15 U.S.C. § 7703 — Prohibition against predatory and abu-

Page 2381 TITLE 15—COMMERCE AND TRADE § 7704 § 7703. Prohibition against predatory and abu- sive commercial e-mail (a) Omitted (b) United States Sentencing Commission (1) Directive Pursuant to its authority under section 994(p) of title 28 and in accordance with this section, the United States Sentencing Com- mission shall review and, as appropriate, amend the sentencing guidelines and policy statements to provide appropriate penalties for violations of section 1037 of title 18, as added by this section, and other offenses that may be facilitated by the sending of large quantities of unsolicited electronic mail. (2) Requirements In carrying out this subsection, the Sen- tencing Commission shall consider providing sentencing enhancements for— (A) those convicted under section 1037 of title 18 who— (i) obtained electronic mail addresses through improper means, including— (I) harvesting electronic mail address- es of the users of a website, proprietary service, or other online public forum op- erated by another person, without the authorization of such person; and (II) randomly generating electronic mail addresses by computer; or (ii) knew that the commercial electronic mail messages involved in the offense con- tained or advertised an Internet domain for which the registrant of the domain had provided false registration information; and (B) those convicted of other offenses, in- cluding offenses involving fraud, identity theft, obscenity, child pornography, and the sexual exploitation of children, if such of- fenses involved the sending of large quan- tities of electronic mail. (c) Sense of Congress It is the sense of Congress that— (1) Spam has become the method of choice for those who distribute pornography, per- petrate fraudulent schemes, and introduce vi- ruses, worms, and Trojan horses into personal and business computer systems; and (2) the Department of Justice should use all existing law enforcement tools to investigate and prosecute those who send bulk commer- cial e-mail to facilitate the commission of Federal crimes, including the tools contained in chapters 47 and 63 of title 18 (relating to fraud and false statements); chapter 71 of title 18 (relating to obscenity); chapter 110 of title 18 (relating to the sexual exploitation of chil- dren); and chapter 95 of title 18 (relating to racketeering), as appropriate. (Pub. L. 108–187, § 4, Dec. 16, 2003, 117 Stat. 2703.) Editorial Notes CODIFICATION Section is comprised of section 4 of Pub. L. 108–187. Subsec. (a) of section 4 of Pub. L. 108–187 enacted sec- tion 1037 of Title 18, Crimes and Criminal Procedure, and amended analysis for chapter 47 of Title 18. The provisions of subsec. (b) of section 4 of Pub. L. 108–187 are also listed in a table relating to sentencing guide- lines set out as a note under section 994 of Title 28, Ju- diciary and Judicial Procedure. 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. § 7704. Other protections for users of commercial electronic mail (a) Requirements for transmission of messages (1) Prohibition of false or misleading trans- mission information It is unlawful for any person to initiate the transmission, to a protected computer, of a commercial electronic mail message, or a transactional or relationship message, that contains, or is accompanied by, header infor- mation that is materially false or materially misleading. For purposes of this paragraph— (A) header information that is technically accurate but includes an originating elec- tronic mail address, domain name, or Inter- net Protocol address the access to which for purposes of initiating the message was ob- tained by means of false or fraudulent pre- tenses or representations shall be considered materially misleading; (B) a ‘‘from’’ line (the line identifying or purporting to identify a person initiating the message) that accurately identifies any person who initiated the message shall not be considered materially false or materially misleading; and (C) header information shall be considered materially misleading if it fails to identify accurately a protected computer used to ini- tiate the message because the person initi- ating the message knowingly uses another protected computer to relay or retransmit the message for purposes of disguising its or- igin. (2) Prohibition of deceptive subject headings It is unlawful for any person to initiate the transmission to a protected computer of a commercial electronic mail message if such person has actual knowledge, or knowledge fairly implied on the basis of objective cir- cumstances, that a subject heading of the mes- sage would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message (consistent with the criteria used in enforcement of sec- tion 45 of this title). (3) Inclusion of return address or comparable mechanism in commercial electronic mail (A) In general It is unlawful for any person to initiate the transmission to a protected computer of a commercial electronic mail message that does not contain a functioning return elec- tronic mail address or other Internet-based mechanism, clearly and conspicuously dis- played, that—