WASHINGTON, D.C. -- The federal government should enforce its new antispam law more strenuously, says a Senate committee leader, noting that the volume of spam has risen, not dropped, since the law took effect in January.
Senator John McCain, who chairs the Senate Commerce, Science, and Transportation Committee, questions why the Federal Trade Commission hasn't focused on companies promoting their products via spam. The FTC is charged with enforcing the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act.
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The FTC and federal law enforcement officials brought CAN-SPAM charges against two alleged spamming companies in late April. But McCain is urging the FTC and the FBI to step up enforcement efforts against spammers, notably child pornography spammers.
"If the FTC can't find the spammers, it should do the next best thing: Go after the businesses that knowingly hire spammers to promote their goods and services," said McCain (R-Arizona) at a Thursday hearing on the effectiveness of CAN-SPAM. "At a minimum the FTC could put thousands of businesses--many of them online pornography retailers--on notice that using anonymous spam is an illegal means of driving consumer traffic to their Web sites."
But bulk e-mailers trying to comply with the law are being punished by ISPs like America Online, says Ronald Scelson, president of MicroEvolutions.com, a bulk e-mail company. His company has stopped using common spamming techniques in order to comply with CAN-SPAM, but AOL and other ISPs are still blocking his company's e-mail, Scelson says.
Under the new rules, bulk e-mailers must use their own IP addresses instead of forging headers, and they must include their company names and postal addresses in the text of the e-mail.
Scelson told the committee he could go back to using forged headers and defeat most spam filters.
"Does the government want us to mail legal or not?" Scelson asked. "As long as we're doing it the right way and we're going to get blocked, interfered with, and shut down, people are going to go around it."
Differing on Methods
While senators called for more aggressive enforcement of CAN-SPAM, FTC and FBI representatives said they are working hard to combat spam. The FTC has more than 50 staffers working on CAN-SPAM enforcement, said FTC Chair Timothy Muris. The FTC is still working on some rules related to CAN-SPAM, and Muris promised the agency will deliver a plan for a national do-not-e-mail registry by CAN-SPAM's June 16 deadline. He noted that an FTC rule requiring labeling of sexually explicit e-mail took effect this week.
"We've already begun searching for enforcement targets," Muris said of that new rule.
Representatives of spam-filtering service Postini and the Consumers Union told the committee that unsolicited commercial e-mail continues to increase, even with the CAN-SPAM law. Postini, which processes about 1.3 billion e-mail messages weekly, has seen the percentage of spam in e-mail jump from 78 percent to 83 percent since CAN-SPAM took effect.
Still, CAN-SPAM was a positive step in fighting spam because it set the ground rules for what is acceptable behavior, said Shinya Akamine, Postini president and CEO. The increase in spam may have been higher without the CAN-SPAM law, he said.
"We think that it's a great law," Akamine said. "It prohibits illegal activity. Now we believe it's the role of the private sector to actually go out and secure [e-mail]."
Akamine and Hans Peter Brondmo, senior vice president of e-mail marketing vendor Digital Impact, disagree on technology solutions to block spam. Postini is blocking close to 99 percent of its customers' spam, Akamine said. But Brondmo said the only way to get rid of spam is to adopt sender-authentication protocols proposed by large ISPs, including Microsoft and AOL.
AOL Claims Success
The amount of spam e-mail hitting AOL subscribers' inboxes declined between 20 and 30 percent in the last year through a variety of spam-fighting initiatives, an AOL representative told the committee. CAN-SPAM helped AOL and other ISPs sue hundreds of spammers in early March, said Ted Leonsis, AOL vice chair and president of the AOL Core Service.
"You did a great service to the online medium and tens of millions of online consumers," Leonsis told the committee. "CAN-SPAM was the right bill at the right time for all the right reasons, and we look forward to measuring its success with more time."
While Leonsis and Scelson argued over whether AOL blocks Scelson's e-mail, James Guest, president of the Consumers Union, said the debate missed the point. Consumers don't want unsolicited commercial e-mail, he said.
CAN-SPAM requires all commercial e-mail to have a working opt-out mechanism and requires senders to include valid postal addresses. The law imposes a criminal penalty of up to a year in jail for sending commercial e-mail with false or misleading header information, and up to five years in prison for some common spamming practices, including hacking into someone else's computer to send spam.
But the law forces consumers to opt out of commercial e-mail, instead of requiring e-mailers to get opt-in permission, and Guest urged the committee to change the opt-out requirement. Spam can come from thousands of sources, and a consumer would have to send an opt-out request to each sender to cut off all spam, Guest said.
E-mail users should have the same protections as phone owners do under the national Do Not Call list, which the do-not-e-mail list proposal is modeled after, he said. "Obviously, this is an absurd burden to place on people," he added. "Congress should put the burden on spammers to get permission, not on consumers to fend off the intrusion."
