The U.S. House of Representatives Commerce Committee convened yesterday to examine ways to crack down on mass junk mailers and prevent such so-called “spam” from thwarting efforts to build consumer confidence in electronic commerce.
As it considers an anti-spam bill introduced by Rep. Heather Wilson (R-New Mexico), the committee is consulting a handful of Internet business executives and personal experience to determine the overall impact of spam in cyberspace.
“Spamming has a profound effect on consumers, Internet service providers and the Internet as a whole,” Committee Chairman Thomas Bliley (R-Virginia) said in a prepared statement before the hearing began. Consumers spend time and money sifting through the many messages to determine which are unsolicited, and ISPs have to deal with bulk e-mails to multiple recipients, which can tie up network bandwidth and monopolize staff resources.
Such spamming can harm the ISP’s reputation and cause consumers to distrust doing business online, Bliley added.
Wilson noted that spam is frequently used to bypass parental controls on the Internet and lure minors to adult Web sites. “Spam is particularly troublesome for parents who want their children to have access to the advantages of the Internet while protecting them from its seamier side,” she said.
The Edge of Free Speech
Despite her concerns for child safety, Wilson is equally concerned that the government does not go so far in its attempts to protect consumers that it cramps others’ rights to free speech. Wilson noted that her Unsolicited Electronic Mail Act of 1999, H.R. 3113, was written with careful attention to the Constitution.
Rather than ban spam, which would violate free speech, the bill would give recipients greater power to opt out of receiving it, Wilson says.
“The bill recognizes that Americans have a right to stand on the electronic town square on a soap box and speak, but no American can be forced to listen if they don’t want to. This is particularly true when that ‘speech’ invades the ‘castle’ of one’s home,” she said.
H.R. 3113 requires that all senders of spam include a viable return address to which the recipient can respond to and be removed from the distribution list. If spammers do not honor the “remove” request, the sender would have the power to sue the spammer to recover the actual cost of the violation or $500 per violation, whichever is greater.
The bill would also give ISPs the right to establish privacy policies and the right to decline to carry commercial electronic e-mail without compensation. They would also be allowed to sue for damages or $500 (US$) per violation.
As an alternative to suing, which AllAdvantage.com Vice President Ray Everett-Church argued is costly and not particularly effective, the bill would allow consumers and ISPs to appeal to the Federal Communications Commission to punish the spammer.
According to Everett-Church, whose company is a member of the voluntary Coalition Against Unsolicited Commercial E-mail, tracking down spammers is expensive because the spammers rarely register their Web sites or Internet accounts under legitimate names and addresses.
Coalition members “are eager to see a marketplace solution” through new technology to screen e-mails through ISP servers, he said, but they are also hoping to see legislation that gives consumers clear methods for recourse.
To assist in the development of a technological solution, H.R. 3113 calls for the creation of a “global opt-out list” to which e-mail users can add their name and e-mail address. If a bulk e-mailer sends spam to any name that has been on that list for at least 30 days, the FCC can order the bulk e-mailer to stop all future transmissions.
“In effect, bulk e-mailers are required to clean their distribution lists — at their own cost — every thirty days,” similar to current law for postal direct mailers, Wilson said.
Bills “R” Us
While co-sponsoring Wilson’s anti-spam bill, Rep. Gene Green(D-Texas) is also pushing a separate bill to combat spam with anti-fraud tactics. H.R. 1910, the E-mail User Protection Act, prohibits the use of false e-mail addresses and routing information, makes it illegal to use or create software primarily designed to spam and makes it illegal to take over another person’s e-mail account to send out spam.
Meanwhile, Rep. Gary Miller (R-California) is pushing his own anti-spam bill, H.R. 2162, the “Can Spam Act of 1999.” The bill takes a similar approach to Wilson’s, giving ISPs the power to prohibit spamming by their customers. However, it lays out a slightly different punishment for violators.
Under Miller’s bill, the ISP could recover $50 per message, up to $25,000 per day, for every unsolicited mail message, “thus eliminating the incentive to spam against an ISP’s will,” he said. Like Green’s bill, H.R. 2162 would also prohibit the hijacking of another person’s domain name for the purpose of sending out spam.
Both Green and Miller’s bills were referred to the Crime and Telecommunications, Trade, and Consumer Protection Subcommittees, while Wilson’s has not yet been assigned.
Executive Branch and Industry Support
The Federal Trade Commission, which has been investigating spam along with other e-commerce fraud violations for several years, welcomed the legislators’ efforts to codify anti-spam rules.
However, Eileen Harrington, associate director of marketing practices in the FTC’s Bureau of Consumer Protection, urged them to help funnel more money her way to keep up enforcement work. “The more resources that we can have in terms of people and computers to do these kinds of investigations, the better job we can do. This is a whole new area of marketing that we are working hard to stay on top of,” she said.
Harrington also pushed for broader language to include domain name registration information. “Increasing penalties operate as a deterrent,” she said, “but I think there is a pervasive problem” that needs a more aggressive approach.
Congress’ anti-spam efforts also won praise from members of the industry, who argued that spam is doing extensive harm to companies that are trying to save money by doing business on the Internet.
However, many echoed one of the principal concerns that has pervaded similar Capitol Hill discussions of laws for other areas of the Internet and e-commerce: When government gets involved, it rarely is able to keep up with marketplace and technological change.
Internet attorney Alan Charles Raul argued that, “to the maximum extent possible, therefore, Internet users and providers should be free to establish their own policies. Government must play the crucial role of encouraging the development and disclosure of applicable usage policies, and then holding entities accountable for compliance with those policies.”
In fact, the Direct Marketing Association is already moving toward a voluntary anti-spam solution, Vice President of Government Affairs Jerry Cerasale said. “While The DMA does not object to a legislative solution to [spam], we believe that current efforts of industry and innovations in technology render any immediate legislation unnecessary.”
The DMA’s electronic mail preference service, launched last week, will allow people to remove their e-mail addresses from marketing lists the way that Wilson’s bill suggests.
“We believe that once the e-MPS is fully embraced by consumers and businesses, it will significantly empower consumers with choice whether to receive unsolicited electronic mail messages,” Cerasale said.