The Senate's unanimous passage of anti-spam legislation last week offers mixed blessings for e-mail marketers, raising the specter of a do-not-spam registry but also creating a national legal framework for direct marketers to comply with.
Thanks to an aggressive push by Sen. Charles Schumer, D-NY, the CAN-SPAM Act of 2003 calls for the creation of the do-not-spam registry, meant to operate similarly to the national no-call registry. The Federal Trade Commission is required to submit a plan for creating a registry in six months, with implementation as soon as nine months after the law is enacted.
For now, however, the technical details of the registry are up in the air. Legitimate e-mail marketers probably would need to compare their mailing lists to the registry, eliminating addresses found on the list, while spammers would need to be denied access. The bill does not specify whether registration would be by individual e-mail address or on a domain-wide level or how to deal with reassigned e-mail addresses.
“That's a huge logistical nightmare,” said Al DiGuido, CEO of e-mail marketing firm Bigfoot Interactive, New York.
But before anything gets done, the House of Representatives would need to pass similar legislation, with differences between the two bills ironed out in conference, before it reaches the president's desk. The House has three bills under consideration.
The Direct Marketing Association said the registry would do little to combat spam because the FTC would have little hope of finding spammers.
“The do-not-e-mail [provision] is trouble for legitimate marketers, and it won't give consumers any benefit,” DMA spokesman Louis Mastria said. “The only person who wins is the spammer.”
Even the FTC is reticent about the feasibility of a do-not-spam registry. In August, FTC chairman Timothy Muris said he doubted the usefulness of a no-spam list by noting that, unlike the established telemarketing industry, spammers usually operate in the shadows.
“If it were established, my advice to consumers would be: Don't waste the time and effort to sign up,” he said at the time.
In a statement, Schumer brushed off such reticence, noting that the FTC admitted creating a secure registry is “technologically feasible.” He also trumpeted survey data showing that 75 percent of consumers want such a list.
“The vast majority of Americans want a do-not-spam registry, and today the Senate is granting them their wish,” he said.
Trevor Hughes, executive director of the Network Advertising Initiative's E-mail Service Provider Coalition, said he doubted the registry would ever be put into force.
“If we look at what the FTC has said to date, it has been very pessimistic of the possibility of a do-not-e-mail list,” he said. “We are hopeful the FTC will remain consistent with their public position and report back to Congress that this is not a good idea.”
Despite the provision for a no-spam list, e-mail marketers were pleased that the bill would give them a single framework for the rules without imposing harsh regulations. Among the new requirements are that commercial e-mail contain a sender's physical address, an honest subject line and working opt-out mechanism. All commercial e-mail must indicate clearly that it is advertising.
“So far, we're playing a wait-and-see game,” said Alan Osetek, a managing director at Carat Interactive, Boston. “Nothing that's been done to date has affected us.”
The Senate bill carries criminal penalties for sending spam with false header information or using other means to disguise the sender's identity. It also bans harvesting of e-mail addresses from Web sites.
If signed into law, the CAN-SPAM Act would override a hodgepodge of 35 state laws regulating commercial e-mail, including the much-criticized California anti-spam law set to take effect Jan. 1. E-mail marketers complained that law would open them to a flurry of civil litigation.
The Senate bill does not include the right of consumers to sue over spam. Instead, it empowers Internet service providers and state attorneys general to pursue litigation. Criminal provisions of the bill carry penalties of up to five years in prison.
The DMA said it supported the anti-spam bill, warts and all.
“We still support the bill, having at the end of the day a single national standard,” Mastria said. “We're willing to take a bitter pill here with the do-not-e-mail thing.”
Hughes, who lobbied Congress to pass anti-spam legislation, predicted a national law would be enacted by the end of the year.
“This is a clear indication that we are on the road to having federal spam legislation this year,” he said.
