Order Code RS20037
Updated November 6, 2001
CRS Report for Congress
Received through the CRS Web
“Junk E-mail”: An Overview of Issues and
Legislation Concerning Unsolicited
Commercial Electronic Mail (“Spam”)
Marcia S. Smith
Specialist in Aerospace and Telecommunications Policy
Resources, Science, and Industry Division
Summary
Unsolicited commercial e-mail (UCE), also called “spam” or “junk e-mail,”
aggravates many computer users. Not only can it be a nuisance, but its cost may be
passed on to consumers through higher charges from Internet service providers who
must upgrade their systems to handle the traffic. Proponents of UCE insist it is a
legitimate marketing technique and protected by the First Amendment. Legislation to
place limits on UCE was considered by the last two Congresses, but no bill cleared
Congress. Several bills have been introduced in the 107th Congress. One, H.R. 718, has
been reported from the House Energy and Commerce Committee and the House
Judiciary Committee (H. Rept. 107-41, Parts 1 and 2). The two versions are quite
different. This report will be updated.
Overview
One aspect of increased use of the Internet for electronic mail (e-mail) has been the
advent of unsolicited advertising, also called “unsolicited commercial e-mail (UCE),”
“unsolicited bulk e-mail,” “junk e-mail, ”or “spam.”1 Issues involved in the debate are
reviewed in Report to the Federal Trade Commission of the Ad-Hoc Working Group on
Unsolicited Commercial Email [http://www.cdt.org/spam].
In 1991, Congress passed the Telephone Consumer Protection Act (P.L. 102-243)
that prohibits, inter alia, unsolicited advertising via facsimile machines, or “junk fax” (see
1 The origin of the term spam for unsolicited commercial e-mail was recounted in Computerworld,
April 5, 1999, p. 70: “It all started in early Internet chat rooms and interactive fantasy games
where someone repeating the same sentence or comment was said to be making a ‘spam.’ The term
referred to a Monty Python’s Flying Circus scene in which actors keep saying ‘Spam, Spam, Spam
and Spam’ when reading options from a menu.”
Congressional Research Service ˜ The Library of Congress

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CRS Report RL30763, Telemarketing: Dealing with Unwanted Telephone Calls). Many
think there should be an analogous law for computers, or some method for letting a
consumer know before opening an e-mail message whether or not it is UCE and how to
direct the sender to cease transmission of such messages. At a November 3, 1999 hearing
of the House Commerce telecommunications subcommittee, a representative of SBC
Internet Services stated that 35% of all the e-mail transmitted over SBC’s Internet systems
in its Pacific Bell and Southwestern Bell regions is UCE.
Opponents of junk e-mail argue that not only is junk e-mail annoying and an invasion
of privacy,2 but that its cost is borne by consumers, not marketers. Consumers reportedly
are charged higher fees by Internet service providers that must invest resources to upgrade
equipment to manage the high volume of e-mail, deal with customer complaints, and
mount legal challenges to junk e-mailers. Consumers also may incur costs for the time
spent reading and/or deleting such e-mail. Some want to prevent bulk e-mailers from
sending messages to anyone with whom they do not have an established business
relationship, treating junk e-mail the same way as junk fax. The Coalition Against
Unsolicited Commercial Email (CAUCE) [http://www.cauce.org] is one group opposing
spam. Its founder, Ray Everett-Church, is cited in the January 31, 2001 edition of
Newsday as saying that some Internet Service Providers (ISPs) estimate that spam costs
consumers about $2-3 per month.
Proponents of UCE argue that it is a valid method of advertising. The Direct
Marketing Association (DMA), for example, argues that instead of banning unsolicited
commercial e-mail, individuals should be given the opportunity to notify the sender of the
message that they want to be removed from its mailing list — or “opt-out.” Hoping to
demonstrate that self regulation can work, in January 2000, the DMA launched a new
service, the E-mail Preference Service, where consumers who wish to opt out of receiving
UCE can register themselves at a DMA Web site [http://www.e-mps.org]. DMA
members sending UCE must check their lists of intended recipients and delete those who
have opted out via that Web site. Critics argue that most spam does not come from DMA
members, so the plan is insufficient.
To date, the issue of restraining junk e-mail has been fought primarily over the
Internet or in the courts. Some Internet service providers (ISPs) will return junk e-mail to
its origin, and groups opposed to junk e-mail will send blasts of e-mail to a mass e-mail
company, disrupting the company’s computer systems. Filtering software also is available
to screen out e-mail based on keywords or return addresses. Knowing this, mass e-mailers
may avoid certain keywords or continually change addresses to foil the software, however.
In the courts, ISPs with unhappy customers and businesses that believe their reputations
have been tarnished by misrepresentations in junk e-mail have brought suit against mass
e-mailers.
Consumers may file a complaint about spam with the Federal Trade Commission
(FTC) by visiting the FTC Web site [http://www.ftc.gov] and scrolling down to
“complaint form” at the bottom of the page. The offending spam also may be forwarded
2 For more on Internet privacy issues, see CRS Report RL30784, Internet Privacy: An Analysis
of Technology and Policy Issues, and CRS Report RS20035, Internet Privacy–Protecting
Personal Information: Overview and Legislation.

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to the FTC (UCE@ftc.gov) to assist the FTC in monitoring UCE trends and
developments. Three consumer publications are available on the FTC Web site
[http://www.ftc.gov/opa/1999/9911/spam.htm]. Separately, CNET.com, a non-
government site, has tips for consumers on how to protect themselves from spam at
[http://home.cnet.com/internet/0-3793-8-5181225-1.html].
Some UCE either contains indecent material or links to Web sites where indecent
material is available. Thus, controls over junk e-mail have also arisen in the context of
protecting children from unsuitable material. The House Judiciary Committee version of
H.R. 718 (see below) and H.R. 2472 address this issue. Other spam involves fraud, some
of which also may involve links to adult entertainment services.
State Action
Although the U.S. Congress has not passed a law addressing junk e-mail, several
states have passed or considered such legislation. According to the National Conference
of State Legislatures, as of March 2000, 15 states (California, Connecticut, Delaware,
Illinois, Iowa, Louisiana, Nevada, North Carolina, Oklahoma, Rhode Island, Tennessee,
Vermont, Virginia, Washington, and West Virginia) have enacted such laws and 16
introduced spam legislation in their 2000 sessions.3
Congressional Action
The House and Senate each passed legislation during the 105th Congress addressing
UCE, but no bill ultimately cleared Congress. The Senate-passed version of S. 1618
(concerning “slamming”) would have required senders of UCE to clearly identify in the
subject line of the message that it was an advertisement, required Internet service providers
to make software available to their subscribers to block such e-mail, and prohibited
sending e-mail to anyone who had asked not to receive such mail (“opt-out”) The House-
passed version of the bill (H.R. 3888) included a sense of Congress statement that industry
should self-regulate. Conference agreement was not reached. Several UCE bills were
introduced in the 106th Congress. One, H.R. 3113, passed the House.
In the 107th Congress, several spam bills have been introduced: H.R. 95 (Green),
H.R. 718 (Wilson), H.R. 1017 (Goodlatte), H.R. 3146 (Smith) and S. 630 (Burns). H.R.
2472 (Lofgren) is not a spam bill per se, but would require marks or notices on e-mail
forwarded to minors that contains sexually oriented advertising. Since both the House
Energy and Commerce Committee and the House Judiciary Committees have acted on
H.R. 718, and the brevity of this report precludes lengthy narrative, it is the only House
bill summarized below. Note that some of the bills refer to “providers of Internet access
service” which is abbreviated “ISP,” for Internet Service Provider, in the text below.
H.R. 718 (Wilson) was referred to the House Energy and Commerce Committee
and the House Judiciary Committee. As introduced, it was the same as H.R. 3113 from the
106th Congress, but was altered by the House Energy and Commerce Committee (H.Rept.
3 National Conference of State Legislatures (Denver, CO office). States Enact Anti-Spam
Legislation. March 1, 2000.

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CRS-4
107-41, Part 1) and the House Judiciary Committee (H. Rept. 107-41, Part 2). The two
committee versions are substantially different.
As reported from the House Energy and Commerce Committee, H.R. 718 would
be entitled the Unsolicited Commercial Electronic Mail Act and would —
•
define unsolicited commercial electronic mail (UCE), inter alia, as commercial e-
mail sent to a recipient without the recipient’s prior consent and with whom the
initiator does not have a pre-existing business relationship.
•
amend 18 U.S.C. 10304 to prohibit the intentional initiation of transmission of any
UCE to a protected computer in the United States with knowledge that certain
identifying information is false.
•
make it unlawful to initiate the transmission of a commercial e-mail message to any
person within the United States unless such message contains a valid return e-mail
address, conspicuously displayed, to which a recipient may opt-out.
•
make it unlawful to initiate transmission of UCE to a recipient within the United
States—
÷ if the recipient has opted-out and a reasonable period of time has expired for
removal from distribution lists. The bill also requires that the recipient’s e-mail
address be deleted or suppressed from all mailing lists owned by the initiator
(and its agents or assigns), and makes it unlawful for the initiator (and such
agents or assigns) to sell, lease, exchange, license, or engage in any other
transaction involving mailing lists bearing the recipient’s e-mail address.
÷ unless it provides in a manner that is clear and conspicuous: identification that
the message is UCE, notice of the opportunity to opt-out, and the physical
mailing address of the initiator.
÷ that uses an ISP’s equipment if the ISP has a policy that meets certain
requirements set forth in the bill, after a reasonable period of time following a
request by a recipient to opt-out. The Act does not prevent or limit an ISP from
adopting a policy regarding commercial or other e-mail and from enforcing such
policy through technical means, through contract, or pursuant to any remedy
available under other laws. ISPs are not liable for actions taken in good faith
to block UCE.
•
make it unlawful for an ISP that has a policy requiring compensation specifically for
the transmission of UCE into its system to fail to provide opt-out to a subscriber
unless the subscriber has agreed to receive UCE in exchange for discounted or free
Internet access services. It shall be an affirmative defense if the violation was not
intentional.
•
give the FTC enforcement authority through the FTC Act.
•
allow UCE recipients and ISPs to bring action to enjoin violations and/or recover
actual monetary loss, or $500 per violation up to $50,000, whichever is greater. A
court may increase the amount up to three times for willful, repeated violators. Class
actions are prohibited. Courts may protect trade secrets.
4 18 U.S.C. 1030 is the federal computer fraud and abuse statute; it defines a protected computer
as a computer exclusively for the use of a financial institution or the U.S. government, used by or
for a financial institution or the U.S. government, or used in interstate or foreign commerce or
communication.

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•
allow state attorneys general to bring civil action on behalf of the residents of that
state in an appropriate state court or U.S. district court to enjoin violations, enforce
compliance, or recover actual monetary loss or receive $500 in damages fo reach
violation, and the amount may be tripled for wilful or repeated violations. The state
attorney general shall notify the FTC before it files such an action, or at the same time
if advance notification is not possible. The FTC may intervene. State and local
governments may not impose civil liabilities inconsistent with the Act, but the Act
does not preempt civil actions under State trespass or contract law or any laws
relating to computer fraud or abuse arising from unauthorized transmission of UCE.
As reported from the House Judiciary Committee, H.R. 718 would be entitled the
Anti-Spamming Act, and would amend 18 U.S.C. by adding a new chapter 30, Electronic
Mail, that would—
•
create penalties for whoever intentionally initiates in one or more transactions the
transmission of 10 or more UCE messages to one or more protected computers in
the United States knowing that such message contains or is accompanied by header
information that is materially false or misleading as to the identity of the person
initiating the transmission, and
÷ commercial e-mail is defined as e-mail the primary purpose of which is to
advertise or promote, for a commercial purpose, a product or service,
including content on an Internet Web site;
÷ ISPs are permitted to bring action to recover actual or statutory damages
of $5 per violation not to exceed a total of $1 million, except that during
any one-year period for which the defendant has transmitted in excess of
20 million UCE messages, no liability limit exists; and
÷ courts may award reasonable litigation expenses incurred by a prevailing
party, including reasonable attorney’s fees.
•
require the Attorney General to prescribe marks or notices to be included in e-mail
that contains a sexually oriented advertisement, and
÷ whoever, in any e-mail carried on an instrumentality in or affecting
interstate or foreign commerce, knowingly includes a sexually oriented
advertisement but does not include those marks or notices shall be fined or
imprisoned not more than one year or both;
÷ “sexually oriented advertisement” means any advertisement that depicts,
in actual or simulated form, or explicitly describes, in a predominantly
sexual context, human genitalia, any act of natural or unnatural sexual
intercourse, any act of sadism or masochism, or any other erotic subject
directly related to the foregoing, unless it constitutes only a small and
insignificant part of the whole, the remainder of which is not primarily
devoted to sexual matters.
•
require a report from the Attorney General no later than 18 months after
enactment on the effectiveness and enforcement of the Act.
It should be noted that the provision regarding e-mail with sexually oriented advertising
is not limited to UCE; it would apply to any e-mail. (H.R. 2472 also would require marks
or notices on any e-mail containing sexually oriented advertisements, but only if the e-mail
is “forwarded” to minors.)

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In the Senate, one bill has been introduced. S. 630 (Burns), the CAN SPAM Act,
was referred to the Senate Commerce Committee. It would amend Chapter 63 of Title 18
U.S.C. (concerning mail fraud) to set penalties for intentionally initiating the transmission
of UCE to a protected computer in the United States with knowledge that the message
contains or is accompanied by header information that is materially or intentionally false
or misleading. It would be unlawful to initiate the transmission to a protected computer
of a commercial e-mail message containing or accompanied by header information that is
false, misleading, or not legitimately obtained; that has a subject heading that the person
knows is likely to mislead the recipient about the contents of the message; and that does
not contain a functioning return e-mail address to which the recipient can opt-out. If a
recipient opts-out, it shall be unlawful for the sender to send additional UCE more than
10 days after receipt of the opt-out request. UCE messages sent to a protected computer
must provide in a clear and conspicuous manner: identification that the message is an
advertisement or solicitation; notice of the opportunity to opt-out; and a valid physical
postal address for the sender. Nothing in the Act prevents an ISP from having a policy of
declining to transmit, route, relay, handle, or store certain types of e-mail.
In general, the Act would be enforced by the FTC under the FTC Act, except for
certain industries (e.g, national banks and federal branches and federal agencies of foreign
banks would be enforced by the Office of the Comptroller of the Currency under the
Federal Deposit Insurance Act). States may bring civil actions on behalf on residents of
that state to enjoin practices prohibited by the Act or to obtain damages equal to the
greater of actual monetary loss or statutory damages (the smaller of up to $10 per
prohibited message or $500,000, with triple those amounts allowed for violations
committed wilfully and knowingly). State attorneys general must notify the FTC before
filing an action, or at the time of filing if advance notice is not possible, and the FTC may
intervene. If the FTC or another federal agency has instituted a civil or administrative
action for violation of the Act, no state attorney general may bring an action against that
defendant while the action is pending. An ISP adversely affected by a violation of the
Act may bring civil action in U.S. district court to enjoin further violations, recover
damages equal to the greater of actual monetary loss or statutory damages (the smaller of
up to $10 per prohibited message or $500,000, with triple those amounts allowed for
violations committed wilfully and knowingly). A showing that a recipient has submitted
a complaint to an e-mail address maintained and publicized by the ISP for the purpose of
receiving UCE complaints shall create a rebuttable presumption that the message was
unsolicited within the meaning of this Act. A person shall not be liable for damages if
such person has established and implemented, with due care, reasonable practices and
procedures to effectively prevent violations of this Act and any violation occurred despite
good faith efforts to maintain compliance with such practices and procedures. State and
local governments are not permitted to impose civil liabilities inconsistent with the Act, but
the Act does not preempt civil remedies under state trespass or contract law or other
provisions of federal, state, or local criminal law, or civil remedies available under such law
that relate to acts of computer fraud perpetrated by UCE, provided that the mere sending
of UCE in a manner that complies with this Act shall not constitute an act of computer
fraud.

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