How many times does Congress need to lose the war on spam? Federal legislators drafted the first anti-spam bills back in 1997 and are proving that in 2001 they have not learned anything from past defeats.

by Patricia Fusco ISP-Planet Managing Editor [March 22, 2001]

While industry studies point to skyrocketing rates of unwanted bulk email on the Internet, legislators hope the latest versions of the same old anti-spam bills will actually become law.

Rep. Heather Wilson (R-NM) and Rep. Gene Green (D-TX) reintroduced HR 718, the Unsolicited Commercial Electronic Mail Act, with a few refinements for 2001. The bill passed the House Commerce Committee's Subcommittee on Telecom & the Internet on March 21, and now goes to the the full Commerce Committee which is chaired by Billy Tauzin (R-LA). The bill can also be changed by the Judiciary Committee, even before it faces the Senate.

HR 718 is a longer and broader bill than HR1017, the Anti-Spamming Act of 2001, also reintroduced on Capitol Hill last week.

Rep. Bob Goodlatte's (R-VA) HR 1017 is a narrow bill intended to supplement HR 718 in one specific area—forging headers on spam. Together, both bills seek to criminalize sending bulk unsolicited commercial email (UCE) "with knowledge that such message falsifies an Internet domain, header information, date or time stamp, originating e-mail address, or other identifier."

HR 1017 would also criminalize selling or distributing any computer program that:

• Is designed or produced primarily for the purpose of concealing the source or routing information
• Has only limited commercially significant purpose or use other than to conceal such source or routing information, or
• Is marketed by the violator or another person acting in concert with the violator and with the violator's knowledge for use in concealing the source or routing information of such messages.

The legislative initiatives would establish a maximum penalty of $15,000 ($10 per email) and make the spam sender liable for victims' monetary losses.

Rep. Goodlatte, whose Internet Freedom Act last year included similar legislation but was stalled in Congress, said unsolicited email, such as advertisements, solicitations, or chain letters, is the junk mail of the information age.

"This legislation gives law enforcement the tools they need to prevent unsolicited email from clogging up citizens' in-boxes," Goodlatte said.

HR 718 goes to the House Telecommunications Subcommittee this week for debate.

Net violation
Consumer groups, privacy advocates, and ISPs consider spam to be one of the Internet's greatest embarrassments. Both industry watchdogs and insiders agree that UCE violates the online community's privacy and steals bandwidth from service providers' networks.

At this point, ISPs' and consumer groups' sole legal recourse against spam has been to seek redress in civil courts. Early law suits have produced mixed results and have been a potentially costly endeavor for would-be spam stoppers, but legal precedent will eventually be established and ISPs would benefit greatly from continuing the fight against spam in civil courts.

State courts have so far struck down two attempts by state legislators to rein in spammers. Judges in California and Washington have ruled that some of the state-enacted anti-spam legislation is unconstitutional because spam is interstate commerce and interstate commerce is governed by federal law, not state law. This just goes to show how difficult it is for state representatives to craft laws that prohibit spam.

It's equally unlikely that any federal anti-spam legislation enacted by Congress this year would end up passing First Amendment tests in federal courts. But the first test that court-bound spammers would face is whether the unsolicited email message they distributed in bulk constitutes fraud. Defendents will argue that spammers have a right to send e-mail to strangers as part of the First Amendment right to free speech.

Deception enabled
Federal law empowers the Federal Trade Commission and the Department of Justice to combat consumer fraud. In addition, the Computer Fraud and Abuse Act provides the federal government with statutory authority to investigate and prosecute those involved in damaging computers or accessing them without authorization.

Under Section 5 of the Federal Trade Commission Act, the FTC can prosecute those engaged in deceptive or misleading trade practices. The Consumer Fraud Division of the Justice Department is responsible for protecting consumers against fraudulent business practices, regardless of the medium. Similarly, states have civil and criminal laws designed to protect consumers from fraudulent advertising and business practices.

So if the federal government can already prosecute fraudulent spammers, and service providers and activists alike can sue spammers for damages in civil courts, why do we need anti-spam legislation from Congress?

The primary issues raised by unsolicited commercial email voiced by Internet users are that:

• it intrudes upon individual privacy;
• identifying and deleting unwanted messages places a burden on the individual's limited time; and,
• it inappropriately imposes costs on individuals in the form of connection time and server and disk storage space among others.

Protect yourself
Filtering options remain one of the best ways to stem the flow of UCE over the Internet. Filters have different implications for service providers and end users simply because filtering can take place at the server level of the ISP or at the end-user level of their subscribers. Essentially, filters address each of the primary issues raised by UCE:

• Filters offer home and business users the tools they required to control the influx of UCE and protect privacy by limiting intrusions into email inboxes
• So users don't waste time reading or deleting UCE
• Some costs are incurred by ISPs setting up server-side anti-spam filters, but doing so also protects ISPs bandwidth and storage resources from spam-jacking.

For the most part, technology provides some useful tools for addressing UCE, so we must ask once again, why does the Internet industry need anti-spam legislation from Congress?

Co-opted public defender
Perhaps Congress feels that it must protect constituents—make that consumers—from the dangerous perils of spam?

But the Direct Marketing Association has assembled online resources for consumers to opt-out of bulk e-mail programs. In contrast to the DMA's opt-out approach of e-MPS, ChooseYourMail provides an opt-in system that allows users to register their email address if they wish to receive commercial email.

Granted, opt-in and opt-out approaches on their own do not eliminate spam-induced costs on ISPs, but these e-mail choice programs are another option for consumers that land somewhere in between server-side filtering technologies and the delete key.

Congress should establish public policies that advocate end-user control over UCE through the continued development of filtering tools and promoting research efforts to prohibit the use of fraudulent headers on the Net. Such measures would greatly assist end-users and service provider's efforts to stop spam.

Because email is global in nature the only intelligent solution for obstructing unsolicited email must also be global. Setting relevant Internet standards to thwart spam is the only viable answer for users and ISPs alike.

Congressional representatives need to stop wasting legislative resources on spam and start encouraging the industry to come up with a dynamic solution for UCE—once and for all.

— End