AMENDMENT 689
Amendment: Section 2G2.5 is amended in the heading by adding at the end "; Failure to Provide Required Marks in Commercial Electronic Email".
The Commentary to §2G2.5 captioned "Statutory Provision" is amended by striking "Provision:" and inserting "Provisions: 15 U.S.C. § 7704(d);".
Chapter Three, Part C, as amended by Amendment 684 of this document, is further amended by adding at the end the following:
"§3C1.4. False Registration of Domain Name
If a statutory enhancement under 18 U.S.C. § 3559(f)(1) applies, increase by 2 levels.
Commentary
Background: This adjustment implements the directive to the Commission in section 204(b) of Pub. L. 108–482.".
Appendix A (Statutory Index) is amended by inserting after the line referenced to 15 U.S.C. § 6821 the following:
"15 U.S.C. § 7704(d) 2G2.5".
Reason for Amendment: This amendment (A) implements the directive to the Commission in section 204(b) of the Intellectual Property Protection and Courts Administration Act of 2004, Pub. L 109–9; and (B) addresses the new offense in section 5(d) of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, Pub L. 108–187 ("CAN-SPAM Act")(15 U.S.C. § 7704(d)).
Section 204(b) of the Intellectual Property Protection and Courts Administration Act of 2004 directed the Commission to ensure that the applicable guideline range for a defendant convicted of any felony offense carried out online that may be facilitated through the use of a domain name registered with materially false contact information is sufficiently stringent to deter commission of such acts. The amendment implements this directive by creating a new guideline, at §3C1.4 (False Registration of Domain Names), which provides a two-level adjustment for cases in which a statutory enhancement under 18 U.S.C. § 3559(f)(1) applies. Section 3559(f)(1), created by section 204(a) of the Intellectual Property Protection and Courts Administration Act of 2004, doubles the statutory maximum term of imprisonment, or increases the maximum sentence by seven years, whichever is less, if a defendant who is convicted of a felony offense knowingly falsely registered a domain name and used that domain name in the course of the offense. Basing the adjustment in the new guideline on application of the statutory enhancement in 18 U.S.C. § 3559(f)(1) satisfies the directive in a straightforward and uncomplicated manner.
Section 5(d)(1) of the CAN-SPAM Act prohibits the transmission of commercial electronic messages that contain "sexually oriented material" unless such messages include certain marks, notices, and information. The amendment references the new offense, found at 15 U.S.C. § 7704(d), to §2G2.5 (Recordkeeping Offenses Involving the Production of Sexually Explicit Materials). Prior to this amendment, §2G2.5 applied to violations of 18 U.S.C. § 2257, which requires producers of sexually explicit materials to maintain detailed records regarding their production activities and to make such records available for inspection by the Attorney General in accordance with applicable regulations. Although offenses under 15 U.S.C. § 7704(d) do not involve the same recording and reporting functions, section 7704(d) offenses essentially are regulatory in nature and in this manner are similar to other offenses sentenced under §2G2.5. In addition to the statutory reference changes, the amendment also expands the heading of §2G2.5 specifically to cover offenses under 15 U.S.C. § 7704(d).
Effective Date: The effective date of this amendment is November 1, 2006.