Congress Takes On Spam

The e-attention of Washington lawmakers is turning to the scourge of unsolicited email. Will this result in useful legislation, or just a lot of posturing?

by Patricia Fusco ISP-Planet Managing Editor [September 8, 1999]

Were you aware that congressional concern has cast its official eye upon your email inbox—and that the exercise has spawned several legislative hatchlings from Capitol Hill this year?

The Inbox Privacy Act of 1999, for example, has been undergoing its slow ascent to ordinance since it was read into the congressional record in March and referred to the Committee on Commerce. Senator Frank H. Murkowski introduced the bold initiative in an attempt to thwart unsolicited e-mail by attacking spammers at the cash core of their existence.

Strong medicine
The bill would grant to the Federal Trade Commission authority to investigate unsolicited e-mail activities as they relate to commercial fraud. It would also permit state attorneys general to bring civil action against spammers on behalf of state residents as parens patriae.

The potential law would further grant Internet Service Providers the right to bring civil action against a person violating FTC and state rules. ISPs could file suit against an e-mail abuser for damages of up to $50,000 per day.

While it's possible that the mere threat of a FTC investigation may discourage some spammers from distributing unsolicited e-mail, the cost of systematic enforcement could prove to be staggering and kill the bill in budget review.

Likewise, an aggressive state attorney general might succeed in abating junk e-mail, but that would likely take a class action suit and those, too, can get pretty pricey.

What gives this bill some semblance of real teeth is that it allows the owner of a violated network to pursue a spammer in civil court. One can almost hear the cries of "vengeance by mine" echoing from the mouths of ISP technicians the land over.

Survival of the fittest?
Unfortunately, the survival rate of bills on Capitol Hill is comparable to that of the Sea Monkey: Hundreds are conceived for each one that reaches maturity. During the 105th Congress, for example, over 9,100 bills were introduced, but only 402 of these were enacted into law. If the Inbox Privacy Act succumbs to the odds, dying untimely in committee due to manpower and funding limitations, maybe Representative Gary Miller's Can Spam Act would fit the bill.

Introduced to the House early in June, this bill allows e-mail service providers that suffer damages from a spam attack to bring a civil suit against the assailant in federal district or state courts. The courts could award up to $25,000 per day to cover damages suffered by the provider as a result of the violation.

A savvy piece of legislation, the Can Spam bill received much fanfare upon it's introduction, but it has since been referred to the Committee on Commerce, the Committee on the Judiciary, and the Subcommittee on Telecommunications, Trade, and Consumer Protection for further consideration. Rather sounds like it's gone off the menu for the moment.

Even if the Can Spam bill manages to resurface on Capitol Hill intact, however, the burden of its enforcement would—as with the Inbox Privacy Act—fall squarely on the shoulders of service providers willing to bring suit against spammers that hijacked their mail servers.

Of course, these two bills aren't the only congressional attempts to stop spam and maintain the integrity of your e-mail address. They are simply the two legislative efforts that make the most sense in their attempts to foil e-mail abusers.

Et cetera
Consider for a moment the E-mail User Protection Act as introduced by Representative Gene Green. This bill attempts to prohibit fraudulent abuses of distributing unsolicited bulk e-mail as it interferes with interstate or foreign commerce. Almost certain to be a jurisdictional nightmare, the bill charges the FTC with enforcing the potential law that could fine violators up to $50 (zowie!!) for each deceptive message delivered by e-mail.

In addition to financial penalties, a violator could be imprisoned for one year. Of course, there is no mention of how these individuals would be extradited from any part of the world to serve a one-year jail sentence somewhere in the U.S. should they be found guilty of the infraction. It's unlikely that this law would succeed in preventing the distribution of spam on the Internet, as the cost of enforcing it would be so high as to prevent it's own implementation.

As Congress reconvenes after its late summer break, let's hope the members return with a clearer vision of what they can and can't do to curb abuse of the e-mail bitstream. May they grant ISPs a timely and efficient means to exercise legitimate power to pursue in court someone that has abused their networks!

Had Congress taken such action before Labor Day, your in-box would likely not be filled up with Latino girl offers, weight loss programs, and get-rich-uick schemes upon your return to the keyboard.

Admittedly, Congress has a few other issues on their agenda. But the budget bipartisanship bickering, Medicare overhaul, and juvenile gun control laws will just have to wait until spam is dealt a legislative deathblow and the even tenor of our virtual lives is restored.

—End

Read Part 1 of Pat Fusco's Congressional E-Legislation Barrage.
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