Can We Win a War on Spam?

Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws.
—Plato (427-347 B.C.)

by Patricia Fusco ISP-Planet Managing Editor [April 4, 2000]

The Commerce Subcommittee on Telecommunications, Trade and Consumer Protection last week approved the Unsolicited Electronic Mail Act of 1999 [H.R. 3113]. Dubbed the "Can Spam Act," the law aims to end the problem of unsolicited commercial e-mail. The bipartisan bill (sponsored by Representatives Heather Wilson (R-NM), Gary Miller (R-CA), and Gene Green (D-TX)) was introduced to the House in October 1999.

With a scheduled recess date of October 6, 2000, Congress has about 70 working days left to pass the bill this year. Due to time constraints, the 106th Congress may only consider high priority legislation in its second session. Is the "Can Spam Act" important enough to become law in an election year?

Perhaps it's not a matter of importance at all. For the most part, the legislation is not all that controversial. It's a relatively popular act on Capitol Hill. As a result, the "Can Spam Act" has a better chance of surviving Congress than bills covering more contentious issues, like gun control and election finance reform.

During its discovery process, Congress determined that there is substantial government interest in regulating unsolicited commercial e-mail (UCE) and unsolicited pandering e-mail. Congress further determined that Internet service providers should not be compelled to bear the costs spam without compensation from the sender. In a move to protect online privacy, Congress concluded that recipients of UCE have a right to decline to receive or have their children receive unsolicited and naughty e-mails.

The Act is in addition to and not in lieu of any other provisions of States' law relating to the transmission of e-mail messages. So ISPs will want to be familiar with the statutes already on the books in California, Connecticut, Nevada, Virginia, and Washington. With 11 other states working on anti-spam laws, it pays to know your state legislators.

Should the federal bill become law, it would require an accurate return address on UCE and make it illegal to continue spamming someone after the individual requests to be removed from a distribution list.

Who's On First?
However, Dave McClure, US Internet Industry Association executive director, said the bill is not just a poor piece of legislation, it's an invitation to legitimize corporate spam.

"H.R. 3113 is such stunningly bad legislation that I'm surprised it ever got out of the subcommittee" McClure said. "While purporting to limit unsolicited e-mail, it actually opens the floodgate for unsolicited commercial e-mail from any company with whom the recipient has an existing business relationship."

"That would include everyone you have ever done business with, from car dealers and credit card companies to any airline you have ever flown on and even to the bartender who served you a beer last night. All of which would be perfectly legal under this bill," McClure added.

Whose job is it, anyway?
Although enforcement of such a statute remains elusive, the Federal Communication Commission would be tasked with compelling conformance with the potential law and issuing orders. The courts would be left to determine if e-mail fraud had occurred and individuals would have to prove that they requested to be removed from a distribution list, but had still received spam from the same address.

USIIA's McClure said it would be a mistake to grant the FCC authority over e-mail.

"It sets up the FCC, an agency with no means to manage an 'opt-out' list, and no experience in doing so, to be the 'e-mail police' and it overlooks that fact that the FCC has no regulatory authority over electronic mailers," McClure said.

The statute could be effective if spammers used real e-mail addresses and considered the law a threat to their livlihood, liberty, and pursuit of e-mail addresses.

Is there enough space available in U.S. federal penitentiaries to house spammers? We may find out soon enough. There certainly are enough fake e-mail addresses around to keep spammers concealed from the long-arm of the law.

Will only the little guys pay?
As for Internet Service Providers, the bill requires that ISPs protect customers from spam. ISPs also have the right to sue spammers for $500 per message or $25,000 per day for each day such a violation continues.

The Coalition Against Unsolicited E-mail (CAUCE) supports the legislation and has been active in working with legislators, staff and other interested parties to gain its passage. John Mozena, CAUCE co-founder and vice president, said the most important feature of this legislation is that it empowers ISPs to set and enforce policies on whether their users may be spammed.

"This bill recognizes that the property rights of ISPs to regulate the use of their network are paramount, and that spammers must abide by the desires of the network owners or pay the price," Mozena said.

Upon receipt of spam in violation of an ISP's publicly available Acceptable Use Policy (AUP), the ISP must notify the violator of its policy in writing and request compliance with the FCC.

Can government run at light speed?
The FCC is then charged with serving the spammer with a complaint within 15 days of the ISP's notice. The Commission may proceed in the matter without a hearing. If the spammer requests a hearing, the FCC must determine whether the order given has been or is being violated. From there, the FCC is authorized to request the appropriate state's Attorney General apply to a district court for an order directing compliance with the notice.

Since the Internet is fast, and U.S. district courts are not, a lot of spam could be sent and delivered from the same individual. But that's not what this law is all about. It's about taking spammers off the "Information Super Highway," one at a time.

The bill relies on the district court system to work with an Attorney General and issue an order commanding compliance with the law. Failure to observe such an order may be punishable by the court as contempt.

It is a compromise piece of legislation that combines Rep. Wilson's consumer protection provisions with Rep. Miller's allowances for ISPs to protect their property and Greene's passion for Internet privacy.

The committee-approved bill must move through the full Commerce Committee and the House of Representatives before it could become law.

Rep. Miller, co-sponsor of the bill, said that he expects support for the bill throughout the entire process. "We now have momentum behind a sound approach to controlling the unsolicited commercial e-mail problem," Miller said.

The Congressional attempt to shift the cost of spam away from ISPs and e-mail recipients onto those who abuse the Internet has merit. But forcing the FCC, state Attorney General offices and district courts to pay for a war on spam seems absurd, when you and I can eliminate spam with one deft stroke on the delete key.

Lawmakers' attempts to thwart spam remind me of an old proverb: "Laws too gentle are seldom obeyed; too severe, seldom executed."

—End