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CongressLine - Unsolicited Commercial E-Mail: Spam for the Masses

By Carol M. Morrissey, Published on June 14, 1998
In June of 1997, Sen. Torricelli (D-NJ) jumped on the bandwagon and introduced "The Electronic Mailbox Protection Act of 1997." S. 875 has the same "opt-out", sender requirements and FTC authority provisions that are included in Sen. Murkowski's legislation. Also included in the bill are a $5,000 civil penalty for a violation, restrictions on e-mail address "harvesting" and mandatory compliance with ISP requirements or standards. Again, this legislation did not see any action, but was later partially incorporated into S. 1618 by amendment. (For the text and a section-by-section analysis of S. 875, please go to http://www.junkemail.org/bills/. Please note that this site also provides a side-by-side comparison of the Murkowski, Smith and Torricelli bills.)

By July of 1997, the Chairman of the subcommittee on Telecommunications, Trade, and Consumer Protection, Rep. Tauzin (R-LA) probably felt obligated to throw his hat in the ring, so he introduced, "The Data Privacy Act of 1997." H.R. 2368 creates an industry task force to draft voluntary guidelines concerning the collection and use of personal information online and unsolicited electronic mail (such as honoring "opt-out" requests and providing complete sender information). This bill was referred to Rep. Tauzin's subcommittee, but other events have taken place since its introduction, which have overshadowed this particular bill.

The events that I am referring to are the passage in the Senate and referral to the House of a bill (S. 1618), which contains anti-spam provisions. On May 12, 1998, the Senate was considering legislation entitled, "The Slamming Protection Bill," aimed at protecting consumers from having their long distance carriers changed (or slammed) without verification. Sens. Murkowski and Torricelli saw this as their opportunity to get spam legislation moving, so they added their anti-spam provisions to the bill by an amendment which was agreed to by voice vote. The Senate then cleared the bill for the House by a vote of 99-0.

The spam amendment to the anti-slamming legislation (or the "spam slam" as it has been called) did not go unnoticed. The amendment requires that commercial e-mail fully identify the sender (including a return e-mail address), that marketers honor all "opt-out requests" by consumers and it vests the FTC with the authority to investigate complaints and impose fines. The direct marketing industry, as represented by the Direct Marketing Association and the ACLU were pleased since the legislation did not impose an outright ban on unsolicited e-mail and allows direct marketers to continue their business within certain parameters. There are also some ISP's who support the amendment in the hopes that it may achieve its aim and actually curtail unsolicited commercial e-mail.   Unfortunately, the Direct Marketing Association homepage does not have any   information on this legislation.

Text and section-by-section analysis of S. 875

 

Text and status of H.R. 2368

 

Text of amendment (S. 1618), section-by-section outline, introductory statement and Se. Murkowski's press release

 

Direct Marketing Association homepageOfficial ISP/C statement on spam

Forum for Responsible and Ethical Email (FREE)

Coalition Against Unsolicited Commercial Email (CAUCE)

State anti-spam legislation

John Marshall Law School:  spam related resources

EcoFuture

Fight Spam on the Internet!

The Anti-Spam Forces

On the other hand, most Internet Service Provider groups and consumer groups were incensed with the wording of the amendment. According to the Internet Service Providers' Consortium (ISP/C), not only does the amendment legitimize "spamming" by placing the burden on the consumer to reply to the "spammer" (the "opt-out" provision), but it does not address the cost of spam to the ISP's and the consumer nor does it go far enough to address the practice of spamming in general.  Other groups, such as the Forum for Responsible and Ethical Email (FREE) and the Coalition Against Unsolicited Commercial Email (CAUCE) are unhappy that individual consumers will have no right of redress under state law since the FTC has sole authority to punish spammers.

Much to the annoyance of the anti-spam forces, Rep. Tauzin introduced "The Anti-Slamming Amendments Act" (H.R. 3888) with similar anti-spam language two days after S. 1618 passed the Senate. Although S. 1618 has not been officially received in the House of Representatives, once it has been received, it will most likely be referred to the subcommittee on Telecommunications, Trade, and Consumer Protection of the committee on Commerce. This is the same subcommittee before which H.R. 3888 is currently pending.

The States Response

Two states, Washington and Nevada, have passed anti-spam legislation. The Washington law, which went into effect on June 11, 1998, makes it illegal for a bulk e-mailer to provide false information identifying the point of origin of the message, to provide false or misleading information in the subject line and allows for monetary damages for recipients and ISP's. The Nevada law, which is effective as of July 1, 1998, is similar to S. 1618 and H.R. 3888 in that it requires spam to identify the sender and has an "opt-out" provision for the consumer. (For more state information, please go to http://www.jmls.edu/cyber.statutes/email/state.html.)

Conclusion

The fate of spam legislation is highly uncertain - there has not even been a hearing held on the issue yet. (The first hearing on spam is currently scheduled for June 17, 1998 before the Senate committee on Commerce, subcommittee on Telecommunications.) As was voiced by a representative for the Center on Democracy & Technology, S. 1618 may be a "reasonable first step" for legislation which, if taken further, could easily trample on First Amendment rights.