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Computer underground Digest Sun June 8, 1997 Volume 9 : Issue 43
ISSN 1004-042X
Editor: Jim Thomas (cudigest@sun.soci.niu.edu)
News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu)
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Field Agent Extraordinaire: David Smith
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #9.43 (Sun, June 8, 1997)
File 1--Alert: Two Anti-Spam Bills in Congress; One Good, One Bad
File 2--Text of S. 771 (Senate version of Anti-Spam bill)
File 3--Cu Digest Header Info (unchanged since 7 May, 1997)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
---------------------------------------------------------------------
Date: Thu, 22 May 1997 17:25:22 EDT
From: John R Levine <johnl@iecc.com>
Subject: File 1--Alert: Two Anti-Spam Bills in Congress; One Good, One Bad
There are two anti-spam bills in progress now. One is an "opt-out"
bill filed earlier this week by Sen. Murkowski of Alaska. The other
is an "opt-in" amendment to the existing junk fax law to be filed
shortly by Rep. Chris Smith of New Jersey.
Both bills attempt to address the problems of spam, but unfortunately
the Murkowski bill has several critical flaws that both make it
ineffective and would impose huge extra costs on ISPs. Fortunately
the Smith bill has none of these problems.
The Murkowski bill:
* Requires that advertisements be tagged "advertisement" and have valid
contact info.
* Requires that each advertiser maintain an opt-out list, with a 48 hour
window permitted before acting on an opt-out request.
* Requires that all ISPs provide filtering on incoming mail, with
substantial fines if they don't.
* Prescribes a variety of remedies, including a cumbersome proceeding before
the Federal Trade Commission for ISPs accused of harboring spammers.
The full text of the Murkowski bill is on the senator's web site at
<http://www.senate.gov/~murkowski/press/EMail052197.html>.
This could be a disaster for ISPs. It does nothing to address the
costs that spammers put on ISPs now, and adds unfunded mandates by
requiring filtering of mail that nobody wanted in the first place. It
also makes spam clearly legal, so the amount of spam will greatly
increase.
We already know the reasons opt-out doesn't work: each tiny spammer
starts with an empty opt-out list, and they have an incentive to keep
lousy records and lose opt-out requests. The simple filtering that
the bill mandates would exclude all advertising mail, so it makes it
much more difficult for existing legitimate opt-in businesses to
operate since their mail would be filtered, too.
The Smith bill, in contrast, is a short amendment to 47 USC 227, the
existing junk fax law, to make unsolicited commercial e-mail illegal,
with the same $500 civil penalty as currently applies to junk fax. It
puts no new requirements on ISPs. Rather, it makes it incumbent on
advertisers to sign up people affirmatively and to keep careful
records of opt-in requests, so the advertisers bear the bulk of the
cost. Legitimate e-mail advertisers already do these things.
What you need to do:
* Particularly if you run an ISP or other Internet-related business,
call your representative and ask him or her to support and ideally
co-sponsor the Smith bill. Tell him why the Murkowski bill would be
bad for your business.
* Senator Murkowski has asked for e-mail comments at
commercialemail@murkowski.senate.gov. Remember, his goals are
laudable, it's the implementation that has problems. Encourage him to
adopt the language of the Smith bill.
Incidentally, I hear that Cyber Promotions supports the Murkowski bill.
------------------------------
Date: Thu, 29 May 1997 16:21:19 -0500 (CDT)
From: Jim Thomas <jthomas2@SUN.SOCI.NIU.EDU>
Subject: File 2--Text of S. 771 (Senate version of Anti-Spam bill)
Please note throughout S. 771,
Commission refers to the Federal Trade Commission,
not the Federal Communications Commission
S. 771 BILL TEXT
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Unsolicited Commercial Electronic Mail
Choice Act of 1997''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) The Internet is a worldwide network of information that growing
numbers of Americans use on a regular basis for educational and
personal activities.
(2) Electronic mail messages transmitted on the Internet constitute an
increasing percentage of communications in the United States.
(3) Solicited commercial electronic mail is a useful and
cost-effective means for Americans to receive information about a
business and its products.
(4) The number of transmissions of unsolicited commercial electronic
mail advertisements has grown exponentially over the past several
years as the technology for creating and transmitting such
advertisements in bulk has made the costs of distribution of such
advertisements minimal.
(5) Individuals have available no effective means of differentiating
between unsolicited commercial electronic mail advertisements and
other Internet communications.
(6) The transmitters of unsolicited commercial electronic mail
advertisements can easily move from State to State.
(7) Individuals and businesses that receive unsolicited commercial
electronic mail advertisements often pay for the costs of such receipt
,including the costs of Internet access and long distance telephone
charges.
(8) Unsolicited commercial electronic mail can be used to advertise
legitimate services and goods but is also used for fraudulent and
deceptive purposes in violation of Federal and State law.
(9) Individuals and companies that use unsolicited commercial
electronic mail for fraudulent and deceptive purposes often use
fraudulent identification information in such electronic mail, making
it impossible for a recipient to request to be removed from the
mailing list or for law enforcement authorities to identify the
sender.
(10) The inability of recipients of unsolicited commercial electronic
mail to identify the senders of such electronic mail or to prevent its
receipt impedes the flow of commerce and communication on the Internet
and threatens the integrity of commerce on the Internet.
(11) Internet service providers are burdened by the cost of equipment
necessary to process unsolicited commercial electronic mail.
(12) To facilitate the development of commerce and communication on
the Internet, unsolicited commercial electronic mail should be readily
identifiable and filterable by individuals and Internet service
providers.
SEC. 3. REQUIREMENTS RELATING TO TRANSMISSIONS OF UNSOLICITED
COMMERCIAL ELECTRONIC MAIL.
(a) Information on Advertisement.
(1) Requirement.
Unless otherwise authorized pursuant to a provision of section 7, a
person who transmits an electronic mail message as part of the
transmission of unsolicited commercial electronic mail shall cause to
appear in each electronic mail message transmitted as part of such
transmission the information specified in paragraph (3).
(2) Placement.
* (A) Advertisement.
The information specified in subparagraph (A) of paragraph (3)
shall appear as the first word of the subject line of the
electronic mail message without any prior text or symbol.
* (B) Other information.
The information specified in subparagraph (B) of that paragraph
shall appear prominently in the body of the message.
(3) Covered information.
The following information shall appear in an electronic mail message
under paragraph (1):
* (A) The term ``advertisement''.
* (B) The name, physical address, electronic mail address, and
telephone number of the person who initiates transmission of the
message.
(b) Routing Information.
All Internet routing information contained within or accompanying an
electronic mail message described in subsection (a) shall be valid
according to the prevailing standards for Internet protocols.
(c) Effective Date.
The requirements in this section shall take effect 30 days after the
date of enactment of this Act.
SEC. 4. FEDERAL REGULATION OF UNSOLICITED COMMERCIAL ELECTRONIC MAIL.
(a) Transmissions.
(1) In general.
Upon notice from a person of the person's receipt of electronic mail
in violation of a provision of section 3 or 7, the Commission
* (A) may conduct an investigation to determine whether or not the
electronic mail was transmitted in violation of the provision; and
* (B) if the Commission determines that the electronic mail was
transmitted in violation of the provision, may
+ (i) impose upon the person initiating the transmission a
civil fine in an amount not to exceed $11,000;
+ (ii) commence in a district court of the United States a
civil action to recover a civil penalty in an amount not to
exceed $11,000 against the person initiating the
transmission; or
+ (iii) both impose a fine under clause (i) and commence an
action under clause (ii).
(2) Deadline.
The Commission may not take action under paragraph (1)(B) with
respect to a transmission of electronic mail more than 2 years
after the date of the transmission.
(b) Administration.
(1) Notice by electronic means.
The Commission shall establish an Internet web site with an
electronic mail address for the receipt of notices under
subsection (a).
(2) Information on enforcement.
The Commission shall make available through the Internet web site
established under paragraph (2) information on the actions taken
by the Commission under subsection (a)(1)(B).
(3) Assistance of Federal Communications Commission.
The Federal Communications Commission may assist the Commission in
carrying out its duties this section.
SEC. 5. ACTIONS BY STATES.
(a) In General.
Whenever an attorney general of any State has reason to believe
that the interests of the residents of that State have been or are
being threatened or adversely affected because any person is
engaging in a pattern or practice of the transmission of
electronic mail in violation of a provision of section 3 or 7, the
State, as parens patriae, may bring a civil action on behalf of
its residents to enjoin such transmission, to enforce compliance
with the provision, to obtain damages or other compensation on
behalf of its residents, or to obtain such further and other
relief as the court considers appropriate.
(b) Notice to Commission.
(1) Notice.
The State shall serve prior written notice of any civil action
under this section upon the Commission and provide the Commission
with a copy of its complaint, except that if it is not feasible
for the State to provide such prior notice, the State shall serve
written notice immediately upon instituting such action.
(2) Rights of commission.
Upon receiving a notice with respect to a civil action under
paragraph (1), the Commission shall have the right
+ (A) to intervene in the action;
+ (B) upon so intervening, to be heard in all matters arising
therein; and
+ (C) to file petitions for appeal.
(c) Actions by Commission.
Whenever a civil action has been instituted by or on behalf of the
Commission for violation of a provision of section 3 or 7, no
State may, during the pendency of such action, institute a civil
action under this section against any defendant named in the
complaint in such action for violation of any provision as alleged
in the complaint.
(d) Construction.
For purposes of bringing a civil action under subsection(a),
nothing in this section shall prevent an attorney general from
exercising the powers conferred on the attorney general by the
laws of the State concerned to conduct investigations or to
administer oaths or affirmations or to compel the attendance of
witnesses or the production of documentary or other evidence.
(e) Venue; Service of Process.
Any civil action brought under subsection (a)in a district court
of the United States may be brought in the district in which the
defendant is found, is an inhabitant, or transacts business or
wherever venue is proper under section 1391 of title 28, United
States Code. Process in such an action may be served in any
district in which the defendant is an inhabitant or in which the
defendant may be found.
(f) Actions by Other State Officials.
Nothing in this section may be construed to prohibit an authorized
State official from proceeding in State court on the basis of an
alleged violation of any civil or criminal statute of the State
concerned.
(g) Definition.
In this section, the term ``attorney general'' means the chief
legal officer of a State.
SEC. 6. INTERNET SERVICE PROVIDERS.
(a) Exemption for Certain Transmissions.
The provisions of this Act shall not apply to a transmission of
electronic mail by an interactive computer service provider unless
the provider initiates the transmission.
(b) Notice of Transmissions from Commission.
Not later than 72 hours after receipt from the Commission of
notice that its computer equipment may have been used by another
person to initiate a transmission of electronic mail in violation
of a provision of section 3 or 7, an interactive computer service
provider shall
(1) provide the Commission such information as the Commission
requires in order to determine whether or not the computer
equipment of the provider was used to initiate the transmission;
and
(2) if the Commission determines that the computer equipment of
the provider was used to initiate the transmission, take
appropriate actions to terminate the use of its computer equipment
by that person.
(c) Notice of Transmissions from Private Individuals.
(1) In general.
Subject to paragraph (2), not later than 14 days after receipt
from a private person of notice that its computer equipment may
have been used by another person to initiate a transmission of
electronic mail in violation of a provision of section 3 or 7, an
interactive computer service provider shall
+ (A) transmit the notice to the Commission together with such
information as the Commission requires in order to determine
whether or not the computer equipment of the provider was
used to initiate the transmission; and
+ (B) if the Commission determines that the computer equipment
of the provider was used to initiate the transmission, take
appropriate actions to terminate the use of its computer
equipment by that person.
(2) Minimum notice requirement.
An interactive computer service provider shall transmit a notice
under paragraph (1) with respect to a particular transmission of
electronic mail only if the provider receives notice with respect
to the transmission from more than 100 private persons.
(d) Blocking Systems.
(1) Requirement.
Each interactive computer service provider shall make available to
subscribers to such service a system permitting such subscribers,
upon the affirmative electronic request of such subscribers, to
block the receipt through such service of any electronic mail that
contains the term``advertisement'' in its subject line.
(2) Notice of availability.
Upon the applicability of this subsection to an interactive
computer service provider, the provider shall
+ (A) notify each current subscriber, if any, to the service of
the blocking system provided for under paragraph (1); and
+ (B) notify any new subscribers to the service of the blocking
system.
(3) Blocking by provider.
An interactive computer service provider may, upon its own
initiative, block the receipt through its service of any
electronic mail that contains the term ``advertisement'' in its
subject line.
(4) Applicability.
The requirements in paragraphs (1) and (2) shall apply
+ (A) beginning 1 year after the date of enactment of this Act,
in the case of an interactive computer service provider
having more than 25,000 or more subscribers; and
+ (B) beginning 2 years after that date, in the case of an
interactive computer service provider having less than 25,000
subscribers.
(e) Records.
An interactive computer service provider shall retain records of
any action taken on a notice received under this section for not
less than 2 years after the date of receipt of the notice.
(f) Construction.
Nothing in this section may be construed to require an interactive
computer service provider to transmit or otherwise deliver any
electronic mail message containing the term ``advertisement'' in
its subject line.
(g) Definition.
In this section, the term ``interactive computer service
provider'' has the meaning given that term in section 230(e)(2) of
the Communications Act of 1934 (47 U.S.C. 230(e)(2)).
SEC. 7. RECEIPT OF TRANSMISSIONS BY PRIVATE PERSONS.
(a) Termination of Transmissions.
(1) Request.
A person who receives a transmission of unsolicited commercial
electronic mail not otherwise authorized under this section may
request, by electronic mail to the same electronic mail address
from which the transmission originated, the termination of
transmissions of such mail by the person initiating the
transmission.
(2) Deadline.
A person receiving a request for the termination of transmissions
of electronic mail under this subsection shall cease initiating
transmissions of electronic mail to the person submitting the
request not later than 48 hours after receipt of the request.
(b) Affirmative Authorization of Transmissions Without
Information.
(1) In general.
Subject to paragraph (2), a person may authorize another person
to initiate transmissions to the person of unsolicited commercial
electronic mail without inclusion in such transmissions of the
information required by section 3.
(2) Termination.
+ (A) Notice.
A person initiating transmissions of electronic mail under
paragraph (1) shall include, with each transmission of such
mail to a person authorizing the transmission under that
paragraph, notice that the person authorizing the
transmission may request at any time the recommencement of
the inclusion in such transmissions of the information
required by section 3.
+ (B) Deadline.
A person receiving a request under this paragraph shall
include the information required by section 3 in all
transmissions of unsolicited commercial electronic mail to
the person making the request beginning not later than 48
hours after receipt of the request.
(c) Constructive Authorization of Transmissions Without
Information.
(1) In general.
Subject to paragraph (2), a person who secures a good or service
from, or otherwise responds electronically to, an offer in a
transmission of unsolicited commercial electronic mail shall be
deemed to have authorized transmissions of such mail without
inclusion of the information required under section 3 from the
person who initiates the transmission providing the basis for such
authorization.
(2) Termination.
+ (A) Request.
A person deemed to have authorized the transmissions of
electronic mail under paragraph (1) may request at any time
the recommencement of the inclusion in such transmissions of
the information required by section 3.
+ (B) Deadline.
A person receiving a request under this paragraph shall
include the information required by section 3 in all
transmissions of unsolicited commercial electronic mail to
the person making the request beginning not later than 48
hours after receipt of the request.
(d) Effective Date of Termination Requirements.
Subsections (a), (b)(2), and(c)(2) shall take effect 30 days after
the date of enactment of this Act.
SEC. 8. ACTIONS BY PRIVATE PERSONS.
(a) In General.
Any person adversely affected by a violation of a provision of
section 3 or 7, or an authorized person acting on such person's
behalf, may, within 1 year after discovery of the violation, bring
a civil action in a district court of the United States against a
person who has violated the provision. Such an action may be
brought to enjoin the violation, to enforce compliance with the
provision, to obtain damages, or to obtain such further and other
relief as the court considers appropriate.
(b) Damages.
(1) In general.
The amount of damages in an action under this section for a
violation specified in subsection (a) may not exceed $5,000 per
violation.
(2) Relationship to other damages.
Damages awarded for a violation under this subsection are in
addition to any other damages awardable for the violation under
any other provision of law.
(c) Cost and Fees.
The court, in issuing any final order in any action brought under
subsection (a), may award costs of suit and reasonable attorney
fees and expert witness fees for the prevailing party.
(d) Venue; Service of Process.
Any civil action brought under subsection (a)in a district court
of the United States may be brought in the district in which the
defendant is found, is an inhabitant, or transacts business or
wherever venue is proper under section 1391 of title 28, United
States Code. Process in such an action may be served in any
district in which the defendant is an inhabitant or in which the
defendant may be found.
SEC. 9. RELATION TO STATE LAWS.
(a) State Law Applicable Unless Inconsistetive Authorization of
Transmissions Without
Information.
(1) In general.
Subject to paragraph (2), a person may authorize another person
to initiate transmissions to the person of unsolicited commercial
electronic mail without inclusion in such transmissions of the
information required by section 3.
(2) Termination.
+ (A) Notice.
A person initiating transmissions of electronic mail under
paragraph (1) shall include, with each transmission of such
mail to a person authorizing the transmission under that
paragraph, notice that the person authorizing the
transmission may request at any time the recommencement of
the inclusion in such transmissions of the information
required by section 3.
+ (B) Deadline.
A person receiving a request under this paragraph shall
include the information required by section 3 in all
transmissions of unsolicited commercial electronic mail to
the person making the request beginning not later than 48
hours after receipt of the request.
(c) Constructive Authorization of Transmissions Without
Information.
(1) In general.
Subject to paragraph (2), a person who secures a good or service
from, or otherwise responds electronically to, an offer in a
transmission of unsolicited commercial electronic mail shall be
deemed to have authorized transmissions of such mail without
inclusion of the information required under section 3 from the
person who initiates the transmission providing the basis for such
authorization.
(2) Termination.
+ (A) Request.
A person deemed to have authorized the transmissions of
electronic mail under paragraph (1) may request at any time
the recommencement of the inclusion in such transmissions of
the information required by section 3.
+ (B) Deadline.
A person receiving a request under this paragraph shall
include the information required by section 3 in all
transmissions of unsolicited commercial electronic mail to
the person making the request beginning not later than 48
hours after receipt of the request.
(d) Effective Date of Termination Requirements.
Subsections (a), (b)(2), and(c)(2) shall take effect 30 days after
the date of enactment of this Act.
SEC. 8. ACTIONS BY PRIVATE PERSONS.
(a) In General.
Any person adversely affected by a violation of a provision of
section 3 or 7, or an authorized person acting on such person's
behalf, may, within 1 year after discovery of the violation, bring
a civil action in a district court of the United States against a
person who has violated the provision. Such an action may be
brought to enjoin the violation, to enforce compliance with the
provision, to obtain damages, or to obtain such further and other
relief as the court considers appropriate.
(b) Damages.
(1) In general.
The amount of damages in an action under this section for a
violation specified in subsection (a) may not exceed $5,000 per
violation.
(2) Relationship to other damages.
Damages awarded for a violation under this subsection are in
addition to any other damages awardable for the violation under
any other provision of law.
(c) Cost and Fees.
The court, in issuing any final order in any action brought under
subsection (a), may award costs of suit and reasonable attorney
fees and expert witness fees for the prevailing party.
(d) Venue; Service of Process.
Any civil action brought under subsection (a)in a district court
of the United States may be brought in the district in which the
defendant is found, is an inhabitant, or transacts business or
wherever venue is proper under section 1391 of title 28, United
States Code. Process in such an action may be served in any
district in which the defendant is an inhabitant or in which the
defendant may be found.
SEC. 9. RELATION TO STATE LAWS.
(a) State Law Applicable Unless Inconsistent.
The provisions of this Act do not annul, alter, or affect the
applicability to any person, or otherwise exempt from the
applicability to any person, of the laws of any State with respect
to the transmission of unsolicited commercial electronic, except
to the extent that those laws are inconsistent with any provision
of this Act,and then only to the extent of the inconsistency.
(b) Requirement Relating to Determination of Inconsistency.
The Commission may not determine that a State law is inconsistent
with a provision of this Act if the Commission determines that
such law places greater restrictions on the transmission of
unsolicited commercial electronic mail than are provided for under
such provision.
SEC. 10. DEFINITIONS.
In this Act:
(1) Commercial electronic mail. The term ``commercial electronic
mail''means any electronic mail that
+ (A) contains an advertisement for the sale of a product or
service;
+ (B) contains a solicitation for the use of a toll-free
telephone number or a telephone number with a 900 prefix the
use of which connects the user to a person or service that
advertises the sale of or sells a product or service; or
+ (C) contains a list of one or more Internet sites that
contain an advertisement referred to in subparagraph (A) or a
solicitation referred to in subparagraph (B).
(2) Commission.
The term ``Commission'' means the Federal Trade Commission.
(3) State.
The term ``State'' means any State of the United States, the
District of Columbia, Puerto Rico, Guam, American Samoa, the
United States Virgin Islands, the Commonwealth of the Northern
Mariana Islands, the Republic of the Marshall Islands, the
Federated States of Micronesia, the Republic of Palau, and any
possession of the United States.
------------------------------
Date: Thu, 7 May 1997 22:51:01 CST
From: CuD Moderators <cudigest@sun.soci.niu.edu>
Subject: File 3--Cu Digest Header Info (unchanged since 7 May, 1997)
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End of Computer Underground Digest #9.43
************************************