Momentum is building on Capitol Hill for anti-spam legislation.
Industry executives, privacy advocates and consumer groups testified last week before a Senate Commerce, Science and Transportation subcommittee, largely in favor of Senate bill S. 630, “Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2001,” commonly referred to as the “Can Spam Act of 2001.”
The bill, introduced in late March by Sens. Conrad Burns, R-MT, and Ron Wyden, D-OR, would give the Federal Trade Commission the power to impose civil fines on spammers and grant state attorneys general the ability to prosecute e-mail marketers that violate the bill on behalf of the citizens of their states. It also requires that marketers provide a valid return address in all e-mail correspondence so consumers can opt out of further correspondence from the company if they wish.
“For many people, spam is ruining their online experience and their ability to use e-mail,” Burns said. “It's high time Congress act to protect consumers from overzealous marketers.”
Burns and Wyden said they want to expedite the process of passing the Can Spam Act through the committee, but they want to hear from representatives of AOL Time Warner and Yahoo Inc. before that happens. Both companies declined to appear before the committee.
The vast majority of the mainstream marketing community agrees that spam needs to be controlled, yet no one seems able to agree on how that should happen. Though many industry executives think consumers should have more choice over how and when their data are used and distributed over the Internet and that they should not be subject to unwanted solicitations, those same executives are wary of calling for outright government intervention.
One point of contention in the bill is the opt-out provision. Marketers have no problem with requiring the industry to offer opt-out provisions for consumers. But privacy advocates, such as Junkbusters Corp. president/CEO Jason Catlett, prefer opt-in provisions. Junkbusters offers consumers services that help them stop unwanted direct mail, telephone solicitations and e-mail.
If opt out is required, privacy advocates say, that leaves the door open for unscrupulous marketers to spam consumers until they are told to stop. However, with opt in, the consumer is in control from the beginning.
Catlett told the subcommittee that e-mail marketing offers numerous advantages over other forms of marketing, but only if “conducted in a fair and consensual manner.”
“Almost no reputable marketer routinely sends e-mail on an opt-out basis,” he said. “Opt in is the right policy for marketing by e-mail and is consistent with successful legislation on marketing by fax.”
He equated an opt-out policy to offering a spammer one free message and said it would be like giving a shoplifter permission to steal until a storeowner tells him to stop.
“The opt-out model is simply inappropriate and unsustainable for the Internet,” Catlett said. “If opt-out spam were to prevail, e-mail, the killer application of the Internet, would become the application that killed the Internet.”
David Moore, CEO of ad targeting network and online marketing services provider 24/7 Media Inc., testified that he supports any bill that addresses the public's demand for a “reasonably predictable, efficient and economical online experience.” He said that he supports the legislation as proposed but conceded that it is a first step in consumer protection initiatives.
“This bill represents a responsible, common sense approach to establishing standards for commercial e-mail practices and is an important first step in helping to protect consumers and legitimate marketers from the abuses of spammers,” he said.
Moore said the bill “appropriately” focuses on spam abuses.
“From 24/7 Media's point of view, the Burns-Wyden bill appropriately focuses on e-mail abuse,” he said. “These spammers devalue our own efforts and weaken the consumer confidence that is so important for all online businesses to succeed and flourish.”
Also offering unequivocal support for the legislation was David McClure, president/CEO of the U.S. Internet Industry Association, a trade association representing individuals and businesses doing business on the Internet. McClure testified that Internet service providers should be able to charge marketers for sending bulk e-mail. ISPs are a large portion of the USIIA's membership.
“Marketers who want to send their messages through an ISP's servers should pay for the privilege,” he said. “And frankly, once e-mail is no longer free and easy to send, its volume will decrease substantially.”
McClure called S. 630 a “very good piece of legislation” that would reduce spam and resolve outstanding legal issues.
“We should have laws that force mailers to identify themselves, using real e-mail addresses, real header information and real contact information, whenever they send a solicitation,” he said. “Opt out should be simple, pervasive and permanent.”
However, not everyone is enthusiastic about the government's action and the Can Spam Act in particular.
In a letter to the subcommittee dated April 26 that is signed by executives of five consumer interest groups, the executives urged Congress to pass spam legislation, but not this bill.
“Because consumers incur costs to receive UCE [unsolicited commercial e-mail], the correct policy is to prohibit UCE, just as Congress prohibited junk faxes in the Telephone Consumer Protection act of 1991,” the letter stated. “An opt-out policy…will not significantly reduce the widespread damage to consumers' interests and confidence.”
The letter was signed by Gary Ruskin, executive director of Commercial Alert; Ken McEldowney, executive director of Consumer Action; Jean Ann Fox, director of consumer protection for the Consumer Federation of America; Beth Givens, director of the Privacy Rights Clearing House; and Catlett of Junkbusters.
Also taking the legislation to task was the Coalition Against Unsolicited Commercial Email, which in a letter opposed the bill. CAUCE said it commends the senators for their work on S. 630 but that it cannot support the legislation in its present form.
“While we believe the language of the bill is salvageable, we fear that in its present form, S. 630 would result in giving a cloak of legitimacy and legality to a practice that, at its core, is founded upon theft, trespass and invasion of consumers' privacy,” the letter read.
The organization stressed that commercial e-mail should be sent only on an opt-in basis and said it opposed the legislation because it “is pure opt out.” It also opposes the bill's giving only the FTC, state attorneys general and ISPs enforcement rights over spam.
