Senator 'Confident' About '03 Spam Bill

Chances are stronger than ever that Congress will pass anti-spam legislation.

Sens. Conrad Burns, R-MT, and Ron Wyden, D-OR, this month introduced an update of an anti-spam bill from last year that passed the Senate's commerce committee unanimously, but then stalled.

“It's not that it doesn't have support, it just never made it to the floor for debate,” said Burns' press secretary, Jennifer O'Shea. This session, “it's one of the senator's top priorities. Chances are it'll go through this time. He's pretty confident.”

According to a draft dated April 7, the Controlling the Assault of Non-Solicited Pornography and Marketing bill, or CAN-SPAM Act of 2003, would ban misleading subject lines. It also would ban forged headers, a common tactic spammers use to mask e-mails' origins.

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.

Trying to opt out of spam lists often simply confirms to spammers that the address is live and results in more unsolicited e-mail as they sell the address to other spammers.

The CAN-SPAM act 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 act defines “unsolicited” as e-mail sent without “affirmative” or “implied” consent, affirmative consent meaning “that the recipient has expressly consented to receive the message,” and implied consent meaning that a business transaction has taken place between the sender and receiver within three years, and that the receiver was given a clear chance to opt out of future e-mails.

The draft does not say anything about bulk e-mail, so presumably single commercial e-mails would be affected as well.

The act would ban sending commercial e-mail to addresses that were gathered “using an automated means” or gathered from sources with published anti-spam policies.

The CAN-SPAM act would give the Federal Trade Commission enforcement authority.

It also provides for state attorneys general to sue on behalf of residents, and for Internet service providers to sue businesses that send unsolicited commercial e-mail across their networks. The bill would let violators be sued for actual monetary losses, or $10 per e-mail up to $500,000, or up to $1.5 million if the sender knowingly violated the act.

The bill also would let ISPs decline to process e-mail at their discretion. And it contains a provision superseding state and local anti-spam laws.

Yahoo, eBay and AOL have indicated they support the act.

“Yahoo supports the Burns-Wyden bill because it provides for effective deterrents, penalties and marketing rules that would give consumers and e-mail service providers additional protection from unsolicited commercial e-mail, and is very encouraged by the progress being made by the House Commerce and Judiciary committees,” Mary Osako, director of communications, Yahoo, said in a statement.

EBay did not release a statement, but authorized use of its name in Burns' and Wyden's press releases, according to eBay spokesman Kevin Pursglove.

Though the Direct Marketing Association came out in favor of federal anti-spam legislation in October, its reaction to the reintroduction of the Burns-Wyden CAN-SPAM act was vague.

The DMA “believes that it is important that the debate about federal spam legislation be taken up in the Senate as soon as possible so a consensus on this important issue can be achieved before spam strangles the life out of e-mail as a viable communications medium,” DMA president/CEO H. Robert Wientzen said in a statement. “Based on our board's position that federal spam legislation would be helpful, we will work with the senators and other stakeholders to craft this legislation.”

Meanwhile, the FTC plans a spam forum April 30-May 2 “to explore the issues regarding the proliferation of and potential solutions to unsolicited commercial e-mail.” Wientzen and DMA senior vice president Jerry Cerasale are scheduled to speak at the forum.

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