U.S. Senate Cans Spam

By Susan Kuchinskas

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The U.S. Senate Wednesday unanimously approved a bill meant to reduce the overwhelming volume of spam by imposing tough penalties on spammers.

The bill, sponsored by Sens. Conrad Burns (R-Mont.) and Ron Wyden (D-Ore.), makes it illegal to send unsolicited commercial e-mail or e-mail with misleading addresses or subject headers. It also specifically makes it illegal to harvest addresses without consumers' knowledge.

Known as the Can Spam Act, it incorporates sections of other proposed anti-spam bills, including provisions from a competing measure authored by Sens. Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.) that create several tiers of penalties, ranging up to five years in prison, for several common spamming practices.

Competing anti-spam bills are stalled in the House Energy and Commerce Committee, but both chambers says they committed to have a bill on President Bush's desk by the end of the year. Differences between the Senate and House versions would have to resolved in a joint conference meeting.

The Burns-Wyden bill supersedes all state laws, including California's tough S.B. 186, signed into law by Gov. Gray Davis last weekend to go into effect Jan. 1. Language in the Senate bill said that although many states have enacted their own legislation to regulate or reduce unsolicited e-mail, the lack of a geographic location for an e-mail address makes it difficult for businesses to follow the disparate laws.

Penalties include fines of up to $1 million and up to one year of prison for misleading header information. The bill also provides penalties for persons who facilitate the transmission of spam -- in other words, e-mail service providers. It will be enforced by the Federal Trade Commission, but state attorneys general can bring actions in U.S. district court on behalf of their citizens.

One widely-noted amendment to the bill requires the Federal Trade Commission (FTC) to report to Congress with a plan for creating a Do-Not-E-mail registry similar to the Federal Do-Not-Call list, an initiative promoted by U.S. Sen. Charles Schumer (D.-N.Y.). It also gives the FTC the authority to implement such a list. Although the FTC and privacy advocates insist such a registry won't work, Schumer attached his bill as an amendment to the Burns-Wyden bill.

It's a popular addition. In a study commissioned by content security firm SurfControl, 86 percent of employees supported the part of the bill that outlaws messages with misleading information regarding the identity of the sender and the content of the e-mail.

Another amendment shows that legislators have heeded marketers' concerns. It gives the FTC the power to change the ten-day limit for sending unsolicited e-mail after a consumer has opted out, after taking into account, as it says, "the interests of recipients of commercial electronic mail and the burdens imposed on senders of lawful commercial electronic mail ."

Many e-mail marketers welcomed the legislation, flawed though it might be. Dave Lewis, vice president for deliverability management and ISP relations for e-mail services provider Digital Impact, said, "At this point, all of us are saying, 'Pass something, even if it isn't 100 percent to our liking. We can't continue to deal with spam legislation at the state level, with each state taking a different twist. At least now, there will be some standard."

Lee Smith, president of market research firm InsightExpress, acknowledged that a Do-Not-Email registry wouldn't stop spam, but said the legislation was a necessary first step.

"The bill will get legitimate businesses to think about how they engage with their customers and clients. IT will also provide a platform to shut down people within the U.S. who issue spam," Smith said.

While state and federal attorneys go after spammers, he said ultimately, it will be ISPs that really will enforce the law.