Will spam legislation work?

Advocacy groups say proposals will bring more spam

Also late Thursday, a bill introduced by Representative Richard Burr, a North Carolina Republican, became the sixth piece of antispam legislation introduced in Congress this year. Burr's bill, cosponsored by the chairmen of the House Judiciary and the House Energy and Commerce committees, would provide for criminal and civil penalties for fraudulent spam, require a mechanism for consumers to opt out on all commercial e-mail and would require senders to provide a valid street address. The Burr bill, similar in some ways to the CAN-SPAM bill introduced in the Senate in April, would also make it illegal to falsify header information or harvest e-mail addresses from Web sites for the purposes of sending them spam.

Representative James Sensenbrenner, the chairman of the House Judiciary Committee, said in a statement he hopes the House will pass the bill by late June.

"Those who falsify their e-mail identity, send sexually-explicit e-mail to unsuspecting individuals, and use e-mail as a weapon will be punished severely with criminal penalties under this legislation," Sensenbrenner, a Wisconsin Republican, said in the statement. "No legislation alone can stop the spam scourge. This problem only will be addressed through federal legislation in concert with technical solutions and the efforts of ISPs and legitimate marketers. I urge consumers to take advantage of software that blocks spam."

But the Burr bill, along with other leading candidates for passage, allows spammers to continue sending unsolicited commercial e-mail until a customer opts out of receiving more, the eight consumer groups countered. "Any law that defines acceptable criteria for sending unsolicited bulk commercial e-mail will amount to little more than establishing the conditions for a federal license to spam," the letter continued. "By establishing an 'opt-out' legal regime, Congress would undercut those businesses who respect consumer preferences and give legal protection to those who do not."

Most of the current bills create a level of legitimacy for senders of unsolicited commercial e-mail, said CAUCE's Everett-Church, because spamming would be legal until a consumer opts out, and under most of the bills, consumers would have to separately opt out of e-mail from each spam operation. "You essentially are sanctioned by law, you get legal protection for sending unwanted e-mail," Everett-Church said. "That will result in more spam, not less."

Others question if a law forcing consumers to opt out would cripple the efforts of ISPs (Internet service providers) to block unsolicited commercial e-mail. Attorney Pete Wellborn, of Wellborn & Butler, represented ISP Earthlink  in a lawsuit against a spammer from Buffalo, N.Y., and he applauded the recent focus on spam in Washington, D.C. But he also suggested that laws forcing consumers to opt out could require ISPs to let through any spam that consumers haven't protested.

"Such a law would unconstitutionally seize from ISPs the right to say no to unsolicited commercial e-mail," Wellborn said.

Most of the antispam bills now before Congress also do not allow individuals to file lawsuits against spammers, and the eight consumer groups called for Congress to allow such "private rights of action." The groups also expressed concern that federal legislation could preempt stronger state laws, such as a felony spam law passed in Virginia in April.