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Senate votes 97-0 to can fraudulent spam

By Jonathan Krim
The Washington Post

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The bill, sponsored by Sens. Conrad Burns, R-Mont., and Ron Wyden, D-Ore., and approved 97-0, would target the most unsavory spammers by prohibiting e-mail that sells financial scams, fraudulent body-enhancement products and pornography.

The bill also draws on amendments from Sens. Patrick Leahy, D-Vt., and Orrin Hatch, R-Utah, that would criminalize techniques used by spammers to thwart detection — disguising identities, masking locations of computers used to send junk e-mail and automating spam attacks. A 1998 Washington state law similarly makes it illegal to send unsolicited commercial e-mail addressed in a false or misleading way.

The Senate's action comes as spam's stranglehold on e-mail communication is growing. By some estimates, spam now accounts for 60 percent of all e-mail traffic and is costing businesses and consumers roughly $10 billion per year.

The Burns-Wyden bill has been supported by the marketing, retailing and Internet service-provider industries, which argue that a federal law should not inhibit legitimate marketers from sending e-mail advertising that consumers might want.

But several anti-spam and consumer groups have argued that the bill has loopholes that might enable so-called legitimate marketers to bombard consumers with unwanted e-mail.

The bill would pre-empt all state anti-spam laws, some of which are tougher than the Burns-Wyden bill. And it would prohibit private lawsuits against spammers, allowing only suits by Internet e-mail account providers, all of which also market to their members.

But after months of negotiations, the bill now includes a provision, supported by some in the anti-spam community, that directs the Federal Trade Commission (FTC) to come up with a plan for a no-spam registry.

Proposed by Sen. Charles Schumer, D.-N.Y., and supported by a variety of groups that includes the Christian Coalition of America and the Coalition Against Unsolicited Commercial Email, the registry would be similar to the FTC's do-not-call list, which prohibits telemarketers from calling any phone number that consumers place on the list.

To date, however, FTC Chairman Timothy Muris has opposed a no-spam registry, arguing that it would be unenforceable and that it would be hard to keep e-mail addresses secure.

Supporters of a registry say that it would at least control many so-called legitimate marketers that fail to honor consumer requests to be free of unwanted mail. Schumer's plan also allows for entire e-mail domains to be put on the list so that marketers could be prevented from sending unwanted commercial mail to employees.

The bill stops short of mandating the registry, instead directing the FTC to develop a registry system within six months and to document technical hurdles.

An FTC official said last night that the agency's position on a registry has not changed and that, even if a workable system could be devised, the bill does not provide for the resources required to implement it.

To protect e-mail addresses on the list, the official said, marketers would have to submit their databases to the agency, which would scrub them of names on the registry and return them.

"If we were to continue to believe it wouldn't work, Congress would have to change the law" to force the FTC to institute the registry, the official said.

But Schumer said he is confident that "this is a now a downhill road, as opposed to an uphill road" to getting a registry and that the odds are high that one will be in place in a year.

The White House yesterday issued a statement supporting passage of the Burns-Wyden bill, although it did not address the registry question.

Yahoo! and Microsoft, two of the largest Internet service providers, also endorsed the bill, although they have opposed the registry notion. The Coalition Against Unsolicited Commercial Email, which had criticized the bill as being weak, also gave tentative support.

A similar bill, though without a registry provision, is in the House Energy and Commerce Committee, where several legislators want it strengthened.

Committee Chairman Billy Tauzin, R-La., and Judiciary Committee Chairman James Sensenbrenner Jr., R-Wis., two of the House bill's sponsors, were embarrassed by revelations last summer that their staffs worked closely with the marketing and retailing industries in crafting the original version of the bill.

Some provisions have been changed but not enough to break the logjam, one committee staff member said.

Many in the business community are particularly eager for a federal law because they want it to supersede existing state laws that they consider draconian.

The U.S. Chamber of Commerce said Tuesday that a California law set to take effect Jan. 1 would hurt "almost every type of business across the country."

The law, authored by California state Sen. Kevin Murray of Los Angeles, prohibits all unsolicited commercial e-mail unless consumers have given their permission to receive it, a system known as "opt-in" and supported by consumer groups.

The congressional bills are "opt-out," meaning that companies can send e-mail but must honor consumers' requests to be free of future mailings.

Joseph Rubin, the chamber's executive director of technology and e-commerce, said many of his members fear their marketing lists would not qualify as opt-in under the California law.

Many marketers also argue that one federal law would be easier to enforce than a patchwork of state regulations.

"It sort of boggles the mind," said Murray, who said that no major corporation opposed his bill. "They have a rational interest in uniformity of laws but why not do the law that is the strongest?"

Seattle Times staff contributed to this report.

Copyright © 2003 The Seattle Times Company