Senate Anti-Spam Bill passed – Can Spam Act (S. 877)

Via Tech Law Advisor, via Michael Wong, and via Zachary Rodgers, I was directed to Roy Mark at Internet News and his article of October 23, 2003 on “Senate Anti-Spam Bill Ups Ante for House Action”.

CAN SPAM ACT (S.877) – US Senate passes Anti-Spam Bill, Not Yet Law

As reported by Mark, the US Senate has finally approved “the first ever federal anti-spam legislation” on a 97-0 vote (the zero tells you that any Senator voting AGAINST an anti-spam proposal could probably have kissed his re-election chances goodbye). The CAN SPAM Act (S. 877) (CAN SPAM is an acronym for CONTROLLING THE ASSAULT OF NON-SOLICITED PORNOGRAPHY AND MARKETING) was co-sponsored by Senator Conrad Burns (Republican, Montana) and Senator Ron Wyden (Democrat, Oregon).

According to this bill, commercial bulk e-mailers violating the law would be subject to civil and criminal penalties. The bill defines spam as an “unsolicited commercial electronic mail message” which “is not a transactional or relationship message” and which “is sent to a recipient without the recipient’s prior affirmative or implied consent“.

Senator Charles Schumer (Democrat, New York) championed an amendment added to the bill which directs the FTC (Federal Trade Commission) to develop a federal “do not spam list” similar to the National Do Not Call Registry.

Senators Orrin Hatch (Republican, Utah) and Patrick Leahy (Democrat, Vermont) added criminal provisions to the bill ranging up to five years in prison for some of the most insidious common spamming practices.

PRESS RELEASE REGARDING THE SENATE BILL

Here is a press release found at Senator Conrad Burns’ website:

Press Release October 22nd, 2003

BURNS, WYDEN WIN PASSAGE OF ANTI-SPAM LEGISLATION

Legislation gives consumers more control over unwanted e-mail, promises stiff punishment for senders of unlawful, deceptive spam

Washington, DC – U.S. Senators Conrad Burns (R-Mont.) and Ron Wyden (D-Ore.) today won unanimous Senate approval of the bipartisan CAN SPAM Act of 2003 (S. 877), aimed at helping American consumers deal with the growing problem of unsolicited e-mail or “spam.” Wyden and Burns have worked for more than three years on legislation to curb spam, which constitutes nearly half of all e-mail traffic today. The legislation passed by the Senate today includes a number of tough civil and criminal penalties against the senders of unlawful unsolicited e-mail, and addresses a number of other issues including the idea of a “do not spam” list and special warnings for pornographic messages.

“This is something we have been working on for some time now,” said Burns. “There has been an ongoing push from all sides on this issue, and the time has finally come. The overwhelming message from consumers and industry alike is that something needed to be done and I am happy to say that today we succeeded in that effort in the Senate.”

“Today, the Senate has sent the message that the government is going on the offensive against kingpin spammers,” said Wyden. “Americans are tired of just watching and fretting over in-boxes clogged with unwanted e-mail, and this legislation is an important step toward giving them more control.”

Worldwide, more than 13 billion spam e-mail messages are sent each day. Costs in the United States alone have been estimated at $10 billion per year, due to expenses for anti-spam equipment and manpower and lost productivity. The Burns-Wyden bill particularly targets deceptive messages sent by many large-volume spammers, who often hide their identities, use misleading subject lines, and refuse to honor opt-out requests from spam recipients.

Following is a description of the provisions of the bill approved by the Senate today.

Civil provisions of the bill include the following:

-a requirement that senders of marketing e-mail to include a return address so the consumer can tell them to stop;

-a requirement that unsolicited messages include clear notification that the message is an advertisement, and a valid physical postal address;.

-a prohibition on false and deceptive headers and subject lines – so that consumers can immediately identify the true source of the message, and so that Internet companies can identify the high-volume senders of spam;

-a provision to triple the monetary damages imposed on spammers who engage in particularly nefarious spamming techniques – such as using automatic software programs to “harvest” e-mail addresses from Internet websites, and using “dictionary attack” software to send messages to a succession of randomly generated e-mail addresses in search of real recipients; and

-strong, multi-pronged enforcement by the Federal Trade Commission, state Attorneys General, and Internet service providers (ISPs), with the potential for multi-million dollars judgments.

Additional criminal provisions, authored by Senators Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.) were added into the legislation by amendment on the Senate floor. The Hatch/Leahy criminal provisions create several tiers of penalties, ranging up to 5 years in prison, for several common spamming practices, including:

-hacking into somebody else’s computer to send bulk spam;

-using “open relays” to send bulk spam with an intent to deceive;

-falsifying header information in bulk spam; and

-registering for 5 or more email accounts using false registration information, and using these accounts to send bulk spam.

-sending bulk spam from somebody else’s Internet protocol addresses.

The Burns-Wyden legislation, with an amendment from Senator Chuck Schumer (D-N.Y.), also requires the Federal Trade Commission to report to Congress with a plan to implement a “do-not-spam” list, similar to the “do-not-call” list for which millions of Americans have already registered, and to share any potential drawbacks or difficulties with the implementation of such a list. The legislation also gives the FTC the authority to implement a do-not-spam list.

Other amendments to S. 877 include provisions to require the FTC to write rules for mandatory labeling of pornographic messages; a separate provision directs the FTC to consider mandatory labeling for unsolicited e-mail generally, as well as possible financial rewards for tech-savvy citizens who help trace hard-to-find spammers.

A number of anti-spam bills are currently moving through the House of Representatives. Wyden and Burns hope to work with their anti-spam counterparts in the House to send final legislation to the President’s desk this year.

[Let me say that I personally – and I am sure many e-mail users are like I am – find much commercial spam to be an odious, egregious violation of the personal sphere, daily confronting computer users with some of the basest elements that humanity can produce, and as far as I am concerned, the civil and criminal penalties for spammers of all ilk should be much higher than they are in this bill. These people daily and negatively and often substantially reduce the quality of my life as well as the lives of millions of others, and for that, the punishments should be as severe as possible. I personally find this bill to be much too soft.]

WHAT IS THE HOUSE OF REPRESENTATIVES DOING?

Bills must of course pass both houses of Congress to become law. Mark writes that the Senate anti-spam bill is not substantially different than competing bills “currently bottled up in the Energy and Commerce Committee“, chaired by Billy Tauzin (Republican, Louisiana).

It may thus be high time for the House of Representatives to get their spam-act together. But before we throw stones we must of course inquire as to what is the reason for the delay in the House Energy and Commerce Committee?

I read the following about that committee at NAW :

“while [it is] just the fifth in size in the House of Representatives with 57 Members, [it] has the broadest legislative jurisdiction of any committee in either the House or Senate, and is responsible for approximately half of all legislation introduced in the House.”

Presuming that work overload is one aspect of the delays in the House, we must ask what the reason for that kind of disproportionate job distribution in the House might be and why is that not changed, so that legislative tasks in the House are evenly distributed? Are some lawmakers more or lesser lawmakers than others? Hard to believe. Representatives in Congress should streamline their operations in order to serve as models fit for emulation rather than to serve as bad examples of organization. A corporate executive who so uneconomically split his manpower would be out on his ear in no time.

In any case, as Senator Wyden, sponsor of the Senate Bill stated: “Today, the Senate has sent the message that the government is going on the offensive against kingpin spammers,” said Wyden. “Americans are tired of just watching and fretting over in-boxes clogged with unwanted e-mail, and this legislation is an important step toward giving them more control.”

Better late than never.

CONGRESSIONAL LEGISLATIVE DRAFTING IS IMPROVABLE

Taking §102(a)(1) of the CAN SPAM ACT, I would like to show my editing suggestions to reduce the unnecessary verbiage increasingly found in Congressional legislation – are drafting and writing not taught in the law schools?

original text

(1) Electronic mail has become an extremely important and popular means of communication, relied on by millions of Americans on a daily basis for personal and commercial purposes. Its low cost and global reach make it extremely convenient and efficient, and offer unique opportunities for the development and growth of frictionless commerce.

text as edited by LawPundit retaining the above meaning and throwing out the verbiage

(1) Electronic mail (e-mail) has become an important daily means of personal and commercial communication for millions of Americans. Convenient and efficient due to its low cost and global reach, e-mail offers unique opportunities for the development and growth of streamlined commerce.

[Explanation of the editing above. Using both “popular” and “relied on by millions of Americans” is repetitive. Daily basis means “daily”. “Frictionless” commerce is not a “term of art” commonly used but rather appears to be a registered trademark – see Frictionless Commerce – talk about advertising for a commercial company through an anti-spam law. “Extremely” twice is like “very” overdone, see Volokh’s How to Write, where he suggests avoiding terms such as “very” as verbiage].

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