Will spam legislation work?

Advocacy groups say proposals will bring more spam

WASHINGTON - Amid a chorus of voices calling on the U.S. Congress to do something about spam, lawmakers appear to be ready to pass antispam legislation this year, but consumer advocacy groups say current proposals are likely to lead to more spam, not less.

Most witnesses at a Senate Commerce, Science and Transportation Committee hearing Wednesday said they supported federal legislation as at least part of the solution for cutting the amount of unsolicited commercial e-mail Internet users receive. With lawmakers noting that some estimates have spam making up 40 percent or more of all e-mail, the hearing had an atmosphere of urgency.

Committee Chairman John McCain, an Arizona Republican, said he hoped to engineer a vote on an antispam bill on the Senate floor before August. "It's clearly an issue that needs to be addressed one way or another," McCain said.

Proponents of a national antispam law, including the Direct Marketing Association and large e-mail services such as Yahoo, argue that a patchwork of nearly 30 state antispam laws make it difficult for any one state to enforce its antispam law. A national approach, they argue, would create uniform rules for e-mail senders to play by and would put more U.S. government resources behind the fight against spam.

"The volume of spam today really has the potential of poisoning the medium, and doing it in a real hurry," said Senator Ron Wyden, an Oregon Democrat who has cosponsored the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act. "I'm absolutely convinced that if you bring a modest number of enforcement actions that are tough, that send a real message out there that there are going to be significant consequences, you change the world out there."

But a group of eight antispam and consumer groups have questioned all legislation currently before Congress. "There certainly does seem to be a lot of interest on Capitol Hill to get some legislation moving," said Ray Everett-Church, counsel for the Coalition Against Unsolicited Commercial Email (CAUCE). "The problem is that I have yet to see a piece of legislation that qualifies as antispam."

CAUCE and seven other groups Thursday fired a letter off to four congressional committee chairman, saying the current crop of congressional proposals aren't tough enough on spam.

"At present, none of the legislative proposals currently being considered in Congress contain the measures we recommend; rather, they repeat many of the legislative mistakes that have exacerbated the unsolicited commercial e-mail problem, permitting it to grow to the epidemic proportions it has reached today," said the letter, signed by leaders of Junkbusters, the Consumer Federation of America, the National Consumers League and others. The full text of the letter is available at http://www.cauce.org/pressreleases/20030522.shtml.

On Thursday, the California State Senate decided to not wait for federal legislation, instead passing a bill that would turn spam from a misdemeanor to a felony and cost spammers an estimated $500 per unsolicited e-mail sent.

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.

A bill introduced this month by Senator Bill Nelson, a Florida Democrat, could lead to private lawsuits by allowing some spammers to be charged with racketeering offenses.  Everett-Church praised the bill for opening up the possibility of private lawsuits, but the Nelson bill still requires consumers to opt out of spam.

"It's the first that even hints of giving consumers, those who are victimized by spammers, any right of action," Everett-Church said of the Nelson bill. "The only problem is that it goes off the rails and requires an opportunity to opt out. The opt-out undoes all of the other benefits."

Others, including CAN-SPAM cosponsor Senator Conrad Burns, a Montana Republican, have questioned whether private lawsuits would help fight spam. Burns doesn't want to create more work for trial lawyers, his spokeswoman said.

Private lawsuits won't get at most spammers because they hide behind false identities, added J. Trevor Hughes, executive director of the Network Advertising Initiative, a cooperative of Internet advertisers. "Spammers spend their days looking for ways to technologically obscure their identities," Hughes said during Wednesday's hearing. "Pursuing spammers requires enormous technological, financial and investigative resources. Individuals do not have such resources, but governments and ISPs do."

Hughes also spoke out against those wanting a law requiring Internet advertisers to get opt-in permission from their customers. "Over the past few years, our industry has lost critical time debating this issue, while spam has been allowed to proliferate," said Hughes, whose group supports the CAN-SPAM bill, which outlaws deceptive e-mail headers and requires commercial e-mail to include opt-out instructions and a valid postal address.

"Let me make this perfectly clear: This (opt-in) debate, regardless of what standard is eventually adopted, will not result in a reduction of spam," Hughes added. "A spammer's stock and trade is in deception -- they do not care about whether they have permission from the recipient."

A major problem with creating federal antispam legislation is that many people can't agree on what spam is, said Eytan Urbas, vice president of Mailshell, a Santa Clara, Calif., company that markets an antispam software suite. In a March survey of more than 1,100 Mailshell customers, 97 percent of respondents agreed that spam was random commercial e-mail promoting pornography or unwanted business opportunities.

But 53 percent said any unwanted e-mail from companies the recipient had a prior relationship with is also spam, and 44 percent said a mass distribution of e-mail such as jokes or political views from someone they know personally is also spam.

Urbas also noted that 8 percent of respondents -- people who are customers of an antispam suite -- admitted to purchasing a product promoted to them through spam. The Mailshell survey is available at http://www.mailshell.com/mail/client/oem2.html/step/pr/article/17#2.

"I support legislation, but I am also concerned that it is not the quick fix that many people believe it is," Urbas said. "There's a lot that has to happen, including people stopping buying from them."

Most people pushing for a federal antispam law agree that legislation will not solve the problem on its own, but it could be one part of a multipronged attack that includes antispam technology and a set of standards endorsed by the e-mail marketing industry. But when participants at Wednesday's Senate hearing suggested more time was needed to come up with better legislation or to allow the e-mail marketing industry to endorse standards, CAN-SPAM sponsors Burns and Wyden protested, saying consumers are fed up with spam.

"We know that the industry is going to have to step forward," Burns said. "It is my belief that they will not until there is a national legislation that forces them to consider ... how to deal with this thing. It's time to quit beating around the bush and tell it like it is."

Paul Roberts in Boston contributed to this story.

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