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House Passes Anti-Spam Bill; Senate May Vote Today

The House of Representatives voted to pass anti-spam legislation on Saturday, paving the way for the enactment of a federal law that preempts California’s anti-spam legislation.

A late compromise between lawmakers in the House of Representatives and Senate led to a 392-5 vote in the House early Saturday morning. Sponsors of competing House bills and the authors of the Senate anti-spam bill reached the agreement Friday afternoon. The Senate could pass the amended bill as early as today. President Bush is expected to sign it into law.

The House bill is a modified version of the CAN-SPAM Act of 2003, which the Senate unanimously passed on Oct. 22. It sets an opt-out standard, allowing businesses to send unsolicited commercial e-mail until consumers ask them to stop. The industry favors this approach against stiffer opt-in standards pushed for by consumer-advocacy groups.

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 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 five-year prison terms and awards up to $2 million, potentially tripled for intentional violations.

Commercial e-mailers face new requirements, such as including in their e-mail a physical address, an honest subject line, a working opt-out mechanism, and notice that messages are advertisements. Any e-mail containing sexually explicit content must be labeled. The FTC is required to report back to Congress in 120 days with a mark to identify such e-mail.

If passed, the legislation would achieve one of the e-mail marketing industry's chief goals: a national law to override the 37 state codes on the books. The urgency for federal legislation was heightened by the specter of California’s anti-spam law due to take effect Jan. 1. The California law banned all unsolicited commercial e-mail and gave consumers the ability to sue. An amendment to the House bill allows for it to go into effect on Jan. 1, heading off the California law.

E-mail marketers have complained that the California code would leave them open to an avalanche of frivolous lawsuits, due to its overly broad definitions and right of private action. The House and Senate bills do not allow consumers to sue over spam.

“We are very pleased to see a federal anti-spam bill that harmonizes state efforts,” said Trevor Hughes, the executive director of the Network Advertising Initiative’s E-mail Service Provider Coalition.

The compromise bill retained the call for a do-not-spam registry sponsored by Sen. Charles Schumer, D-NY. The registry, a late amendment to the CAN-SPAM Act, would allow consumers to register their e-mail addresses if they do not wish to receive unsolicited e-mail pitches. The CAN-SPAM Act called for the FTC to submit a study that assesses the cost and feasibility of such a list. FTC officials have publicly doubted the usefulness of a do-not-spam registry, citing technological hurdles and the fact that spammers operate from the shadows. The FTC must report back to Congress in six months with a plan and timetable for a registry.

Lawmakers predicted the registry would come into existence in the not-too-distant future.

“Very soon, a do-not-spam registry will be available,” said Rep. Billy Tauzin, R-LA, on Friday afternoon.

Consumer-advocacy groups were unhappy with the legislation, particularly since it trumps the California law that would have been the toughest in the nation.

“The real damage that will be done is consumers are likely to receive more unsolicited commercial e-mail, not less,” said Ray Everett-Church, co-founder of the Coalition Against Unsolicited Commercial E-mail.

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