Even Tough Laws May Not Kill Spam

WASHINGTON -- Two proposals aiming to curb unwanted commercial e-mail being considered by Congress don't go far enough to eliminate spam, say some antispam advocates.

The country needs federal antispam legislation, agreed most of the group of eight panelists at the Federal Trade Commission's recent Spam Forum. But all disagreed with a proposal recently offered by Representative Zoe Lofgren, and most said they didn't support a bill offered by Senators Conrad Burns and Ron Wyden.

The preferred course? A national law that requires e-mail marketers to get opt-in permission and lets private citizens sue spammers, much like a junk fax law passed by Congress in 1991, said David Kramer, of the Wilson, Sonsini, Goodrich and Rosati law firm.

"Where there is the reward to the consumer for serving the public interest by going out and taking action, if only for $1500, in his or her own name ... you will see individuals going to court and making those claims," Kramer said.

Alternative Action

Faring better with the panel was a proposal by Senator Charles Schumer (D-New York), that creates a national "no-spam" list much like a national do-not-call telemarketing list. Supporters said the bill would at least give e-mail users or enforcement agencies a place to start court action against spammers.

But John Patrick, chairman of the Global Internet Project, said a national no-spam list would be difficult to maintain and wouldn't address spam coming from outside U.S. borders. He urged lawmakers to give technological solutions a chance to work.

"If I'm a spammer in Tajikistan, why do I care about any state or (U.S.) federal law?" he asked. "We're really kidding ourselves here if we think we can go to small claims court to sue the spammer in Tajikistan."

Although Kramer called for a law allowing private lawsuits, he and others panned a proposal by Lofgren, (D-California), that offers a bounty to people who report spam offenders and requires commercial e-mail to be labeled "ADV." Spammers will simply ignore the labeling requirement, and it will penalize legitimate marketers because recipients or ISPs will filter out e-mail labeled "ADV", critics said.

A bounty isn't necessary, because e-mail users already report spam by the thousands to the FTC and ISPs, said Ray Everett-Church, counsel for the Coalition Against Unsolicited Commercial Email. But the bigger issue is what happens after those complaints are made. "The problem isn't finding the spammers, it's getting law enforcement to act," he said. "It's a solution to a problem that doesn't really exist."

The Burns-Wyden bill, introduced in April, would fine persistent spammers $10 per e-mail. It garnered some support from the FTC panel. The Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) would imprison for up to a year spammers who include misleading header information in unsolicited commercial e-mail.

Jurisdictions Disagree

Jerry Cerasale, senior vice president of the Direct Marketing Association, said his group supports the bill because it penalizes spammers who refuse to let people opt out of mailings or who try to hide their identities. But Kramer and Paula Selis, senior counsel for the Washington State Attorney General's Office, also raised concerns about the bill, saying it creates a low standard for spammers to meet.

Selis said she'd prefer a national law to the patchwork of 29 state antispam laws that now exist, but the Burns-Wyden law would preempt some state laws tougher on spammers. Washington state, for example, imposes a $500 penalty per spam message, instead of $10. "At $10 a pop, it's basically the cost of doing business," Selis said.

Kramer had stronger words for CAN-SPAM, saying it is faulty in not requiring e-mail marketers to get opt-in permission from recipients. "It's unfortunate it's called the CAN-SPAM law, because what it says is you can spam," he said. "While I applaud the senators here for taking some action, I think it's badly misdirected."

David Sorkin, a law professor at The John Marshall Law School, agreed, saying any effective legislation should require an opt-in approach. "If I were going to draft the worst possible bill, I would probably do a few things slightly different than the Burns-Wyden bill did," he said.

A Wyden spokesperson said her boss is aware of other ideas to fight spam. "He welcomes discussion about ways to make the legislation stronger and better," she said.

A Burns spokesperson agreed, saying the bill is a good first step. "There needs to be legislation," she said.

Burns opposes allowing private lawsuits because he wants to keep trial lawyers out of the debate, she added. "If you start with a private right of action, you're basically lining trial lawyers' pockets," she added.

Drastic Times

Most panelists agreed, however, that current state laws aren't working.

Steve Richter, general counsel for the Email Marketing Association, said it's impossible for members to negotiate through the patchwork of state laws. Selis of Washington state admitted that few states have the resources to enforce their antispam laws, because other crimes often take priority.

State laws have raised awareness of the spam issue, however, Everett-Church said. "What we've seen in those states is a response to federal inaction on the issue," he said. "You see an outcry from consumers ... to address the problem, even if it is local."

Asked by FTC Commissioner Mozelle Thompson if the spam problem has reached the point of requiring federal legislation, Everett-Church said his group has sought a national antispam law since 1997. Ferris Research estimates spam will cost U.S. businesses more than $10 billion in 2003, Everett-Church added. "I'm here to say we told you so," he said. "A bad legislative solution will only exacerbate the problem. It's past time for a solution."

Still, FTC Commissioner Orson Swindle urged those at the three-day spam forum to offer several solutions, from legislative to technological. He advocates a technological fix that lets e-mail users receive e-mail only from people in their address books.

Swindle called e-mail the "killer app" of the Internet, and spam is putting the Internet in "grave danger," even causing the potential for national security problems.

"Spam is going to kill the killer app if we don't do something about it," he said. "These end-users, these consumers, by the millions are absolutely getting fed up with spam. If we turn them off, the consequences economically, socially and development-wise are going to be extremely serious."