15 U.S.C. § 7704 — Other protections for users of commercial

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— Page 2382 TITLE 15—COMMERCE AND TRADE § 7704 (i) a recipient may use to submit, in a manner specified in the message, a reply electronic mail message or other form of Internet-based communication requesting not to receive future commercial elec- tronic mail messages from that sender at the electronic mail address where the mes- sage was received; and (ii) remains capable of receiving such messages or communications for no less than 30 days after the transmission of the original message. (B) More detailed options possible The person initiating a commercial elec- tronic mail message may comply with sub- paragraph (A)(i) by providing the recipient a list or menu from which the recipient may choose the specific types of commercial elec- tronic mail messages the recipient wants to receive or does not want to receive from the sender, if the list or menu includes an option under which the recipient may choose not to receive any commercial electronic mail mes- sages from the sender. (C) Temporary inability to receive messages or process requests A return electronic mail address or other mechanism does not fail to satisfy the re- quirements of subparagraph (A) if it is unex- pectedly and temporarily unable to receive messages or process requests due to a tech- nical problem beyond the control of the sender if the problem is corrected within a reasonable time period. (4) Prohibition of transmission of commercial electronic mail after objection (A) In general If a recipient makes a request using a mechanism provided pursuant to paragraph (3) not to receive some or any commercial electronic mail messages from such sender, then it is unlawful— (i) for the sender to initiate the trans- mission to the recipient, more than 10 business days after the receipt of such re- quest, of a commercial electronic mail message that falls within the scope of the request; (ii) for any person acting on behalf of the sender to initiate the transmission to the recipient, more than 10 business days after the receipt of such request, of a commer- cial electronic mail message with actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that such message falls within the scope of the request; (iii) for any person acting on behalf of the sender to assist in initiating the trans- mission to the recipient, through the pro- vision or selection of addresses to which the message will be sent, of a commercial electronic mail message with actual knowledge, or knowledge 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 the recipient has made such a request, to sell, lease, exchange, or otherwise transfer or release the elec- tronic mail address of the recipient (in- cluding through any transaction or other transfer involving mailing lists bearing the electronic mail address of the recipi- ent) for any purpose other than compli- ance with this chapter or other provision of law. (B) Subsequent affirmative consent A prohibition in subparagraph (A) does not apply if there is affirmative consent by the recipient subsequent to the request under subparagraph (A). (5) Inclusion of identifier, opt-out, and physical address in commercial electronic mail (A) It is unlawful for any person to initiate the transmission of any commercial electronic mail message to a protected computer unless the message provides— (i) clear and conspicuous identification that the message is an advertisement or so- licitation; (ii) clear and conspicuous notice of the op- portunity under paragraph (3) to decline to receive further commercial electronic mail 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 a commercial electronic mail message if the recipient has given prior affirmative consent to receipt of the message. (6) Materially For purposes of paragraph (1), the term ‘‘ma- terially’’, when used with respect to false or misleading header information, includes the alteration or concealment of header informa- tion in a manner that would impair the ability of an Internet access service processing the message on behalf of a recipient, a person al- leging a violation of this section, or a law en- forcement agency to identify, locate, or re- spond to a person who initiated the electronic mail message or to investigate the alleged vio- lation, or the ability of a recipient of the mes- sage to respond to a person who initiated the electronic message. (b) Aggravated violations relating to commercial electronic mail (1) Address harvesting and dictionary attacks (A) In general It is unlawful for any person to initiate the transmission, to a protected computer, of a commercial electronic mail message that is unlawful under subsection (a), or to assist in the origination of such message through the provision or selection of ad- dresses to which the message will be trans- mitted, if such person had actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that— (i) the electronic mail address of the re- cipient was obtained using an automated means from an Internet website or propri- etary online service operated by another person, and such website or online service 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-