15 U.S.C. § 7705 — Businesses knowingly promoted by elec-

Page 2383 TITLE 15—COMMERCE AND TRADE § 7705 included, at the time the address was ob- tained, a notice stating that the operator of such website or online service will not give, sell, or otherwise transfer addresses maintained by such website or online serv- ice to any other party for the purposes of initiating, or enabling others to initiate, electronic mail messages; or (ii) the electronic mail address of the re- cipient was obtained using an automated means that generates possible electronic mail addresses by combining names, let- ters, or numbers into numerous permuta- tions. (B) Disclaimer Nothing in this paragraph creates an own- ership or proprietary interest in such elec- tronic mail addresses. (2) Automated creation of multiple electronic mail accounts It is unlawful for any person to use scripts or other automated means to register for mul- tiple electronic mail accounts or online user accounts from which to transmit to a pro- tected computer, or enable another person to transmit to a protected computer, a commer- cial electronic mail message that is unlawful under subsection (a). (3) Relay or retransmission through unauthor- ized access It is unlawful for any person knowingly to relay or retransmit a commercial electronic mail message that is unlawful under sub- section (a) from a protected computer or com- puter network that such person has accessed without authorization. (c) Supplementary rulemaking authority The Commission shall by regulation, pursuant to section 7711 of this title— (1) modify the 10-business-day period under subsection (a)(4)(A) or subsection (a)(4)(B), or both, if the Commission determines that a dif- ferent period would be more reasonable after taking into account— (A) the purposes of subsection (a); (B) the interests of recipients of commer- cial electronic mail; and (C) the burdens imposed on senders of law- ful commercial electronic mail; and (2) specify additional activities or practices to which subsection (b) applies if the Commis- sion determines that those activities or prac- tices are contributing substantially to the proliferation of commercial electronic mail messages that are unlawful under subsection (a). (d) Requirement to place warning labels on com- mercial electronic mail containing sexually oriented material (1) In general No person may initiate in or affecting inter- state commerce the transmission, to a pro- tected computer, of any commercial electronic mail message that includes sexually oriented material and— (A) fail to include in subject heading for the electronic mail message the marks or notices prescribed by the Commission under this subsection; or (B) fail to provide that the matter in the message that is initially viewable to the re- cipient, when the message is opened by any recipient and absent any further actions by the recipient, includes only— (i) to the extent required or authorized pursuant to paragraph (2), any such marks or notices; (ii) the information required to be in- cluded in the message pursuant to sub- section (a)(5); and (iii) instructions on how to access, or a mechanism to access, the sexually ori- ented material. (2) Prior affirmative consent Paragraph (1) does not apply to the trans- mission of an electronic mail message if the recipient has given prior affirmative consent to receipt of the message. (3) Prescription of marks and notices Not later than 120 days after December 16, 2003, the Commission in consultation with the Attorney General shall prescribe clearly iden- tifiable marks or notices to be included in or associated with commercial electronic mail that contains sexually oriented material, in order to inform the recipient of that fact and to facilitate filtering of such electronic mail. The Commission shall publish in the Federal Register and provide notice to the public of the marks or notices prescribed under this paragraph. (4) Definition In this subsection, the term ‘‘sexually ori- ented material’’ means any material that de- picts sexually explicit conduct (as that term is defined in section 2256 of title 18), unless the depiction constitutes a small and insignificant part of the whole, the remainder of which is not primarily devoted to sexual matters. (5) Penalty Whoever knowingly violates paragraph (1) shall be fined under title 18, or imprisoned not more than 5 years, or both. (Pub. L. 108–187, § 5, Dec. 16, 2003, 117 Stat. 2706.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (a)(4)(A)(iv), was in the original ‘‘this Act’’, meaning Pub. L. 108–187, Dec. 16, 2003, 117 Stat. 2699, which is classified prin- cipally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 7701 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Jan. 1, 2004, see section 16 of Pub. L. 108–187, set out as a note under section 7701 of this title. § 7705. Businesses knowingly promoted by elec- tronic mail with false or misleading trans- mission information (a) In general It is unlawful for a person to promote, or allow the promotion of, that person’s trade or busi- Page 2384 TITLE 15—COMMERCE AND TRADE § 7706 ness, or goods, products, property, or services sold, offered for sale, leased or offered for lease, or otherwise made available through that trade or business, in a commercial electronic mail message the transmission of which is in viola- tion of section 7704(a)(1) of this title if that per- son— (1) knows, or should have known in the ordi- nary course of that person’s trade or business, that the goods, products, property, or services sold, offered for sale, leased or offered for lease, or otherwise made available through that trade or business were being promoted in such a message; (2) received or expected to receive an eco- nomic benefit from such promotion; and (3) took no reasonable action— (A) to prevent the transmission; or (B) to detect the transmission and report it to the Commission. (b) Limited enforcement against third parties (1) In general Except as provided in paragraph (2), a person (hereinafter referred to as the ‘‘third party’’) that provides goods, products, property, or services to another person that violates sub- section (a) shall not be held liable for such vio- lation. (2) Exception Liability for a violation of subsection (a) shall be imputed to a third party that provides goods, products, property, or services to an- other person that violates subsection (a) if that third party— (A) owns, or has a greater than 50 percent ownership or economic interest in, the trade or business of the person that violated sub- section (a); or (B)(i) has actual knowledge that goods, products, property, or services are promoted in a commercial electronic mail message the transmission of which is in violation of sec- tion 7704(a)(1) of this title; and (ii) receives, or expects to receive, an eco- nomic benefit from such promotion. (c) Exclusive enforcement by FTC Subsections (f) and (g) of section 7706 of this title do not apply to violations of this section. (d) Savings provision Except as provided in section 7706(f)(8) of this title, nothing in this section may be construed to limit or prevent any action that may be taken under this chapter with respect to any violation of any other section of this chapter. (Pub. L. 108–187, § 6, Dec. 16, 2003, 117 Stat. 2710.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (d), was in the original ‘‘this Act’’, meaning Pub. L. 108–187, Dec. 16, 2003, 117 Stat. 2699, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 7701 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Jan. 1, 2004, see section 16 of Pub. L. 108–187, set out as a note under section 7701 of this title. § 7706. Enforcement generally (a) Violation is unfair or deceptive act or prac- tice Except as provided in subsection (b), this chapter shall be enforced by the Commission as if the violation of this chapter were an unfair or deceptive act or practice proscribed under sec- tion 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)). (b) Enforcement by certain other agencies Compliance with this chapter shall be en- forced— (1) under section 8 of the Federal Deposit In- surance Act (12 U.S.C. 1818), in the case of— (A) national banks, and Federal branches and Federal agencies of foreign banks, by the Office of the Comptroller of the Cur- rency; (B) member banks of the Federal Reserve System (other than national banks), branches and agencies of foreign banks (other than Federal branches, Federal agen- cies, and insured State branches of foreign banks), commercial lending companies owned or controlled by foreign banks, orga- nizations operating under section 25 or 25A of the Federal Reserve Act (12 U.S.C. 601 and 611), and bank holding companies, by the Board; (C) banks insured by the Federal Deposit Insurance Corporation (other than members of the Federal Reserve System) and insured State branches of foreign banks, by the Board of Directors of the Federal Deposit In- surance Corporation; and (D) savings associations the deposits of which are insured by the Federal Deposit In- surance Corporation, by the Director of the Office of Thrift Supervision; (2) under the Federal Credit Union Act (12 U.S.C. 1751 et seq.) by the Board of the Na- tional Credit Union Administration with re- spect to any Federally insured credit union; (3) under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) by the Securities and Ex- change Commission with respect to any broker or dealer; (4) under the Investment Company Act of 1940 (15 U.S.C. 80a–1 et seq.) by the Securities and Exchange Commission with respect to in- vestment companies; (5) under the Investment Advisers Act of 1940 (15 U.S.C. 80b–1 et seq.) by the Securities and Exchange Commission with respect to invest- ment advisers registered under that Act; (6) under State insurance law in the case of any person engaged in providing insurance, by the applicable State insurance authority of the State in which the person is domiciled, subject to section 104 of the Gramm-Bliley- Leach Act (15 U.S.C. 6701), except that in any State in which the State insurance authority elects not to exercise this power, the enforce- ment authority pursuant to this chapter shall be exercised by the Commission in accordance with subsection (a); (7) under part A of subtitle VII of title 49 by the Secretary of Transportation with respect to any air carrier or foreign air carrier subject to that part;