A Briefing On Public Policy Issues Affecting Civil Liberties Online
from
The Center For Democracy and Technology
(1) Senate Committee Approves Anti-Spam Bill
(2) CAN-SPAM Includes Criminal and Civil Provisions
(3) Congress Must Choose Among Various Anti-Spam Proposals
(4) House Committee Action Imminent
On June 19, the Senate Commerce Committee approved S. 877, the CAN-SPAM ("Controlling the Assault of Non-Solicited Pornography and Marketing") Act of 2003. Sponsored by Sens. Conrad Burns (R-MT) and Ron Wyden (D-OR), the bill is one of several Congress is considering to stem the flow of fraudulent or unsolicited commercial email. Given estimates that spam constitutes as much as 50% of email traffic, chances are higher than ever that Congress will adopt a federal anti-spam law. But the final shape such legislation will take is unclear, and some of the legislative proposals pose risks to free speech and privacy values.
Spam causes problems for Internet users, service providers and legitimate marketers. Users complain of email boxes overflowing with unwanted messages, some of which contain personally offensive material. ISPs struggling to keep spam from their customers bear costs in terms of bandwidth and personnel. Legitimate marketers worry that unwanted marketing messages threaten to drown out appropriate communications with consumers.
CDT supports the enactment of federal legislation to limit spam. But it will not be easy to find an approach that responds to the sometimes disparate interests at stake while protecting freedom of speech and without limiting innovation. Final legislation will also need to consider the interests of the states in protecting the consumer rights of their citizens.
To find out more about how spammers operate, see CDT's report "Why Am I Getting All this Spam," available at http://www.cdt.org/speech/spam/030319spamreport.pdf
The CAN-SPAM bill covers all commercial email, not only that which is unsolicited, with a combination of criminal and civil provisions:
CDT's full summary of the CAN-SPAM bill is at http://www.cdt.org/speech/spam/030624cdtanalysis.pdf
S. 877 is one of several proposals currently under consideration by the Congress to reduce spam.
Another Senate bill, S. 1231, introduced by Sen. Charles Schumer (D-NY), would require marking of unsolicited commercial email with an ADV label in the subject line; make it unlawful for a person to send commercial email in violation of ISP policies or terms of service; make it unlawful to send commercial email that contains false, misleading, or deceptive information in the subject line, the header or router information, or the body of the message; and establish a "Do-Not-Mail" registry. The bill would give individual users the right to sue for injunctive relief and damages of up to $1,000 per email.
Senate Judiciary Committee Chairman Orrin Hatch (R-UT) and ranking Democrat Patrick Leahy (VT) have introduced a bill, S. 1293, focusing on criminal penalties. It would criminalize: (1) hacking into a computer to intentionally send multiple commercial email messages; (2) using a computer system to relay or retransmit multiple emails with the intent to deceive or mislead recipients or ISPs as to the origin of such messages; (3) falsifying header information; or (4) falsifying registration information for multiple email accounts or domain names and using them to send multiple commercial emails. The term "multiple" would be defined as more than 100 electronic mail messages during a 24-hour period, more than 1,000 electronic mail messages during a 30-day period, or more than 10,000 electronic mail messages during a 1-year period. The bill imposes criminal penalties, including forfeiture, and authorize ISPs to sue injunctive relief and damages.
The House Judiciary and Commerce Committees are expected to hold hearings on spam legislation immediately after the July 4 recess. The Judiciary Committee hearing is scheduled for July 8; the Commerce Committee may hold a hearing the next day. Committee markups could follow very soon thereafter.
In the House, senior Members of the Commerce and Judiciary Committees have introduced H.R. 2214, the Rid SPAM Act. It includes criminal provisions, opt-out requirements and mandatory labeling of sexually explicit material.
Another house bill is the Anti-spam Act of 2003, sponsored by Reps. Wilson (R-NM), Green (D-TX.), Boucher (D-VA), Dingell (D-MI), Markey (D-MA), and others. The Wilson-Green bill, H.R. 2515, would require all commercial email to include clear and conspicuous identification that the message is commercial in nature, an opt-out opportunity, and a valid street address of the sender. It would be unlawful to send email to consumers who had opted-out of receiving further messages from the sender or "covered affiliates." The bill would also prohibit sending commercial emails that contains false or misleading header information or subject lines. It would prohibit using harvested email addresses and dictionary attacks. It would require e-mailers sending "sexually oriented" materials to label their content and would give the Federal Trade Commission regulatory authority to prescribe the marks or notices that must be used. The bill's provisions carry both civil and criminal penalties.
A third, "compromise" bill is being drafted, which may be the preferred language at markup.
Final note: All participants in the debate must realize that no legislation will totally solve the spam problem. There is no "silver bullet." ISPs and users will continue to need to use filters and other technology tools.
In the coming weeks, CDT will be working with key stakeholders to find an effective, balanced legislative response to spam.
CDT op-ed on spam, Legal Times, June 16, 2003: http://www.cdt.org/publications/030616legaltimes.pdf
CDT's spam legislation page: http://www.cdt.org/legislation/108th/junkemail/
Detailed information about online civil liberties issues may be found at http://www.cdt.org/.
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Policy Post 9.14 Copyright 2003 Center for Democracy and Technology
