier, or anexplanation of any concerns the Commission has that cause the Commission torecommend against the plan.§ 7711. Regulations(a) In generalThe Commission may issue regulations to implement the provisions of this Act (notincluding the amendments made by sections 4 and 12). Any such regulations shall beissued in accordance with section 553 of Title 5.(b) LimitationSubsection (a) of this section may not be construed to authorize the Commission toestablish a requirement pursuant to section 7704(a)(5)(A) of this title to include anyspecific words, characters, marks, or labels in a commercial electronic mail message, orto include the identification required by section 7704(a)(5)(A) of this title in anyparticular part of such a mail message (such as the subject line or body).§ 7712. Application to wireless(a) Effect on other lawNothing in this chapter shall be interpreted to preclude or override the applicability ofsection 227 of Title 47 or the rules prescribed under section 6102 of this title.(b) FCC rulemakingThe Federal Communications Commission, in consultation with the Federal TradeCommission, shall promulgate rules within 270 days to protect consumers from unwantedmobile service commercial messages. The Federal Communications Commission, inpromulgating the rules, shall, to the extent consistent with subsection (c) of this section—(1) provide subscribers to commercial mobile services the ability to avoidreceiving mobile service commercial messages unless the subscriber has providedexpress prior authorization to the sender, except as provided in paragraph (3);(2) allow recipients of mobile service commercial messages to indicateelectronically a desire not to receive future mobile service commercial messagesfrom the sender;
(3) take into consideration, in determining whether to subject providers ofcommercial mobile services to paragraph (1), the relationship that exists betweenproviders of such services and their subscribers, but if the Commission determinesthat such providers should not be subject to paragraph (1), the rules shall requiresuch providers, in addition to complying with the other provisions of this chapter,to allow subscribers to indicate a desire not to receive future mobile servicecommercial messages from the provider--(A) at the time of subscribing to such service; and(B) in any billing mechanism; and(4) determine how a sender of mobile service commercial messages may complywith the provisions of this chapter, considering the unique technical aspects,including the functional and character limitations, of devices that receive suchmessages.(c) Other factors consideredThe Federal Communications Commission shall consider the ability of a sender of acommercial electronic mail message to reasonably determine that the message is a mobileservice commercial message.(d) Mobile service commercial message definedIn this section, the term "mobile service commercial message" means a commercialelectronic mail message that is transmitted directly to a wireless device that is utilized bya subscriber of commercial mobile service (as such term is defined in section 332(d) ofTitle 47) in connection with such service.§ 7713. SeparabilityIf any provision of this chapter or the application thereof to any person or circumstance isheld invalid, the remainder of this chapter and the application of such provision to otherpersons or circumstances shall not be affected.

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