(Enrolled as Agreed to or Passed by Both House and Senate)
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SECTION 3 DEFINITIONS.
In this Act:
(1) AFFIRMATIVE CONSENT- The term `affirmative consent',
when used with respect to a commercial electronic mail
message, means that--
(A) the recipient expressly consented to receive the
message, either in response to a clear and conspicuous
request for such consent or at the recipient's own
initiative; and
(B) if the message is from a party other than the
party to which the recipient communicated such
consent, the recipient was given clear and conspicuous
notice at the time the consent was communicated that
the recipient's electronic mail address could be
transferred to such other party for the purpose of
initiating commercial electronic mail messages.
(2) Commercial electronic mail message-
(A) IN GENERAL- The term `commercial electronic mail
message' means any electronic mail message the primary
purpose of which is the commercial advertisement or
promotion of a commercial product or service
(including content on an Internet website operated for
a commercial purpose).
(B) TRANSACTIONAL OR RELATIONSHIP MESSAGES- The term
`commercial electronic mail message' does not include
a transactional or relationship message.
(C) REGULATIONS REGARDING PRIMARY PURPOSE- Not later
than 12 months after the date of the enactment of this
Act, the Commission shall issue regulations pursuant
to section 13 defining the relevant criteria to
facilitate the determination of the primary purpose of
an electronic mail message.
(D) REFERENCE TO COMPANY OR WEBSITE- The inclusion of
a reference to a commercial entity or a link to the
website of a commercial entity in an electronic mail
message does not, by itself, cause such message to be
treated as a commercial electronic mail message for
purposes of this Act if the contents or circumstances
of the message indicate a primary purpose other than
commercial advertisement or promotion of a commercial
product or service.
(3) COMMISSION- The term `Commission' means the Federal
Trade Commission.
(4) DOMAIN NAME- The term `domain name' means any
alphanumeric designation which is registered with or
assigned by any domain name registrar, domain name
registry, or other domain name registration authority as
part of an electronic address on the Internet.
(5) ELECTRONIC MAIL ADDRESS- The term `electronic mail
address' means a destination, commonly expressed as a
string of characters, consisting of a unique user name
or mailbox (commonly referred to as the `local part')
and a reference to an Internet domain (commonly referred
to as the `domain part'), whether or not displayed, to
which an electronic mail message can be sent or
delivered.
(6) ELECTRONIC MAIL MESSAGE- The term `electronic mail
message' means a message sent to a unique electronic
mail address.
(7) FTC ACT- The term `FTC Act' means the Federal Trade
Commission Act (15 U.S.C. 41 et seq.).
(8) HEADER INFORMATION- The term `header information'
means the source, destination, and routing information
attached to an electronic mail message, including the
originating domain name and originating electronic mail
address, and any other information that appears in the
line identifying, or purporting to identify, a person
initiating the message.
(9) INITIATE- The term `initiate', when used with
respect to a commercial electronic mail message, means
to originate or transmit such message or to procure the
origination or transmission of such message, but shall
not include actions that constitute routine conveyance
of such message. For purposes of this paragraph, more
than one person may be considered to have initiated a
message.
(10) INTERNET- The term `Internet' has the meaning given
that term in the Internet Tax Freedom Act (47 U.S.C. 151
nt).
(11) INTERNET ACCESS SERVICE- The term `Internet access
service' has the meaning given that term in section
231(e)(4) of the Communications Act of 1934 (47 U.S.C.
231(e)(4)).
(12) PROCURE- The term `procure', when used with respect
to the initiation of a commercial electronic mail
message, means intentionally to pay or provide other
consideration to, or induce, another person to initiate
such a message on one's behalf.
(13) PROTECTED COMPUTER- The term `protected computer'
has the meaning given that term in section 1030(e)(2)(B)
of title 18, United States Code.
(14) RECIPIENT- The term `recipient', when used with
respect to a commercial electronic mail message, means
an authorized user of the electronic mail address to
which the message was sent or delivered. If a recipient
of a commercial electronic mail message has one or more
electronic mail addresses in addition to the address to
which the message was sent or delivered, the recipient
shall be treated as a separate recipient with respect to
each such address. If an electronic mail address is
reassigned to a new user, the new user shall not be
treated as a recipient of any commercial electronic mail
message sent or delivered to that address before it was
reassigned.
(15) ROUTINE CONVEYANCE- The term `routine conveyance'
means the transmission, routing, relaying, handling, or
storing, through an automatic technical process, of an
electronic mail message for which another person has
identified the recipients or provided the recipient
addresses.
(A) IN GENERAL- Except as provided in subparagraph
(B), the term `sender', when used with respect to a
commercial electronic mail message, means a person who
initiates such a message and whose product, service,
or Internet web site is advertised or promoted by the
message.
(B) SEPARATE LINES OF BUSINESS OR DIVISIONS- If an
entity operates through separate lines of business or
divisions and holds itself out to the recipient
throughout the message as that particular line of
business or division rather than as the entity of
which such line of business or division is a part,
then the line of business or the division shall be
treated as the sender of such message for purposes of
this Act.
(17) Transactional or relationship message-
(A) IN GENERAL- The term `transactional or
relationship message' means an electronic mail message
the primary purpose of which is--
(i) to facilitate, complete, or confirm a commercial
transaction that the recipient has previously agreed
to enter into with the sender;
(ii) to provide warranty information, product recall
information, or safety or security information with
respect to a commercial product or service used or
purchased by the recipient;
(I) notification concerning a change in the terms
or features of;
(II) notification of a change in the recipient's
standing or status with respect to; or
(III) at regular periodic intervals, account
balance information or other type of account
statement with respect to, a subscription, membership, account, loan, or
comparable ongoing commercial relationship involving
the ongoing purchase or use by the recipient of
products or services offered by the sender;
(iv) to provide information directly related to an
employment relationship or related benefit plan in
which the recipient is currently involved,
participating, or enrolled; or
(v) to deliver goods or services, including product
updates or upgrades, that the recipient is entitled
to receive under the terms of a transaction that the
recipient has previously agreed to enter into with
the sender.
(B) MODIFICATION OF DEFINITION- The Commission by
regulation pursuant to section 13 may modify the
definition in subparagraph (A) to expand or contract
the categories of messages that are treated as
transactional or relationship messages for purposes of
this Act to the extent that such modification is
necessary to accommodate changes in electronic mail
technology or practices and accomplish the purposes of
this Act.
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