Anti-spam panel: Proposed laws aren't enough

FTC panel focuses on issue

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.