New York Includes Pop-Ups in Anti-Spam Measure

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While federal lawmakers wrestle with how to stem unsolicited bulk commercial e-mail, New York has lumped pop-up ads into a legislative package aimed at spam, leaving industry experts scratching their heads.


The New York Senate vowed Tuesday to pass a legislative package that includes setting up a do-not-spam registry similar to do-not-call registries aimed at limiting telemarketing calls.


It also contains a bill aimed at limiting deceptive spam by banning the use of third parties' domain names or the e-mail addresses without their permission, a tactic spammers use to mask the source of their blasts.


Moreover, the package includes S. 5155, sponsored by Republican state Sen. Joseph Robach, which would outlaw spam to New York's residents' wireless devices and require advertising e-mails to include an unsubscribe option and for marketers to honor unsubscribe requests. It also would require pornographic spam to include "ADV;ADLT" labeling in its subject line.


"This is the most comprehensive package of anti-spam legislation that has been introduced in any state in the nation," Senate majority leader Joseph Bruno said in a statement.


Perhaps most troubling to some online marketers, though, is that Robach's bill also would require that Web sites "which host pop up ads (ads which open a separate window on your computer) must contain a process to disable the pop up ads on that site."


It is thought that New York would be the first state to legislate against pop-up ads.


However, even some industry experts who favor strong anti-spam legislation see no need for an anti-pop-up law. For one thing, many online publishers have taken it upon themselves to limit their use of pop-ups.


And those that use them do so because pop-ups -- when used responsibly, say, by capping their frequency at one per user per day -- have shown to be up to 10 times as effective at driving response and conversion as other online ads.


Also, many would say the online publishing business is currently tough enough without lawmakers restricting one of their proven revenue streams.


"The question of whether surfers will tolerate pop-up ads, and to what extent they will tolerate pop-up ads in exchange for free content is, at least in my personal view, one that ought to be left between the site and the surfer," said David Kramer, a partner with high-tech law firm Wilson Sonsini Goodrich & Rosati, Palo Alto, CA.


Kramer gave expert testimony at the Federal Trade Commission's recent three-day spam forum. He advocates a federal anti-spam law modeled on existing junk fax legislation.


But pop-ups, while annoying, are not comparable to spam, he said.


"If the surfers don't like the ads, they won't go to the site," Kramer said. "Pop-up ads support the medium in which they appear. They make it cheaper or free to surf and get content that I'm looking for. Spam does just the opposite."


Robach's press secretary, Jeff McCann, conceded that anti-pop-up legislation would bring jurisdictional challenges.


"I think there might be some difficulties enforcing it on sites in remote locations," he said. "But if this legislation helps reduce some of the [pop-ups and spam], we would consider it a success."


Another issue is that software derisively called scumware often is installed on computers without users' knowledge that serves pop-ups and pop-unders on publishers' Web pages without their knowledge or consent.


Meanwhile, a widely anticipated federal anti-spam bill that was to be introduced in the House of Representatives has been delayed after being criticized by consumer advocates and state prosecutors as too weak. The bill, sponsored by Reps. W.J. "Billy" Tauzin, R-LA, and F. James Sensenbrenner Jr., R-WI, is reportedly being revised.


Marketers want federal spam legislation to supersede state legislation, and to focus on the 150 to 200 "bad actors," as the Direct Marketing Association refers to them, that conceal their identities and do not honor opt-out requests.


Anti-spammers and consumer advocates want federal legislation that does not supersede state laws, which they say are one of the few things keeping marketers from choking the Internet. They also want a law giving individuals the right to sue spammers. Marketing interests maintain that giving individuals the right to sue would bring too many nuisance lawsuits.


Tauzin's press secretary said yesterday that spam legislation could be introduced into the House any day, but declined to say whether the bill is being revised to include giving individuals the right to sue.


The Senate is also working on spam legislation. Sens. Conrad Burns, R-MT, and Ron Wyden, D-OR, introduced the CAN-SPAM Act of 2003 in April, which DMA president/CEO H. Robert Wientzen has said his association backs.


Anti-spammers and state prosecutors don't support CAN-SPAM, saying it would be too weak and would supersede stronger state laws.


The Senate Committee on Commerce, Science and Transportation held hearings yesterday during which Federal Trade Commissioners Mozelle Thompson and Orson Swindle said the solution to spam will require a combination of technological, legal and consumer action.


And back on the state level, the Boston Globe last week reported that Massachusetts legislators are rallying behind a bill that would let the state, Internet service providers and consumers sue for each unsolicited commercial e-mail that does not include "ADV:" labeling -- or "ADV:ADLT" in the case of pornography -- in its subject line. That bill, sponsored by state Attorney General Thomas F. Reilly, is expected to get the backing of the state Senate's Science and Technology Committee next month.


About 30 states have spam-related laws on their books.


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