The chorus of opposition to proposed anti-spam legislation continues to grow, as business leaders went to Capitol Hill earlier this month to express displeasure regarding a major bill as it is currently written.
In testimony before the House Judiciary Committee, the witnesses criticized H.R. 718, the Unsolicited Commercial Electronic Mail Act of 2001. Reps. Heather Wilson, R-NM, and Gene Green, D-TX, introduced the legislation in the 106th Congress. However, it was introduced late in the session and languished in committee. The bill in March made it out of the House Energy and Commerce Committee and will move to the floor of the House of Representatives for a vote by the full body.
H.R. 718 would require those sending unsolicited commercial e-mail to provide a valid return e-mail address so recipients could opt out of further mailings. The Federal Trade Commission would be charged with policing e-mail and have the authority to bring legal action against violators. It also would allow Internet service providers to sue spammers in federal court for $500 per message, up to $50,000.
The legislation would also enable individuals to sue spammers to block unsolicited e-mail, require spam to be clearly labeled as unsolicited and force ISPs to let their customers opt out of spam if the ISP profits from allowing it on its servers.
H.R. 718 was referred to the Judiciary Committee because it includes several legal provisions, including the right of individuals to sue spammers. The committee can amend the bill before sending it to the full House, but cannot kill or pass it.
Testifying before the committee were Rick Lane, director of e-commerce and Internet technology for the U.S. Chamber of Commerce; Marc Lackritz, president of the Securities Industry Association; Paul Misener, vice president of global policy for Amazon.com; and Wayne Crews of the Cato Institute.
There was unanimous agreement among those testifying that the bill is too broadly worded and gives too much legal power to Internet service providers. They also noted that the legislation gives more power to states than the federal government, which could spark 50 or more laws governing spam.
“We believe that initial legislation regulating the use of commercial e-mail must be narrowly targeted to focus on the clear abuses without interfering with the development of legitimate uses of electronic mail for marketing purposes,” Lane said.
He said that there is a growing public sentiment that much e-mail communication from legitimate businesses is spam.
“Therefore, the primary focus of legislation regarding commercial e-mail should center around combating the sending of fraudulent and deceptive e-mail,” Lane said.
The business leaders testified that H.R. 1017, the Anti-Spamming Act of 2001, introduced in March by Reps. Bob Goodlatte, R-VA; Lamar Smith, R-TX; and Rick Boucher, D-VA, is more narrowly targeted and would be more favorable than H.R. 718.
They called for legislation that would reduce misleading or fraudulent e-mail. They also asked that any anti-spam law include provisions that would make it prohibitively expensive for spammers to continue in business.
Lackritz called H.R. 718 objectionable because it would “inhibit the growth of the Internet,” give certain ISP policies “the force of law” and expose businesses to the threat of “wide-ranging and potentially open-ended” lawsuits.
“As currently written, the bill does not stop with fraudulent or misleading commercial e-mail,” he said. “It seeks to restrict and preclude legitimate commercial communications between businesses and their customers or prospective customers.”
Lackritz said H.R. 1017 would “preserve the many benefits” of electronic communication, yet reduce the incentive to spam.
“We share the committee’s concern over the abuse of unsolicited commercial e-mail, but we believe enacting legislation that frustrates the innovative use of the Internet would be bad and misguided public policy,” he said. “It would constitute a severe over-reaction to a problem that can be addressed with a narrowly tailored solution along the lines of H.R. 1017.”
Misener, testifying on behalf of the National Retail Federation, which represents online and offline retailers, said the NRF supports efforts to curtail spam, but not at the expense of legitimate business activities.
“H.R. 718 makes a good effort to prohibit egregious e-mail practices,” he said. “Unfortunately, we believe this bill goes too far to limit such practices and would inadvertently constrain legitimate business activities. Specifically, we do not support the provisions in H.R. 718 that would give Internet service providers the right to set e-mail policies for other commercial entities.”
Misener said many ISPs have retail operations that compete with NRF members.
“Government must not establish a regime in which such ISPs can use their market power over e-mail to restrain customer communications from their retail competitors,” he said.
