New House Spam Bill Introduced

A new spam-related bill was announced by two members of the House of Representatives yesterday, ostensibly in answer to consumer advocates' calls for tougher legislation.

“Our bill eliminates loopholes that allow spammers to evade federal requirements and deceive consumers,” co-sponsor Gene Green, D-TX, said in a statement.

However, though a draft of the bill obtained Tuesday by DM News contains enforcement provisions that include jail time for repeat offenders, it seems to contain little that would appease consumer advocates' criticisms of other bills pending in Congress and, likewise, little for business groups to oppose.

Dubbed the Anti-Spam Act of 2003, the bill was co-sponsored by Rep. Heather Wilson, R-NM. Wilson and Green now have introduced spam legislation for three consecutive years.

The current bill joins one introduced last month by Reps. W.J. “Billy” Tauzin, R-LA, and F. James Sensenbrenner Jr., R-WI, which anti-spammers and consumer groups criticized as too weak.

Similar to the Tauzin-Sensenbrenner Reduction in Distribution of Spam or RID Spam Act, the Anti-Spam Act of 2003 is opt-out based, meaning it does not outlaw initially sending commercial e-mail without recipients' permission.

Anti-spammers and consumer advocates have been calling for opt-in-based legislation so far to no avail in either the House or Senate. They claim that companies can send a lot of spam before people are able to opt out of future e-mail blasts.

The Direct Marketing Association supports opt-out-based spam legislation, claiming that advertising is often about making people aware of new ideas, a concept that by definition requires some unsolicited contact.

In another area of contention, the Wilson-Green bill lacks a provision that would let individuals sue suspected spammers. Anti-spammers and consumer advocates contend that giving individuals the right to sue is crucial for any anti-spam legislation to work. Business groups maintain that such a provision would invite frivolous and class-action lawsuits.

The Wilson-Green bill does allow Internet service providers, state attorneys general and the Federal Trade Commission to bring action against spammers, however. It also provides for criminal penalties of up to two years in prison and $250,000 for continuous violators.

The only federal bill pending that would let individuals sue suspected spammers is in the Senate. New York Democrat Charles Schumer's Stop Pornography and Abusive Marketing Act would let individuals sue spammers for up to $1,000 for each message they receive in violation.

Schumer's bill also would establish a federal do-not-e-mail list, to which the DMA is adamantly opposed. The DMA claims a do-not-e-mail registry would not work because the “fraudulent few” who are responsible for 90 percent of spam wouldn't use it. As a result, the DMA maintains, legitimate marketers' reputations would be damaged among consumers who sign up for the registry but continue to get spam.

Schumer's bill, which has gained grassroots support lately, competes in the Senate with legislation introduced by Conrad Burns, R-MT, and Ron Wyden, D-OR, called the Controlling the Assault of Non-Solicited Pornography and Marketing or CAN-SPAM Act. It is scheduled to go into mark-up today.

Meanwhile, provisions in the Wilson-Green bill that would affect marketers include a requirement that all commercial e-mail, as opposed to just unsolicited commercial e-mail, be labeled as such. The DMA opposes requiring “ADV:” in commercial e-mails' subject lines.

The Wilson-Green bill would leave it up to the FTC, however, to determine how labeling would be applied. The bill also would require all pornographic e-mail to be labeled.

Similar to other bills pending in the House and Senate, the Wilson-Green bill would ban the use of forged headers and return addresses, tactics spammers commonly use to disguise the sources of their blasts. The bill also would ban harvesting e-mail addresses.

It also would require that all commercial e-mail include clear notice of an option to opt out of future communications, an e-mail address through which to do it, and the physical street address of the sender.

Moreover, it would require companies to honor opt-out requests starting 10 days after the request was made and lasting for five years, though it contains an exemption for companies' whose opt-out addresses are temporarily malfunctioning. Anti-spammers and consumer advocates have criticized similar exemptions in other bills, maintaining they give spammers an unacceptable loophole by letting them claim their inboxes are full.

The Wilson-Green bill has the support of Rep. John Dingell, D-MI, the senior Democrat on the Energy and Commerce Committee, who in the past has combined with Tauzin on key telecommunications legislation, the Washington Post reported. Dingell is in “friendly” discussions with Tauzin about the bills' differences, the Post reported.

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