Senate Will Consider Antispam Bill

WASHINGTON -- A pumped-up version of the first of many antispam bills introduced in Congress this year has been approved by a Senate committee and is going to a vote by the full Senate.

A new version of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) was approved by the Senate Commerce, Science, and Transportation Committee Thursday. It adds stiffer penalties for some kinds of activities associated with sending unsolicited commercial e-mail.

Stiffer Penalties

The old version of the bill set penalties at $10 for each piece of illegal spam sent, to a maximum of $500,000--or to $1.5 million if a court determines the spammer sent illegal e-mail "willfully and knowingly."

The new version allows fines of up to $100 per e-mail sent with misleading header information, and $25 per e-mail for other violations. Those might include e-mail with deceptive subject headings or without a functioning return address where the recipient can opt out of future e-mail. Maximum penalties are now $3 million if a court determines a spammer willfully sent illegal spam, and $1 million otherwise.

Also subject to the fines are activities such as establishing numerous e-mail accounts in an effort to make spam more difficult to track, hijacking computers to send spam, and "dictionary" attacks--sending e-mail to multiple combinations of letters and numbers on an e-mail server in the hope that some combinations are valid e-mail addresses.

The new version of CAN-SPAM also includes a provision prohibiting an e-mail sender from sharing or selling a person's e-mail address after the recipient has asked to be removed from the sender's mailing list.

Amendments Considered

Separately, two new antispam bills were announced this week, in addition to CAN-SPAM and six other bills already introduced.

CAN-SPAM's sponsors defend their bill as a good first step toward passing a national antispam law. Some antispam activists have criticized it for requiring spam recipients to opt out of future e-mail, instead of requiring that marketers get opt-in permission from e-mail recipients.

"We don't think our legislation is bulletproof," says Senator Ron Wyden, an Oregon Democrat and cosponsor of CAN-SPAM. "But we think it is a chance for the government to go on the offensive."

Still, Senator Bill Nelson (D-Florida) called for even stiffer penalties on spam containing fraudulent transmission information. CAN-SPAM allows for prison terms of up to one year for such activities, but Nelson offered an amendment that would allow racketeering charges under the Racketeering Influenced and Corrupt Organization Act. In May, Nelson introduced an antispam bill invoking RICO. He argued the RICO charges would let law enforcement authorities seize the assets of businesses engaged in spamming, but he withdrew his amendment after others on the committee spoke up against it.

"If you really want teeth in this bill to stop spammers, you've got to have more than just having a misdemeanor penalty," Nelson said.

Senator John D. Rockefeller, a West Virginia Democrat, urged Nelson not to withdraw his amendment. "A law without teeth is not a law," he said.

CAN-SPAM sponsors Wyden and Senator Conrad Burns (R-Montana) promise to work with Nelson and other lawmakers on the bill before it goes to the Senate floor. "[The bill] has gotten tougher in the last 24 hours, and it'll get tougher," Wyden says.

Other Antispam Action

The Commerce Committee approved an amendment offered by Senator John McCain (R-Arizona), who chairs the committee. McCain's amendment would make businesses that are knowingly promoted through e-mail with false or misleading transmission information subject to Federal Trade Commission penalties.

Another antispam bill made its debut Thursday. Senators Orrin Hatch, who chairs the Senate Judiciary Committee, and Patrick Leahy, the committee's ranking Democrat, introduced the Criminal Spam Act of 2003.

Among other changes in law, the Hatch-Leahy bill would make it a crime to hack into a computer to send bulk commercial e-mail, and would allow criminal penalties of up to five years in prison for criminal spam violations. Actions that could draw the prison time include sending bulk e-mail that conceals the source or destination of an e-mail in furtherance of another felony.

Also, late on Wednesday, Representatives Heather Wilson (R-New Mexico) and Gene Green (D-Texas) announced their own antispam legislation. Their bill allows e-mail users to opt out of all commercial e-mail from a company and prohibits companies from sending e-mail with fraudulent or misleading header information. It imposes criminal penalties of up to two years in prison and $250,000 for companies that continuously violate parts of the law, including provisions prohibiting fraudulent e-mail and protecting consumers from sexually oriented messages.