Senate Panel In A Spam-Fighting Mood

An anti-spam bill that would empower ISPs and state Attorneys General to file suit against spammers has passed a critical legislative hurdle and is headed for a vote in front of the full Senate.

"My bill strangles out spam email by imposing steep fines and empowering consumers with the choice to close their doors to hyper-marketing once and for all," says Senator Conrad Burns (R.-Mont.), a member of the Senate Telecommunications Subcommittee and author of the CAN-SPAM (Controlling the Assault of Non-Solicited Pornography and Marketing Act) bill. "Congress can do something about this. On this issue either you are for the consumer or against the consumer. There is no middle ground."

Spam is an escalating problem that affects ISPs and consumers, filling mail servers and mailboxes with junk mail ranging from enticements for pornographic Web sites to burn-fat and grow-hair scams. Industry analysts say spam accounts for as much as 50% of an ISPs email traffic flow.

That means users are disgruntled over spam littering their mail and taking up their time. And ISP executives are having to buy more servers to deal with the deluge, while dedicating IT workers to deal with the incoming spam and customer relations workers to deal with angry users.

And despite the Direct Marketing Association's claims that spam is being controlled by industry self-regulation, analysts, ISPs and anti-spam fighters say the problem is only escalating.

In fact, a spokesperson for MAPS LLC (Mail Abuse Prevention System), an anti-spam group that runs a blackhole list of spammers, asserts that she saw a 98% increase in spam during the first three months of this year over the same period last year.

"It's frightening," says Margie Arbon, director of operations at MAPS in Redwood City, Calif. "There are some 25 million small businesses in the United States and if 1% sent you one email per year that you had to opt out of, that would be 685 emails a day that you'd have to deal with."

The bill -- S. 630 -- passed the full Commerce Committee with a unanimous vote. Burns contends that this is the first time a bill aimed at stopping unsolicited email has advanced to the full Senate for debate and a vote.

The legislation is designed to:

require e-marketers to include a working return address to allow recipients the option of refusing emails;

prohibits e-marketers from using false subject lines;

$10 per unlawful message up to an overall cap of $500,000. That amount may be tripled if the courts find the violation was willful;

empowers State Attorneys General with the ability to bring suit on behalf of the citizens of their states;

gives ISPs the ability to bring suit to keep spam off their networks, and

subjects spammers who intentionally disguise their identities to misdemeanor criminal penalties.

MAPS' Arbon says the legislation simply doesn't have what it would take to effectively tackle the spam problem.

"My personal opinion is that bad legislation is worse than no legislation," says Arbon, who objects to the fact that the bill only addresses opt-out requirements and does not call for consumers to opt-in, or specifically request any commercial email that is sent to them. "It's about permission and you can't presume permission. It just doesn't work."

Arbon also says the bill should enable consumers the right to sue spammers directly, instead of merely empowering the states to do that for them. And she opposes the bill because it would override individual state laws, some of which, she says, are stronger than this piece of federal legislation.

But Jim Conway, vice president of government relations at the Direct Marketing Association, says the fact that the bill, if it eventually becomes law, would set a national standard would be a good thing for businesses.

"If this bill passed, the federal law would preempt all the states and that would make it a lot easier for companies to deal with one single statutory authority," says Conway, whose marketing association opposes the bill in general. "Right now there are 22 states with spam regulations that have to be followed by our membership. The Internet is a borderless medium. That's why states shouldn't be in this."

But Conway says people are concerned about fraud and pornography and those issues are being unfairly tied to the overall issue of spam.

"We don't think they should be able to prohibit the sending of commercial email," says Conway. "We think the self-regulatory system on the Internet has been working very well."

If the full Senate passes the CAN-SPAM bill, it will head to a House committee and from there to a full House vote if it finds support. If it advances that far, and differences in language between the approved bills are resolved, then it will go to the president's desk. President Bush has not expressed a formal opinion on the bill.