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Can Congress Can Spam?

March 27, 2001 

WASHINGTON – Professional spammers could face fines of up to $500,000 and as much as a year in prison if a bill that might be introduced in the Senate as soon as Tuesday passes into law.

The proposed legislation, with the unwieldy formal title of the C.A.N. (controlling the assault of nonsolicited pornography and marketing) Spam Act of 2001, would set federal standards for mass-distributed unsolicited e-mail, defining unlawful spam as e-mail that fails to include an accurate electronic return address and a clearly stated opt-out policy through which recipients of the message could request removal from the distribution list. Marketers would have 10 business days to honor the requests before being subject to penalties.

The bill, sponsored by Sen. Ron Wyden, D-Ore., and Sen. Conrad Burns, R-Mont., also would allow Internet service providers, but not individuals, to sue for damages. However, the Unsolicited Commercial Electronic Mail Act of 2001, a similar spam bill in the House sponsored by Rep. Heather Wilson, R-N.M., would give both individuals and ISPs the right to sue for up to $50,000 if they are targeted by illegal spam.

That bill, which passed the House's Telecommunications and Internet subcommittee with little opposition, has drawn fire from the Direct Marketing Association over concern that it would give too much power to the ISPs. At issue is a provision that would make it illegal for any person to send unsolicited commercial e-mail through an ISP's server in violation of the provider's anti-spam policy. The law would not set any guidelines or requirements for ISP anti-spam policies, however.

"The big problem we have with [Wilson's] bill is that ... an Internet service provider can create its own rules concerning e-mail and then the Federal Trade Commission would enforce those Internet service providers' rules," says Jerry Cerasale, senior VP of government affairs for the Direct Marketing Association.

Cerasale said the bill could lead to a situation in which direct marketers would be responsible for complying with the policies of some 3,000 different ISPs before they could embark on e-mail campaigns.

Both the House and Senate versions of the proposed legislation contain a mandatory labeling provision that would require spam to be identified as such, raising questions about the right to anonymity among free speech advocates.

"The First Amendment gives you the right not only to speak, but the right to refrain from speaking," says Marv Johnson of the American Civil Liberties Union. "To have the government tell you that you will speak in a certain fashion goes against what the First Amendment is all about."

Expressing somewhat ambivalent support for the proposed laws are Internet service providers AOL and EarthLink (ELNK) , which have both said that they agree with the legislation in spirit but that they doubt it would have much of an impact on deterring spam if passed. Both ISPs have been actively engaged in proprietary anti-spamming efforts, dedicating extensive time and resources to the problem, which an AOL representative said can result in upward of 250,000 customer complaints in a single day.

AOL already has successfully used trespassing laws to sue spammers, but it says the results of such efforts are often less than satisfying, despite winning several cases.

"As far as recovering money damages against a spammer, it's certainly good to have that tool available to you, but a lot of times a judgment is just a piece of paper, recovering is another aspect," says Dave Baker, VP of law and policy at EarthLink. "A lot of time spammers don't have a lot of assets."

Hans Peter Brondmo, author of The Eng@ged Customer, a roadmap for acquiring and retaining customers by creating ongoing relationships through e-mail, said federal legislation is unlikely to deter spammers because unsolicitied e-mail can be an incredibly lucrative business.

"It costs $1,000 or less to send out these e-mails," Brondmo says. "A handful of responses and you are probably profitable."

Further handicapping the likely success of any anti-spam law, he said, is the relative ease with which spammers can hide their identities. Hacking into an ISP or domain name from offshore computers is common and perpetrators often go undetected.

Nevertheless, lawmakers from both chambers are piling on to two bills proposed, having found a technology issue that directly inconveniences their constituents and is easy to understand.

In the case of Wilson, the crusade to regulate spam began shortly after she was elected in 1998 when she received an e-mail with the subject line "What the federal government doesn't want you to know," and opened it – only to be directed to a porn site.

Burns took an interest in quashing spam after his constituents began approaching him on the street wondering if, as chairman of the communications subcommittee, he could do something about the excessive amount of junk mail landing in their inboxes.

Both lawmakers introduced similar bills last year, but those efforts died in the Senate when the legislative calendar was up.

By Kate Miller, Copyright © 1998-2001 Standard Media International

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