Anti-Spam Legislation Could Pass 107th Congress

Could this be the year that Congress passes anti-spam legislation? A number of industry observers think it could.

Two pieces of legislation taken up last year late in the 106th Congress dealt with unsolicited commercial e-mail, or spam. The first, H.R. 3113, the Unsolicited Commercial Electronic Mail Act of 2000, was originally introduced in October 1999 and sponsored by Rep. Heather Wilson, R-NM. The bill was referred to the Senate in July last year with bipartisan support from Rep. Gene Green, D-TX.

The second, H.R. 5300, the Wireless Telephone Spam Protection Act, was sponsored by Rep. Rush Holt, D-NJ, in September last year. The bill was referred in October to the House Subcommittee on Telecommunications, Trade and Consumer Protection.

Because these bills were introduced late in the session and during an election year, they languished in their committees. However, industry observers believe at least one of the bills, the Unsolicited Commercial Electronic Mail Act, has a good chance of passing this year and may even become law.

“The general anti-spam bill picks up where the spam discussion left off last year,” said Ray Everett-Church, an online privacy consultant and co-founder of the Coalition Against Unsolicited Commercial Email. “It didn't pass for lack of support. It just bogged down at the end of the session.”

The legislation would forbid the use of e-mail forgery methods to disguise the origin for messages, require clear opt-out provisions and mandate compliance with Internet service providers' anti-spam policies. It also would mandate that unsolicited e-mail messages be clearly labeled as unsolicited.

However, all this protection would come at a price. Since the legislation would give consumers the right to file a complaint with the Federal Trade Commission, the Congressional Budget Office estimates that implementing these protections would cost the federal government about $13 million in 2001 and about $60 million over the next four years. The CBO said the cost could decrease over time if the legislation is effective and actually discourages spam.

“For those violators who continue to send unlawful [spam] after they have been notified of violations, H.R. 3113 requires that the FTC send a complaint by certified mail,” the CBO said in a report to Congress. “[We estimate] that the cost of sending these formal complaints would be $2 million a year.”

John Kamp, a Washington lobbyist for the Internet Advertising Bureau and its sister organization, the Wireless Ad Association, said he believes H.R. 3113 “is a good bill” and that it will pass this session.

“It's based on the notion that if you send commercial e-mail, you should tell everyone who you are,” he said. “Pushing advertising on people who don't want it doesn't work.”

While there is general agreement that H.R. 3113 can pass and be implemented successfully, that is not the case with the Wireless Telephone Spam Protection Act, which many in the industry say is not needed at this point in the development of wireless communications in the United States. Plus, many feel the legislation as written would ban more than just spam.

The legislation, actually an amendment to the Communications Act of 1934, seeks to “prohibit the use of text, graphic, or image messaging systems of wireless telephone systems to transmit unsolicited commercial messages.”

As worded, critics say, the legislation not only would make spam illegal, but also would prevent the transmission of legitimate marketing messages. They say a much more effective tactic would be to build anti-spam protections into the burgeoning wireless infrastructure.

“Wireless spam is not nearly the problem it is in the wired world,” said Everett-Church. “I have my doubts if the bill is necessary at this time because the ad infrastructure just isn't there yet.”

He did say, however, that it is encouraging that Congress is taking a pro-active stance.

Kamp said he does not believe H.R. 5300 is needed now because the wireless infrastructure in the United States is not nearly as widespread as the Internet is.

“We're not using wireless very much yet,” he said. “Let's wait and see how much it's used before we ban it. Unsolicited e-mail on telephones shouldn't be allowed, but I don't think we want to ban all commercial messages on phones.”

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