With California's anti-spam bill looming, e-mail marketers breathed a sigh of relief that federal spam legislation is expected to override it.
The congressional logjam broke Friday after negotiations between leaders of the House of Representatives and the Senate. The House shelved its competing spam bills in favor of a modified version of the CAN-SPAM Act of 2003, which the Senate had unanimously passed Oct. 22.
On Saturday morning, after an all-night session, the House voted 392-5 to pass the slightly amended version of CAN-SPAM. The Senate is expected to vote on the amended bill in a few days; President Bush has indicated he will sign it into law.
Marketers roundly praised the bill, particularly its pre-emption of more onerous anti-spam legislation in more than 35 states. California's toughened spam law, known as SB 186, was to take effect Jan. 1.
“We're really, really happy that SB 186 will not see the light of day,” said Al DiGuido, chief executive of e-mail service provider Bigfoot Interactive, New York. “This legislation will put an end to all the chaos and the nightmare of states having their own view” of spam.
E-mail marketers feared an avalanche of lawsuits under the California spam law's provision for private lawsuits. Under the federal law, consumers cannot sue.
E-mail list providers also breathed a sigh of relief, getting out from under the California law's wording that seemed to ban e-mail prospecting.
“We're still not entirely out of the woods yet, but it looks like we're getting there,” said Michael Mayor, chief executive of New York e-mail list rental company NetCreations.
The federal bill does not ban unsolicited commercial e-mail. Instead, it requires that marketers include a physical address and valid opt-out mechanism in messages along with notice that the messages are ads, plus an honest subject line.
Michael Della Penna, Bigfoot Interactive's chief marketing officer, said those new requirements would not appreciably raise the costs of e-mail marketing.
“I think the legitimate guys are already doing a lot of the best practices,” he said.
The one bugaboo for marketers is the CAN-SPAM Act's call for the Federal Trade Commission to plan a do-not-e-mail registry. But the bill does not require the FTC to implement a list, only to report back in six months on the feasibility of a list and a timetable for implementing it. FTC chairman Timothy Muris has questioned whether such a list would do much to combat spam.
Details of the do-not-e-mail registry remain left to be worked out by the FTC.
“It's pretty well established that it can be done in a secure, reliable fashion,” said Ray Everett-Church, co-founder of the Coalition Against Unsolicited Commercial E-mail.
Opponents of the registry say it would do nothing to combat spam while saddling legitimate e-mail marketers with more regulations.
“It's not a workable idea,” Mayor said. “I think it's just going to backfire on the government.”
FTC representatives were unavailable for comment.
Despite its call for the registry, the CAN-SPAM Act disappointed anti-spam activists, who accuse the marketing industry of protecting their own interests at the expense of consumers'.
“This legalizes the sending of unsolicited commercial e-mail,” Everett-Church said. “It will not ultimately stop consumers from receiving unwanted, unsolicited messages.”
The legislation forbids sending spam with false header information or using other means to disguise the sender's identity. The bill bans harvesting of e-mail addresses from Web sites and breaking into computers to send spam. It also forbids using automated methods to sign up for free Web-based e-mail accounts. It includes provisions for Internet service providers to take spammers to court and gives state attorneys general the power to file lawsuits. Violators are subject to awards up to $2 million, potentially tripled for intentional violations, and five years in prison.
“My guess is the number of people willing to risk that amount of fines and jail time is not many,” said William Nussey, chief executive of Atlanta e-mail service provider Silverpop.
Microsoft and AOL released statements supporting the legislation, particularly the penalties against fraudulent spam. Microsoft chairman Bill Gates called the bill “a milestone in the battle against spam.”