Anti-spam panel: Proposed laws aren't enough

WASHINGTON -- Two proposals aiming to curb unwanted commercial e-mail currently being discussed in the U.S. Congress won't go far enough toward eliminating spam, several members of a panel of antispam advocates said Friday at a forum at the U.S. Federal Trade Commission (FTC).

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Most of the group of eight panelists agreed that federal anti-spam legislation is needed in the U.S., but all disagreed with a proposal recently offered by Representative Zoe Lofgren and most said they didn't support a bill offered by Senators Conrad Burns and Ron Wyden. What's needed instead, said David Kramer, of the Wilson, Sonsini, Goodrich and Rosati law firm, is a national law that requires e-mail marketers to get opt-in permission and allows private citizens to sue spammers, much like a junk fax law passed by Congress in 1991.

"Where there is the reward to the consumer for serving the public interest by going out and taking action, if only for $1,500, in his or her own name ... you will see individuals going to court and making those claims," Kramer said.

Faring better with the panel was a proposal by Senator Charles Schumer, a New York Democrat, that would create a national "no-spam" list, much like a national do-not-call telemarketing list. Supporters of such a bill said it would at least give e-mail users or enforcement agencies a place to start court action against spammers.

But John Patrick, chairman of the Global Internet Project, said a national no-spam list would be difficult to maintain and wouldn't address spam coming from outside U.S. borders. He urged lawmakers to give technological solutions a chance to work.

"If I'm a spammer in Tajikistan, why do I care about any state or (U.S.) federal law?" he asked. "We're really kidding ourselves here if we think we can go to small claims court to sue the spammer in Tajikistan."

Although Kramer called for a law allowing private lawsuits, he and others panned a proposal by Lofgren, a California Democrat, which would offer a bounty to some people who report spam offenders and require commercial e-mail to have an "ADV" label. The labeling requirement will be ignored by spammers and penalize legitimate marketers because e-mail users or Internet service providers would filter out messages with the "ADV" label, critics said.

And the bounty isn't necessary, because e-mail users are already reporting spam by the thousands to the FTC and Internet service providers, said Ray Everett-Church, counsel for the Coalition Against Unsolicited Commercial Email. But the bigger issue is what happens after those complaints are made. "The problem isn't finding the spammers, it's getting law enforcement to act," he said. "It's a solution to a problem that doesn't really exist."

The Burns-Wyden bill, introduced earlier this month, would allow fines of $10 per e-mail for spammers who refuse to stop, and it garnered some support from the FTC panel. The Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) also imposes a criminal penalty of up to a year in jail for spammers who include misleading header information in unsolicited commercial e-mails.

Jerry Cerasale, senior vice president of the Direct Marketing Association, said his group supports the bill because it creates penalties for spammers who refuse to let people opt out of mailings or who try to hide their identities. But Kramer and Paula Selis, senior counsel for the Washington State Attorney General's Office, raised concerns about the bill, saying it creates a low standard for spammers to meet.

Selissaid she'd prefer a national law to the patchwork of 29 state anti-spam laws that now exist, but the Burns-Wyden law would preempt some state laws tougher on spammers. Washington state, for example, has a $500 penalty per e-mail spam, instead of $10. "At $10 a pop, it's basically the cost of doing business," Selis said.

Kramer had stronger words for CAN-SPAM, saying it doesn't require e-mail marketers to receive opt-in permissions from those they send e-mail to. "It's unfortunate it's called the CAN-SPAM law, because what it says is you can spam," he said. "While I applaud the senators here for taking some action, I think it's badly misdirected."

David Sorkin, a law professor at The John Marshall Law School, agreed, saying any effective legislation would have to require an opt-in approach. "If I were going to draft the worst possible bill, I would probably do a few things slightly different than the Burns-Wyden bill did," he said. "It'd take me awhile to figure out which things I'd do different."

A spokeswoman for Wyden said her boss is aware of other ideas for fighting spam. "He feels it's a positive step toward stemming the flow of spam," she said. "He welcomes discussion about ways to make the legislation stronger and better."

A Burns spokeswoman agreed, saying the bill is a good first step. "There needs to be legislation," she said. "We need to do something about spam."

Burns has opposed allowing private lawsuits because he wants to keep trial lawyers out of the debate, she added. "If you start with a private right of action, you're basically lining trial lawyers' pockets," she added.

Most on the panel agreed, however, that current state laws aren't working. Steve Richter, general counsel for the Email Marketing Association, said it's impossible for his group's members to negotiate through the patchwork of state laws, and Washington State's Selis admitted that few states were actually throwing resources at enforcing their anti-spam laws because other crimes often take priority.

State laws have raised awareness of the spam issue, however, Everett-Church said. "What we've seen in those states is a response to federal inaction on the issue," he said. "You see an outcry from consumers ... to address the problem, even if it is local."

Asked by FTC Commissioner Mozelle Thompson if the spam problem had reached a tipping point where federal legislation needed to be passed, Everett-Church said his group has been calling for a national anti-spam law since 1997, and Ferris Research estimates spam will cost U.S. businesses more than $10 billion in 2003. "I'm here to say we told you so," he said. "A bad legislative solution will only exacerbate the problem. It's past time for a solution."

Still, FTC Commissioner Orson Swindle urged those at the three-day spam forum to come up with several solutions, from the legislative to the technological. He advocated a technological fix that would allow e-mail users to receive e-mail only from people in their address books.

Swindle called e-mail the "killer app" of the Internet, and spam is putting the Internet in "grave danger," even causing the potential for national security problems. "Spam is going to kill the killer app if we don't do something about it," he said. "These end-users, these consumers, by the millions are absolutely getting fed up with spam. If we turn them off, the consequences economically, socially and development-wise are going to be extremely serious."