HR 1685 IH

To provide for the recognition of electronic signatures for the conduct of interstate and foreign commerce, to restrict the transmission of certain electronic mail advertisements, to authorize the Federal Trade Commission to prescribe rules to protect the privacy of users of commercial Internet websites, to promote the rapid deployment of broadband Internet services, and for other purposes.

May 5, 1999

Mr. BOUCHER (for himself and Mr. GOODLATTE) introduced the following bill; which was referred to the Committee on Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

To provide for the recognition of electronic signatures for the conduct of interstate and foreign commerce, to restrict the transmission of certain electronic mail advertisements, to authorize the Federal Trade Commission to prescribe rules to protect the privacy of users of commercial Internet websites, to promote the rapid deployment of broadband Internet services, and for other purposes.

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 `Internet Growth and Development Act of 1999'.

TITLE I--AUTHORIZATION OF ELECTRONIC SIGNATURES IN COMMERCE

SEC. 101. DEFINITIONS.

For purposes of this title, the following definitions shall apply:

(1) ELECTRONIC COMMERCE- The term `electronic commerce' means the transaction or conduct of any business that is in or that affects interstate or foreign commerce and that is in whole or part transacted or conducted by electronic means.

(2) ELECTRONIC MEANS- The term `electronic means' includes all forms of electronic communication mediated by computer, including telephonic communications, facsimile, electronic mail, electronic data exchanges, satellite, cable, and fiber optic communications.

(3) ELECTRONIC AUTHENTICATION- The term `electronic authentication' means any methodology, technology, or technique intended to--

(A) establish the identity of the maker, sender, or originator of a document or communication in electronic commerce; and

(B) establish the fact that the document or communication has not been altered.

(4) ELECTRONIC SIGNATURE- The term `electronic signature' means any electronic symbol or series of symbols, created, or processed by a computer, intended by the party using it (or authorizing its use) to have the same legal force and effect as a manual signature.

SEC. 102. VALIDITY OF ELECTRONIC AUTHENTICATION.

(a) VALIDITY OF ELECTRONIC SIGNATURES- All electronic signatures that have been authenticated through the use of a means of electronic authentication that complies with subsection (d) shall have standing equal to paper-based, written signatures, so that--

(1) any rule of law which requires a record to be in writing shall be deemed satisfied; and

(2) any rule of law which requires a signature shall be deemed satisfied.

(b) VALIDITY OF ELECTRONIC RECORDS- Electronic records shall not be denied legal effect, validity, or enforceability solely because such records are in electronic form.

(c) VALIDITY OF STATE LAWS- Nothing in this section shall be construed to preempt the law of a State that

enacts legislation governing electronic transactions that is consistent with subsections (a) and (b).

(d) MEANS OF ELECTRONIC AUTHENTICATION-

(1) IN GENERAL- For purposes of this title, a means of electronic authentication complies with the requirements of this section if it--

(A) reliably establishes the identity of the maker, sender, or originator of a document or communication in electronic commerce; and

(B) reliably establishes the fact that the document or communication has not been altered.

(2) METHODS OF PROOF- A person may demonstrate compliance with the requirements of paragraph (1) by demonstrating that a means of electronic authentication--

(A) uses an identification methodology that is unique to the person making, sending, originating a document or communication;

(B) the identification methodology shall be capable of verifying the identity of such person; and

(C) the identification methodology is linked to the data or communication transmitted in such a manner that if such data or communication has been altered, the authentication becomes invalid.

TITLE II--ELECTRONIC MAIL ADVERTISEMENTS

SEC. 201. UNSOLICITED ELECTRONIC MAIL ADVERTISEMENTS.

Title VII of the Communications Act of 1934 is amended by adding at the end the following section:

`SEC. 715. UNSOLICITED ELECTRONIC MAIL ADVERTISEMENTS.

`(a) COMPLIANCE OF REGISTERED USERS WITH PROVIDER POLICY REQUIRED- No registered user of an electronic mail service provider shall use or cause to be used that electronic mail service provider's equipment in violation of that electronic mail service provider's policy prohibiting or restricting the use of its service or equipment for the initiation of unsolicited electronic mail advertisements.

`(b) COMPLIANCE BY SENDERS WITH PROVIDER POLICY REQUIRED- No person or other entity shall use or cause to be used, by initiating an unsolicited electronic mail advertisement, an electronic mail service provider's equipment in violation of that electronic mail service provider's policy prohibiting or restricting the use of its equipment to deliver unsolicited electronic mail advertisements to its registered users.

`(c) PROVIDER POLICIES NOT REQUIRED- An electronic mail service provider shall not be required to create a policy prohibiting or restricting the use of its equipment for the initiation or delivery of unsolicited electronic mail advertisements.

`(d) CONTINUED PROTECTION FROM BEING TREATED AS PUBLISHER- Nothing in this section shall be construed to limit or restrict the rights of an electronic mail service provider under section 230(c)(1) of this Act, or any decision of an electronic mail service provider to permit or to restrict access to or use of its system, or any exercise of its editorial function.

`(e) REMEDIES-

`(1) PRIVATE ACTIONS BY PROVIDERS- In addition to any other remedy available under law, any electronic mail service provider whose policy on unsolicited electronic mail advertisements is violated as provided in this section may bring a civil action to recover the actual monetary loss suffered by that provider by reason of that violation, or liquidated damages of $50 for each electronic mail message initiated or delivered in violation of this section, up to a maximum of $25,000 per day, whichever amount is greater.

`(2) ATTORNEY FEES- In any action brought pursuant to paragraph (1), the court may award reasonable attorney's fees to a prevailing party.

`(3) NOTICE OF POLICY REQUIRED- In any action brought pursuant to paragraph (1), the electronic mail service provider shall be required to establish as an element of its cause of action that prior to the alleged violation, the defendant had actual notice of both of the following:

`(A) The electronic mail service provider's policy on unsolicited electronic mail advertising and

`(B) The fact that the defendant's unsolicited electronic mail advertisements would use or cause to be used the electronic mail service provider's equipment.

`(f) DEFINITIONS- As used in this section:

`(1) ELECTRONIC MAIL ADVERTISEMENT- The term `electronic mail advertisement' means any electronic mail message, the principal purpose of which is to promote, directly or indirectly, the sale or other commercial distribution of goods or services to the recipient.

`(2) UNSOLICITED ELECTRONIC MAIL ADVERTISEMENT- The term `unsolicited electronic mail advertisement' means any electronic mail advertisement that meets both of the following requirements:

`(A) It is addressed to a recipient with whom the initiator does not have an existing business or personal relationship.

`(B) It is not sent at the request of or with the express consent of the recipient.

`(3) ELECTRONIC MAIL SERVICE PROVIDER- The term `electronic mail service provider' means any person or other entity that provides registered users the ability to send or receive electronic mail and that is an intermediary in sending or receiving electronic mail.

`(4) INITIATION- The term `initiation' of an unsolicited electronic mail advertisement refers to the action by the initial sender of the electronic mail advertisement. It does not refer to the actions of any intervening electronic mail service provider that may handle or retransmit the electronic message.

`(5) REGISTERED USER- The term `registered user' means any person or other entity that maintains an electronic mail address with an electronic mail service provider.'.

TITLE III--ONLINE PRIVACY PROTECTION

SEC. 301. ONLINE PRIVACY PROTECTION.

(a) INFORMATION COLLECTION REGULATIONS- Any person operating a commercial Internet website shall clearly and conspicuously provide notice of its collection, use, and disclosure policies with regard to personally identifiable information, including--

(1) the personally identifiable information that the website operator collects from individuals visiting the website; and

(2) the uses that the website operator makes of the personally identifiable information, including whether the operator makes the information available to any third parties.

(b) ENFORCEMENT- Any knowing violation of the requirements under subsection (a) shall be treated as an unfair or deceptive act or practice under section 5 of the Federal Trade Commission Act (15 U.S.C. 45).

TITLE IV--BROADBAND DEPLOYMENT

SEC. 401. ACCELERATED DEPLOYMENT OF INTERNET BACKBONE.

(a) INTERLATA INTERNET SERVICES- Paragraph (21) of section 3 of the Communications Act of 1934 (47 U.S.C. 153(21)), relating to the definition of interLATA service, is amended by inserting before the period the following: `, except that such term shall not include services that consist of or include the transmission of any data or information, including any writing, signs, signals, pictures, or sounds related to the transmission of such data or information, by means of the Internet or any other network that employs Internet Protocol-based or other packet-switched technology'.

(b) VOICE INTERLATA INTERNET SERVICES- Neither a Bell operating company, nor any affiliate of a Bell operating company, may provide, by means of the Internet or any other network that employs Internet Protocol-based or other packet-switched technology, two-way voice-only interLATA telecommunications services originating in any of its in-region States until such time as the Federal Communications Commission approves the application of such company for such State pursuant to section 271(d) of the Communications Act of 1934. The terms in this subsection shall have the same respective meanings given such terms in sections 3 and 271 of such Act.

SEC. 402. ACCELERATED DEPLOYMENT OF BROADBAND SERVICES.

Title VII of the Communications Act of 1934 is further amended by adding at the end thereof the following new section:

`SEC. 716. ACCELERATED DEPLOYMENT OF BROADBAND SERVICES.

`(a) BROADBAND SERVICES PLANS-

`(1) PLAN REQUIRED- Within 180 days after the effective date of this section, each local exchange carrier shall submit to the State commission in each State in which such carrier does business a plan to provide broadband telecommunications service in all local exchange areas in which such carrier has telephone exchange service customers as soon as such broadband telecommunications service is economically reasonably and technically feasible. The plan shall include all terms and conditions, including pricing, under which the services shall be provided. The test of economic reasonability and technical feasibility shall be made separately by the local exchange carrier for each local exchange, and the plan shall be considered certified 45 days after submission unless the State commission rejects the plan within such 45 days. Upon rejection of a plan, successive plans shall be submitted until approval is obtained. The plan shall be implemented within 180 days of the certification of the plan in each local exchange in which the provision of the service is both economically reasonable and technically feasible. Upon certification of its plan, the carrier shall be obligated by terms of the plan (including any modifications that it requests that are thereafter certified) but shall otherwise provide such services free of Federal and State price, rate, rate of return, and profit regulation. Upon a determination by the State commission that a local exchange is served by another provider of broadband telecommunications services, or any broadband Internet access transport provider, or upon a determination by such State commission that the local exchange carrier makes broadband telecommunications services available to 70 percent of the access lines in an exchange, a local exchange carrier shall no longer be obligated by the terms of any such plan in such local exchange.

`(2) STATE MODIFICATIONS PROHIBITED- Except upon request of the carrier, the State commission shall have no authority to modify any plan submitted pursuant to paragraph (1).

`(3) NO COMMISSION AUTHORITY- The Commission shall have no authority with respect to the terms of any plan and shall have no authority with respect to the approval or rejection of any such plan.

`(b) SUPERSESSION OF OTHER REQUIREMENTS- An incumbent local exchange carrier's provision of broadband local telecommunications services shall not be subject to the requirements of sections 251(c)(3) and 251(c)(4) of the Act in any State in which that carrier certifies to the State commission that--

`(1) in central offices in which it provides local loops that are conditioned for broadband services, it provides such loops to other carriers at least as quickly as it provides them for its own customers;

`(2) in central offices in which it does not currently provide local loops that are conditioned for broadband services, but in which such service is economically reasonable and technically feasible, it will provide such loops within 120 days of a request for such conditioning from another carrier; and

`(3) conditioned loops are provided upon such prices and other terms and conditions as the parties shall agree, or in any event of disagreements, as are determined through commercial arbitration, in which the commercial arbitrator shall establish the price based upon the cost of the loops and the costs for

such conditioning that have been incurred by the local exchange carrier plus a reasonable profit.'.

TITLE V--ANTITRUST AND CRIMINAL PROVISIONS

SEC. 501. PROHIBITION ON ANTICOMPETITIVE BEHAVIOR BY INCUMBENT LOCAL EXCHANGE CARRIERS.

In any civil action based on a claim arising under section 1, 2, or 3 of the Sherman Act (15 U.S.C. 1, 2, 3), evidence that an incumbent local exchange carrier that has market power in the broadband service provider market has willfully and knowingly failed to provide conditioned unbundled local loops when economically reasonable and technically feasible under section 716(a) of the Communications Act of 1934, or restrains unreasonably the ability of a carrier to compete in its provision of broadband services over a local loop, shall be sufficient to establish a presumption of a violation of such section 1, 2, or 3 of the Sherman Act.

SEC. 502. PROHIBITION ON ANTICOMPETITIVE CONTRACTS BY BROADBAND ACCESS TRANSPORT PROVIDERS.

In any civil action based on a claim arising under section 1, 2, or 3 of the Sherman Act (15 U.S.C. 1, 2, 3), evidence that a broadband access transport provider that has market power in the broadband service provider market has offered access to a service provider on terms and conditions, other than terms justified by demonstrable cost differentials, that are less favorable than those offered by such operator to itself, to an affiliated service provider, or to another service provider, or restrains unreasonably the ability of a service provider from competing in its provision of broadband services, shall be sufficient to establish a presumption of a violation of such section.

SEC. 503. PROHIBITION ON ANTICOMPETITIVE OR DISCRIMINATORY BEHAVIOR BY BROADBAND ACCESS TRANSPORT PROVIDERS.

It shall be unlawful for a broadband access transport provider to engage in unfair methods of competition or unfair or deceptive acts or practices, the purpose or effect of which is to discriminate in favor of a service provider that is affiliated with a broadband access transport provider or to restrain unreasonably the ability of a service provider that is not affiliated with a broadband access transport provider from competing in its provision of any of the services provided by a service provider as set forth in section 505(3).

SEC. 504. PROTECTION FROM FRAUDULENT UNSOLICITED E-MAIL.

Section 1030 of title 18, United States Code, is amended--

(1) in subsection (a)(5)--

(A) by striking `or' at the end of subparagraph (B); and

(B) by inserting after subparagraph (C) the following new subparagraphs:

`(D) intentionally and without authorization initiates the transmission of a bulk unsolicited electronic mail message to a protected computer with knowledge that such message falsifies an Internet domain, header information, date or time stamp, originating e-mail address or other identifier; or

`(E) intentionally sells or distributes any computer program that--

`(i) is designed or produced primarily for the purpose of concealing the source or routing information of bulk unsolicited electronic mail messages in a manner prohibited by subparagraph (D) of this paragraph;

`(ii) has only limited commercially significant purpose or use other than to conceal such source or routing information; or

`(iii) is marketed by the violator or another person acting in concert with the violator and with the violator's knowledge for use in concealing the source or routing information of such messages;';

(2) in subsection (c)(2)(A)--

(A) by inserting `(i)' after `in the case of an offense'; and

(B) by inserting after `an offense punishable under this subparagraph;' the following: `; or (ii) under subsection (a)(5)(D) or (a)(5)(E) of this section which results in damage to a protected computer';

(3) in subsection (c)(2), by adding at the end the following new subparagraph:

`(D) in the case of a violation of subsection (a)(5)(D) or (E), actual monetary loss and statutory damages of $15,000 per violation or an amount of up to $10 per message per violation whichever is greater; and';

(4) in subsection (e)--

(A) by striking `and' at the end of paragraph (8);

(B) by striking the period at the end of paragraph (9); and

(C) by adding at the end the following new paragraphs:

`(10) the term `initiates the transmission' means, in the case of an electronic mail message, to originate the electronic mail message, and excludes the actions of any interactive computer service whose facilities or services are used by another person to transmit, relay, or otherwise handle such message;

`(11) the term `Internet domain' means a specific computer system (commonly referred to as a `host') or collection of computer systems attached to or able to be referenced from the Internet which are assigned a specific reference point on the Internet (commonly referred to as an `Internet domain name') and registered with an organization recognized by the Internet industry as a registrant of Internet domains;

`(12) the term `unsolicited electronic mail message' means any substantially identical electronic mail message other than electronic mail initiated by any purpose to others with whom such person has a prior relationship, including prior business relationship, or electronic mail sent by a source to recipients where such recipients, or their designees, have at any time affirmatively requested to receive communications from that source; and

`(13) the term `Internet' means all computer and telecommunications facilities, including equipment and operating software, which comprise the interconnected network of networks that employ the Transmission Control Protocol/Internet Protocol, or any predecessor or successor protocols to such protocol, to communicate information of all kinds by wire or radio.'.

(5) in subsection (g), by inserting `and reasonable attorneys' fees and other litigation costs reasonably incurred in connection with civil action' after `injunctive relief or other equitable relief'.

SEC. 505. DEFINITIONS.

For purposes of this title:

(1) BROADBAND- The term `broadband' refers to a transmission capability in excess of 200 kilobits per second in at least one direction.

(2) BROADBAND ACCESS TRANSPORT PROVIDER- The term `broadband access transport provider' means one who engages in the broadband transmission of data between a user and his service provider's point of interconnection with the broadband access transport provider's facilities. Such term shall also include a service provider who provides to itself, over facilities owned by it or under its control, the broadband transport of services between itself and its users.

(3) SERVICE PROVIDER- The term `service provider' means a person who provides a service that enables users to access content, information, electronic mail, or other services. The term may also include access to proprietary content, information, and other services as part of a package of services offered to consumers.

(4) INTERNET- The term `Internet' means all computer and telecommunications facilities, including equipment and operating software, which comprise the interconnected network of networks that employ the Transmission Control Protocol/Internet Protocol, or any predecessor or successor protocols to such protocol, to communicate information of all kinds by wire or radio.

(5) BROADBAND SERVICE PROVIDER MARKET- The term `broadband service provider market' includes the provision of broadband services over a single broadband access transport provider's facilities.

END