Two More Anti-Spam Bills in Congress

Dateline 07/13/98

Spam Legislation

Two more bills with the aim of controlling spam have recently been introduced in Congress. With the bills in the round-up we did last November and the infamous Murkowski bill that passed Senate in May we now at least know that unsolicited email may be a real problem. But what's in the new legislative attempts? Let's have a look.

H.R. 4176 `Digital Jamming Act of 1998'

The `Digital Jamming Act of 1998', introduced by Congressman Edward Markey on June 25, 1998 and referred to the Committee on Commerce claims to slam the three evils of our times (phonetically, at least): `spamming', `slamming', and `cramming'.

Cramming is the practice of a telephone provider adding unauthorized services, slamming that of switching the long distance carrier without the customer's authorization. Consequently, the bill tries to cure spam by applying telemarketing legislation to commercial email.

It would give the Federal Communications Commission (FCC) the right to maintain an opt-out list of people who do not want to receive unsolicited email (this, by definition, makes all mail to any address not on the list solicited, doesn't it?), just as the FCC has the right to create a list of people who don't want to be contacted by telemarketers; it has not done so and rather relies on the industry's self-regulation. The only reason why this is less a problem with telemarketing than with spam is that the former is more expensive than the latter. Internet Service Providers (ISPs) would be required to inform their customers that such an opt-out database exists.

The bill also wants to ensure the `right to reply' by outlawing any header and address forgery and requiring full contact information. It continues by giving ISPs the right to enforce their acceptable usage policy and lets them fine customers $50 for each other user -- of the same ISP (?) -- who they send unsolicited commercial email to (so... a spammer could find herself having to pay $50 for spamming herself? Cute.).

What Markey's bill boils down to is the problematic opt-out scheme done in a not necessarily very effective way. At least header forgery would become illegal and that could do some good, of course somewhere in the vast seas of Cyber-self-regulation beyond legislation, though.

H.R. 4124 `E-Mail User Protection Act of 1998'

The `E-Mail User Protection Act of 1998' was introduced by Congressman Merrill Cook on June 24, 1998 and also referred to the Committee on Commerce. It looks more promising.

The first goal of the bill is to ensure it is possible to reply to unsolicited commercial emails. Thus it would outlaw most practices through which spammers (try to) disguise their identity and the bill would even make it illegal to obtain new addresses and domain names for that purpose.

But the Cook bill does not stop there. It suggest an opt-out policy that looks much more effective than the one of the Merkey bill: spammers have to comply with removal requests (so far so well-known); but the bill would also make it illegal to initiate unsolicited communication if "having been given prior notice (...) that the recipient does not wish to receive such messages." A standard together with its organization should be adopted for this kind of `user control'.

If we can make it the marketer's duty to seek such `notice' this systems deems me very close to an opt-in scheme; in fact, opt-in and opt-out are complementary: in a world of opting-in everybody is initially on the opt-out list. In the world we seem to live now we're all lost in an unbounded database of opt-inners; while there are (some) opt-out lists, there is no one opt-out list. The Cook bill could provide that list and thus avoid the "free shot" problem where every spammer can mail you at least once, legally, before you can opt out.

While potentially (provided it works and people know about it) achieving the same goals as a strict system of opt-in email marketing this mega-opt-out strategy seems to be unnecessarily complicated.

The Coalition Against Unsolicited Commercial Email (CAUCE) sees a problem with the Cook bill not providing any right of action by individuals, only the Attorney General. And indeed that it is a bit strange; frightening, maybe?