RID Spam Act Fuels Debate

While the Direct Marketing Association applauds the Reduction in Distribution of Spam Act introduced recently in the House of Representatives, anti-spammers predict that if it becomes law, the act will result in an increase in unsolicited commercial e-mail.

Anti-spammers want opt-in-based legislation, or a bill forcing marketers to get explicit permission before sending e-mail.

The DMA maintains that requiring e-mailers to provide a valid return address and clear opt-out instructions that will be honored will eliminate most of the problem by focusing on the “fraudulent few” who account for the vast majority of spam.

To anti-spammers' disappointment, the RID Spam Act, introduced May 23 by Rep. Richard Burr, R-NC, and sponsored by Reps. W.J. “Billy” Tauzin, R-LA, and F. James Sensenbrenner Jr., R-WI, is opt-out-based.

It would ban false header information and the use of others' e-mail addresses or domain names without their permission — common tactics spammers use to hide the source of their blasts.

The bill also would ban harvesting e-mail addresses and require all commercial e-mail to include a valid street address and a clear notice and mechanism to opt out of future e-mailings. It would prohibit contact with someone who opted out for three years beginning 10 days after the remove request was made.

However, there is some question whether opt-out links provided by a mailer can be effective. Fifty-eight percent of consumers in a recent study commissioned by New York e-mail service provider Bigfoot Interactive said they don't trust opt-out links because they think the links lead to more spam.

“There's a big consumer trust issue at the center of this that everyone is forgetting about,” said Michael Della Penna, Bigfoot's chief marketing officer.

Bigfoot is lobbying Internet service providers to include opt-out buttons in their e-mail interfaces that consumers could click, which would automatically send their addresses to the mailers to be added to the mailers' suppression files.

Bigfoot sends 40 million to 100 million e-mails monthly for clients such as MCI, The Washington Post and Newsweek Interactive.

In another area of contention, the RID Spam Act exempts e-mailers whose opt-out address temporarily isn't functioning. However, this would protect spammers if their opt-out boxes were simply full, critics say.

“If you have the capability to send 50 million e-mails, you should have the capability of receiving 50 million opt outs,” said Ray Everett-Church, chief privacy officer at consultancy ePrivacyGroup, Philadelphia.

The bill would require senders of sexually oriented material to identify it as such.

Also, the bill would let Internet service providers sue offending spammers for up to $500,000. A federal court could triple that if it found that the spammer knowingly violated the act.

The act would give the Federal Trade Commission and U.S. attorney general enforcement authority. But it would let state attorneys general sue offending spammers on behalf of residents if the FTC or U.S. attorney general hadn't begun an action.

Consumers could not sue spammers under the bill.

The bill also would supersede the 30 or so state spam-related laws already on the books.

RID Spam contains pretty much everything for which the DMA has been lobbying in a federal spam-related bill.

“The Direct Marketing Association continues to be supportive of the passage of federal legislation as one of the weapons to combat the problem of spam,” Jerry Cerasale, DMA senior vice president, government affairs, said in a statement.

However, the bill also calls for “clear and conspicuous identification that the message is an advertisement or solicitation” but does not specify how. The DMA opposes “ADV” labeling requirements in subject lines.

Anti-spammers and consumer groups couldn't be clearer in their criticism of the House bill, along with a similar bill introduced in the Senate in April, the CAN-SPAM Act, sponsored by Sens. Conrad Burns, R-MT, and Ron Wyden, D-OR.

A coalition of privacy, anti-spam and consumer groups May 22 wrote to Congress calling for opt-in-based legislation.

“We are hard-pressed to find a single measure in these bills that will result in less unwanted e-mail for consumers, while spammers couldn't have asked for more favorable protections,” Scott Hazen Mueller, chairman of the Coalition Against Unsolicited Commercial Email, and one of the letter's signers, said in a statement. “The current collection of so-called 'anti-spam' legislation reflects almost no consideration of consumer concerns and instead gives direct marketers a free pass to send even more spam.”

But not everyone agrees that more marketers will start spamming just because opt-out marketing is legal. Many marketers would rather not risk the damage to their brands that spam can cause, no matter what the law says.

However, marketers concerned about their brands aren't the problem, said ePrivacyGroup's Everett-Church.

“Mailers who see the value of permission relationships are not likely to turn on the spam spigots the day the bill passes,” he said. “But there are a lot of organizations who have demonstrated less care about consumer attitudes and less respect for permission-marketing approaches that will undoubtedly take comfort in legislation that says 'meet these requirements and you can mail anything you like.'”

Everett-Church also said content is not the problem, volume is, and that the Internet's most prolific spammers would use opt-out-based federal legislation as justification for their current practices.

“The biggest spammers have stated their willingness to abide by opt-out laws,” he said. “If they have a legal framework they can defend themselves with, they will do so. … You can send an awful lot of spam being completely truthful.”

Meanwhile, the DMA has unveiled its so-called Anti-Spam Working Strategy, which identifies “key areas in the battle against spam.” Among them are adherence to the DMA's “Four Pillars of Responsible E-Mail Marketing,” which are:

* An honest subject line.

* No forging of headers or technological deceptions.

* Identity of the sender, which includes a “physical” address.

* An opt out that works and is easy to find and easy to use.

The DMA's Anti-Spam Working Strategy backs the outlawing of harvesting and so-called dictionary attacks for gathering e-mail addresses. It also calls for a “Gold List” of members who put up a minimum $500 bond subject to forfeiture if they harvest addresses or violate any of the “Pillars,” and pay $100 per year to be used to help authorities find and prosecute lawbreaking spammers.

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