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Kevin Smith

US Policymakers Attempt to Climb Mountain of Spam (Part 1)

3 April 2001

Agreements are sometimes hard to come by in Washington D.C.

The U.S. capital has long been a forum for Democrats and Republicans to debate and argue their differences in policy.

Sometimes compromises are reached and laws are passed, but you don't often see members from both sides of the aisle positioning themselves to be the first to pass bills related to similar issues.

Hot-button issues have a tendency to see bipartisan efforts on Capitol Hill and one of the hottest of the hot right now is the effort to curb unsolicited commercial e-mail, or "spam." Democrats and Republicans are both looking to get a spam law passed.

In the short time that Congress has been in session for 2001 nearly a half dozen measures that address spam have either been introduced or circulated through committees. The bills all come on the heels of a bill introduced last year that passed through the House with every representative voting for it except for one. The bill was later killed in the Senate where it failed to be brought up for vote.

Spam experts predict that each chamber will merge most of its spam-related bills into one piece of legislation. That has already been done in the House with two spam-related bills being combined into one.

Privacy advocates are thrilled to see the issue being addressed in Congress but some feel the real problem is still being overlooked. To date no bill has been introduced in either chamber that calls to end spam with an "opt-in" clause, instead they allow recipients to "opt-out" of spam that comes to their inbox.

Anthony Phipps, spokesperson for Choose, a leading anti-spam e-mail marketing company, feels that an opt-in plan is the only way to let consumers control what kind of e-mail they get, but his firm is willing to compromise.

"We have always supported opt-in," he said. "It seems to be more in tune with what is going on in Europe. We think it is important for the consumer to control what comes into their e-mail box instead of the marketer. At the same time, we will support a bill that provides any tool in which people can protect themselves."

Ray Everett-Church, a San Jose-based attorney and anti-spam expert, feels the consumers who spend money dialing up their Internet only to get spam messages sitting in their inbox, are being left out of legislation.

"It really doesn’t do much at all to help those who bear the cost of receiving unsolicited e-mails to recover those costs," he said. "The ultimate problem with spam is that it cost more to recipients than it does to senders. It's not like telemarketing calls or postal advertisements where you have to lick the stamp or pay a phone bill."

The lone bill that has been introduced in the Senate, the CAN-SPAM Act, proposes an opt-out system and falls short of allowing class action suits to be filed.

The bill grants individuals a private right of action and has provisions for ISPs to take action when spam cripples their system. Even then, individuals and ISPs are forced to bring the action through a State’s Attorney. Phipps predicts that for the bill to be passed, those provisions will have to be changed.

The bill would make it illegal for a company to continue to send spam to a user after the user has sent a request to be taken off the company’s mailing list. This of course would be done after a person has received the initial message.

An opt-in law would be set which would allow commercial e-mail to be sent only to users who request such promotions or solicitations. Users could contact the company, either through the web or other means, to be added to their mailing list.

While the bill may need some tweaking before anti-spam advocates will give it their full support, Phipps admits that it's a good sign considering who introduced the bill.

Montana Senator Conrad Burns and Oregon Senator Ron Wyden introduced the bill while Sen. Joseph Lieberman (D-Conn.) also sponsored it. Burns is the chairman of the Senate Communications Subcommittee that oversees many Internet issues. In the past the committee has shied away from anti-spam bills. Phipps believes that the move is more political than anything else.

"They (the committee) see another bill coming their way," he said. "They want to make sure that any bill that comes out is as friendly as possible to the marketing industry."

Everett-Church admits that a bill needs to be passed, but passing a bill for political sake may not be the right answer.

"Throwing this into the market is a great solution," he said. "But the flip side is that there has to be some teeth there so that the market can work. The market is broken down when it comes to spam. When an ISP's costs are governed not by their own service needs but by the advertising plans of others you have economic instability."

The committee may be a little late in jumping on the spam bandwagon. Last year's bill only had one vote against it. That vote came for a Libertarian from Texas who Phipps said is a bird of a different feather.

"He just in general doesn’t like laws," he said.

Late in the game or not, the degree of seriousness to which the legislature chooses to face anti-spam legislation will dictate how effective it can be.

"At this point in time it is looking like most of the bills solve a portion of the problem," Everett-Church said. "In particularly in the case of the House Bill, it could make some aspects of it a lot worse than the status quo. The fundamental problem with any of these bills is that it presumes that e-mail will be like telemarketing or postal mail that you can opt-out from, but it doesn’t seem to consider that there are costs associated even with just the first spam in which you opt-out from."

As far as Everett-Church is concerned until that thinking is changed, any legislation passed will do little to solve the real problem.

"As long as bills approach spam from an opt-out perspective then we are going to see increased cost for consumers and damaged business to service providers," he said. "There is substantial resistance in Congress to treating e-mail in an opt-in fashion."

Continue to Part 2.

US Policymakers Attempt to Climb Mountain of Spam (Part 1) is republished from
Kevin Smith
Kevin Smith