The House of Representatives gave final consent yesterday to the CAN-SPAM Act of 2003. The bill was approved without debate and now goes to President Bush for his signature.
The bill was approved by a voice vote in the Senate just before Thanksgiving but needed to return to the House because of minor changes. The House had voted 392-5 last month in favor of the bill. The president has indicated that he will sign the measure into law.
The act creates a single national standard regulating commercial e-mail to replace the patchwork of laws in more than 35 states. It bans common spamming practices such as using false headers and harvesting e-mail addresses. It also holds advertisers responsible for fraudulent spam sent marketing their products.
The direct marketing industry pushed for the legislation, particularly after California enacted a spam law that would ban commercial e-mail and let consumers sue for damages. The act, which does not allow consumer lawsuits, will wipe away state anti-spam laws Jan. 1, when California's law was set to take effect.
“We are very pleased to see a harmonized federal standard emerge,” said Trevor Hughes, executive director of the Network Advertising Initiative's E-mail Service Provider Coalition. “While we don't see legislation as a complete solution, it is clearly a component of the solution.”
CAN-SPAM does not ban unsolicited commercial e-mail. Instead, it requires that marketers remove customers from their lists when requested. Critics of the bill claim the opt-out approach is tantamount to legalizing spam.
“We're still looking at a bill that doesn't outlaw spam; it only outlaws fraud in spam,” said Ray Everett-Church, co-founder of the Coalition Against Unsolicited Commercial E-mail. “That's going to leave consumers asking what the bill does. The answer is, very little.”
The bill entrusts most of its enforcement to the Federal Trade Commission and state attorneys general. Internet service providers also can bring lawsuits. Violators are subject to awards up to $2 million, potentially tripled for intentional violations, and five years in prison.
AOL praised the bill for its tough enforcement provisions and vowed to take action against “spam kingpins.” “If you send junk e-mail using outlaw tactics to AOL's members, we will work with law enforcement to bring the harshest penalties possible — including fines and even jail time,” the company said in a statement.
The act also calls for a do-not-e-mail registry modeled after the no-call list, which has caused some concern in the e-mail marketing industry. The Direct Marketing Association has questioned whether such a list is practical, noting that FTC chairman Timothy Muris has said such a list is unlikely to do much to combat spammers.
The federal bill leaves details of the registry to the FTC's discretion. The bill requires the agency to devise a plan to implement a do-not-e-mail list, along with a timetable, in six months. The FTC is expected to detail its objections to maintaining the list, including concerns over security, privacy and technical feasibility.