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SEC. 3. DEFINITIONS.
(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 authorised 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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