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Senate Committee Passes CAN-SPAM Act; Do-Not-E-Mail Provision Added

The Senate Commerce Committee yesterday unanimously passed a toughened version of the Controlling the Assault of Non-Solicited Pornography and Marketing, or CAN-SPAM, Act.

Moreover, the bill, co-sponsored by Sens. Conrad Burns, R-MT, and Ron Wyden, D-OR, now calls for the Federal Trade Commission to submit a plan and a timetable to Congress for creating a national do-not-e-mail list, similar to the FTC's national do-not-call list. The legislation would pre-empt state anti-spam laws.

The do-not-e-mail provision is seen as a nod to a proposal from Sen. Chuck Schumer, D-NY, to create a national do-not e-mail list. Schumer's bill has been gaining support lately among anti-spammers and consumer advocates.

The Direct Marketing Association is adamantly opposed to a national do-not-e-mail list, contending that such a list would not be honored by the so-called “bad actors” responsible for 90 percent of the fraudulent e-mail polluting consumers' inboxes. As a result, the DMA contends, legitimate marketers' reputations would be hurt among consumers who signed up for a do-not-e-mail list but who continued to receive spam.

Other changes in the act:

· Increased penalties for certain techniques commonly used by spammers, including “dictionary attacks,” the establishment of numerous e-mail accounts to make spam more difficult to track and block, and the hijacking of other computers or computer networks to send or relay spam.

· An added provision clarifying that when a recipient asks to be removed from a sender's mailing list, the sender also may not share or sell that recipient's e-mail address to a third party.

The act would require all commercial e-mail to have functioning return addresses or a link recipients can use to opt out of future e-mails that stays working at least 30 days after the original mailing. The act also would require unsolicited marketing e-mail to include “clear and conspicuous identification the message is an advertisement,” clear opt-out instructions and a valid physical postal address.

The senators also reportedly vowed that the bill would get tougher as it moves forward.

The Senate Commerce Committee also voted yesterday to give the FTC broader authority in going after cross-border spammers.

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