[huridocs-tech] Policy Post 9.14: USA: Congress Takes on Spam

CDT POLICY POST Volume 9, Number 14, July 2, 2003

A Briefing On Public Policy Issues Affecting Civil Liberties Online
from
The Center for Democracy and Technology

Contents
(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
_______________________________________________

(1) Senate Committee Approves Anti-Spam Bill

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
________________________________________________

(2) CAN-SPAM Includes Criminal and Civil Provisions

The CAN-SPAM bill covers all commercial email, not only that which is
unsolicited, with a combination of criminal and civil provisions:

* Criminal Provision: The bill would prohibit the use of materially false or
   misleading header information - the information indicating the source of
   the message - in commercial electronic mail messages. By falsifying
   information, spammers make it difficult for ISPs to filter out spam.
   The criminal provision carries a penalty of a fine or imprisonment for
   up to 1 year.

* Civil Provisions: The civil provisions prohibit not only false or
   misleading header information, but also deceptive subject lines that are
   "likely to mislead" the recipient.

* Opt-out: Under the bill, commercial email would be required to contain a
   return address or Internet-based mechanism to allow the recipient to opt
   out of receiving more email. Senders of unsolicited email to someone who
   has opted out would incur a civil penalty.

* Aggravated violations: The bill also prohibits dictionary attacks,
   "harvesting" of email addresses from Web sites, automated creation of
   multiple email accounts, and the hijacking of computers to relay
   otherwise unlawful commercial email.

* Labeling: All unsolicited commercial email must include identification
   that the message is an advertisement or solicitation.

* Physical address: All unsolicited commercial email must include a valid
   physical postal address of the sender.

* Preemption: The CAN-SPAM bill would supersede state laws concerning
   unsolicited commercial email messages. Spammers would continue to be
   subject to state laws that prohibit falsity or deception in any portion
   of a commercial email message.

* Enforcement: In general, the law would be enforced by the Federal Trade
   Commission. States could bring civil actions on behalf of their residents.
   ISPs could bring civil actions to enjoin violation of the Act or to
   recover actual or statutory damages. No private right of action is
   provided for individuals.

* Do-Not-Mail Registry: The CAN-SPAM bill would requires the FTC to report
   to Congress on the feasibility or a "Do Not Mail" registry similar to the
   "Do Not Call" registry soon to be launched by the FTC.

CDT's full summary of the CAN-SPAM bill is at
http://www.cdt.org/speech/spam/030624cdtanalysis.pdf

____________________________________________

(3) Congress Must Choose Among Various Anti-Spam Proposals

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 ,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.

_________________________________________

(4) House Committee Action Imminent

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/.

This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/pp_9.14.shtml.

Excerpts may be re-posted with prior permission of ari@cdt.org

Policy Post 9.14 Copyright 2003 Center for Democracy and Technology


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