Antispam measure gains steam in House

A new proposal in the House of Representatives promises to slap the worst bulk e-mailers with prison terms and millions of dollars in fines.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read
Antispam sentiment on Capitol Hill is growing, with a new proposal in the House of Representatives promising to slap the worst bulk e-mailers with prison terms and millions of dollars in fines.

The bill, called the Reduction in Distribution of Spam Act, is sponsored by Rep. Richard Burr, R-N.C., and has the support of two powerful committee chairmen, making it the most likely measure to prevail in the House.

It enjoys the support of many technology industry groups, said a House aide involved in the drafting. A Burr representative said on Friday that "we're still kind of putting together the final touches on the coalition."

This proposal comes as Washington is focusing more intently on spam than ever before. Bills have been introduced in every congressional session for the last five years. The Federal Trade Commission earlier this month held a three-day workshop on spam, and this week the Senate Commerce committee convened a hearing on the topic.

Big-time Internet service providers such as AOL Time Warner's America Online, Microsoft's MSN and co-branded SBC Yahoo largely applauded the legislation. EarthLink said it looked forward to working with Congress to pass antispam legislation this year.

"We are especially pleased to see strong civil and criminal penalties for fraudulent e-mail and meaningful ISP enforcement provisions," Jack Krumholtz, Microsoft's managing director of federal government affairs, said in a statement. On Wednesday, Microsoft Chairman Bill Gates sent a letter to senators advocating a multifaceted approach, including legislation, to battle spam.

AOL, the world's largest ISP, said the bill was "a great step forward in our effort to fight spam," because it adds criminal penalties to the legal arsenal while setting "rules of the road for legitimate e-mail," said AOL spokesman Nicholas Graham.

Should the bill pass, Graham said, the company would collaborate with federal and state law enforcement agencies to bring criminal charges against spammers. AOL has been suing alleged spammers for many years and has reached a number of settlements.

Critics of the bill, however, claim that it will change nothing. The biggest complaint is that the bill fails to support legal action by individuals against alleged spammers. While some states have laws that allow individuals to sue companies, critics say that individuals need greater backing by the federal government.

Detractors also criticized its provision that recipients opt out of e-mails that they consider spam. They claim the bill would create a labor-intensive process that would continue to make spam a problem for productivity.

"This is worse than no legislation," David Kramer, a partner at law firm Wilson Sonsini Goodrich & Rosati, said in an interview, because it embraces the concept that spam is here to stay. "It gives consumers no private right of action and forces them to opt out over and over again on lists that they didn't want to be on in the first place."

The bill's specifics
The legislation, seen by CNET News.com, is co-sponsored by House Energy and Commerce Chairman Billy Tauzin, R-La., and House Judiciary Chairman James Sensenbrenner, R-Wis. It says:

• Nobody may send "any commercial electronic mail message" unless it permits the recipient to unsubscribe, includes a valid return e-mail address and street address, and makes it obvious that the message is an advertisement or solicitation. If the recipient chooses to unsubscribe, the person sending the e-mail may not make contact again until a three-year period has elapsed.

• An ISP could sue for damages of $10 for each e-mail sent to someone who had "opted out," up to a maximum of $500,000. Lawsuits must be brought in federal court, and if a judge decides that the accused spammer "knowingly" violated the law, total damages would triple to $1.5 million.

• False or misleading header information would be banned. State attorneys general could sue violators and seek damages of up to $3 million. The FTC and the U.S. Department of Justice would also have jurisdiction. They would receive the additional power to sue people who don't include the necessary identification information in commercial e-mail.

• Inclusion of "sexually oriented material" in any commercial e-mail message would become a federal crime, unless the sender follows regulations to be devised by the FTC. Violators of the rule would be punished by up to two years in a federal prison. It would also become a federal crime to send any commercial e-mail that "falsifies the sender's identity."

• If an ISP were harmed by those two types of e-mail--unlawful sex-oriented messages or those with false identification--it could sue for damages of $500 for each message.

• It would become unlawful to send commercial e-mail to an address that was obtained from an automated scan of a Web site.

• No class-action lawsuits on behalf of spam recipients would be allowed.

Other bills take different approaches. One, introduced by Rep. Zoe Lofgren, D-Calif., says that people sending unsolicited commercial e-mail must label it with "ADV:" in the subject line or run the risk of being sued by the FTC. A Senate bill would make it a federal crime to use a false address when sending unsolicited commercial e-mail.

The Coalition Against Unsolicited Commercial E-mail took issue with the law enforcement measures proposed by Burr's bill. Like Kramer, the group advocates federal support for individuals suing spammers. But CAUCE would rather see a solution like the one in a bill approved Thursday by California's senate that prohibits marketers from sending bulk e-mail without recipients first opting in. The bill was modeled after a federal law that banned junk faxes, said Ray Everett-Church, board member and counsel for CAUCE.

However, Everett-Church disagreed with leaving it in the hands of states and the FTC to enforce these rules, claiming that those departments may not consider spam cases as important as those involving murder and fraud.

"The state (attorneys general) and the FTC have said that neither have resources to do any more enforcement than they're already doing," Everett-Church said in an interview.

Reuters contributed to this report.