Antispam Legislation Hits Rocky Road

WASHINGTON, D.C. -- You probably know that spam is sometimes obscene, often annoying, and rarely welcome. You might not know that it makes up roughly 40 percent of all e-mail and costs businesses about $10 billion annually. And worse, though Congress is weighing a number of antispam bills, lawmakers are apparently divided on whether to do anything at all to quash spam.

"I don't know what spam is," said Representative Maxine Waters (D-California) near the end of Tuesday's hearing by the House Crime, Terrorism, and Homeland Security Subcommittee. But Waters opposes limits on e-mail, fax, and telephone communications: "I'm just not in the business of that kind of censorship," she said.

Early Battles

It was not a promising start for groups who hoped Congress would pass antispam legislation this session. The subcommittee, chaired by Representative Howard Coble (R-North Carolina), discussed the Reduction in Distribution of Spam Act (HR 2214), one of several antispam measures currently floating around Capitol Hill.

If passed, the RID Spam Act would require e-mail marketers to label their messages as advertising and include valid return addresses. It would enable consumers to opt out of receiving commercial e-mail, and would allow state and federal law enforcement officials and Internet service providers to prosecute and sue spammers.

Antispam activists characterize spam as a scourge estimated to cost businesses $10 billion yearly in diminished productivity, extra bandwidth, filtering programs, and lost e-commerce.

Wanted: Sharper Teeth

At least one consumer group thinks the bill stops short.

Consumers Union Legislative Counsel Chris Murray proposes adding an opt-in provision, which would let advertisers send material only to consumers who expressly request it. The bill's current opt-out clause gives consumers the right to tell vendors to leave them alone, but Murray testified at the hearing that that policy still leaves too much leeway for firms to pester consumers. He compared an opt-in clause to the Federal Trade Commission's recently created Do Not Call list for telemarketers.

"The opt-in simply starts with the assumption that you don't want anything," Murray said. "Consumers should have the ability to say no to all spam, even when that spam comes from companies that are not engaged in fraud."

Murray also pointed out that the bill does not let consumers sue spammers, either individually or as part of a class action. In theory, ISPs would act as consumers' legal proxy, but Murray contends consumers should get private rights to legal action as well.

Softer on Spammers?

Murray's proposals met some resistance. Representative Bob Goodlatte (R-Virginia) called combining an opt-in clause with threats of individual and class-action lawsuits a "nightmare for legitimate businesses." Goodlatte suggests instead relying on criminal statutes to regulate spam.

That approach drew some support. Representative Robert C. Scott (D-Virginia) urged drawing a distinction between legitimate and illegitimate e-mail business communication. Legitimate business e-mail "has some First Amendment rights" that must not be infringed, Scott noted.

The numerous conflicts among legislators speaks to the "difficult balance of this kind of legislation," Representative Richard Burr (R-North Carolina) said at the close of the meeting. Burr is not on the subcommittee, but is one of the RID Spam bill's seven cosponsors.

"As technology gets better, our challenges get more abundant," Burr said. "I think this is an example of that."

Additional hearings on the several spam bills are pending, however. On Wednesday, two House subcommittees are sharing a hearing on spam legislation. Participants are the House Energy and Commerce Subcommittee on Commerce, Trade, and Consumer Protection, and the Subcommittee on Telecommunications and the Internet.