Senators Show No Taste for Spam

The U.S. Congress may pride itself on its hands-off-the-Internet approach, but when it comes to spam, few representatives can resist a chance to join the crusade against it.

Legislation to place controls on unsolicited commercial e-mail, better known as spam, was the subject of a subcommittee hearing on Thursday, and the bill appeared to gather momentum as witnesses testified largely in support of the latest version of the anti-spam bill.

The hearing before a subcommittee of the Senate Committee on Commerce, Science, and Transportation was the first open discussion of the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN SPAM) Act, which was introduced in March by Senator Conrad Burns, a Republican from Montana and chair of the subcommittee, and Senator Ron Wyden, a Democrat from Oregon.

A similar bill is making its way through the House of Representatives.

The Senate bill would outlaw several practices now used by spammers, including the use of false information in headers, return e-mail addresses that bounce back messages when a consumer tries to reply, and spam that continues even after a recipient has asked the spammer to stop.

These practices along with the rise in the volume of spam--according to the Congressional Management Foundation, half of the estimated 80 million pieces of e-mail Congress received last year was spam--have pushed Web users and Internet service providers over the top, members of the subcommittee said.

"We need to act because people are tired of this," Wyden said.

Both Wyden and Burns said they wanted to work quickly to iron out the final sticking points in the bill; however, Burns said that before any action could be taken, he wanted to hear from America Online and Yahoo, both of which declined an invitation to appear before the subcommittee.

"We want to work with you and move this thing out," Burns told representatives of the Federal Trade Commission, the Direct Marketing Association, the U.S. Internet Industry Association, and other witnesses who testified Thursday. "But before we can solve the problems we've got to have good representation from the giants of the industry."

Revisions to the Senate bill are unlikely to include a suggestion that individuals be given the right to bring federal lawsuits against spammers, based on the comments of the bill's sponsors.

Senator Jay Rockefeller, a Democrat from West Virginia, said he would support such a provision to give "everyday people who have to suffer through junk e-mail ... [a right] to seek redress."

Burns and Wyden's bill would leave enforcement of the bill's provisions to the FTC and would allow ISPs to sue spammers. It also would not pre-empt antispam laws on the state level that allow individuals to bring lawsuits against spammers.

A right of individuals to sue in federal court over spam was left out of the Senate bill because there is concern that allowing it could result in a flood of frivolous lawsuits. But Jason Catlett, president and chief executive officer of Junkbusters, said this hasn't happened under a law passed in 1991 prohibiting junk faxes. He said it was naive to think that ISPs would go to court on behalf of consumers, especially when many of them are barely holding on to their businesses and when it's so easy for them to pass the cost of spam on to their customers.

Wyden, however, said he found it hard to see a basis for a consumer to have a private right of action in federal court, adding "if we just go round and round we are not going to get anything done [on spam] in this Congress."

Catlett also complained that the bill doesn't include "opt-in" as the standard for unsolicited commercial e-mail. Such a standard would help ensure that consumers would be subject to spam only if they agreed to it.

"Billions of unwanted e-mail solicitations are sent each day, vexing hundreds of millions of people who feel unable to stop it," Catlett said. "What is needed to reverse this harm ... is a law establishing an opt-in standard for commercial e-mail."

The House bill, which is before the House Judiciary Committee, includes an individual's right to sue companies in federal court. The bill is co-sponsored by Representative Heather Wilson, a Republican from New Mexico, and Representative Gene Green, a Democrat from Texas. However, David McClure, president and chief executive officer of USIIA, said that bill is "crippled" and unlikely to pass because it gives too much power to ISPs in determining when they can reject e-mail from other ISPs.

A separate antispam bill has been introduced in the House by Representative Bob Goodlatte, a Republican from Virginia, who told the subcommittee on Thursday he is working with Wilson and Green to reconcile the two bills. Goodlatte said his bill was designed to give law enforcement officials and ISPs more tools to control abusers, and it is much more closely aligned with the Senate bill.

Eileen Harrington, director for marketing practices at the FTC, told the committee that the FTC "generally favors the underlying goals" of the Senate bill, but had some objections to some clauses. For example, the bill's definition of a commercial e-mail could supply a loophole to spammers that send only a URL, she said. The FTC is also concerned that the bill waters down the commission's authority to challenge deceptive practices.

Otherwise, Harrington said, the commission is "ready to go" on moving forward with implementation of the bill's provisions.