The United States Sentencing Commission (USSC) is scheduled to meet this week to review public comment on how to enforce the Controlling the Assault of Non-Solicited Pornography and Marketing Act (Can-Spam).
President George W. Bush in December, establishing nationwide standards for sending unsolicited commercial e-mail. Supporters said the law , while critics complained that it by invalidating a patchwork quilt of state law that criminalized spam more generally.
Now it's up to the USSC to refine the sentencing portions of the law.
In order to set those guidelines, the USSC is weighing the testimony of people who submitted written advice, following a Jan. 14 notification in the Federal Register.
The USSC said it received about a dozen pieces of written testimony from both individuals and groups.
In its request for comment, the USSC floated a trial balloon of using fraud-sentencing guidelines as a model for the new spam law.
Not as bad as fraud
Two groups, the National Association of Criminal Defense Lawyers (NACDL) and the Electronic Frontier Foundation (EFF), tried to shoot down that proposal.
Violations of Can-Spam "do not inflict nearly the same level of harm, involve the same degree of privacy invasion or constitute the same seriousness of fraud, as do other criminal offenses referenced to (in) the guidelines suggested in the commission's request for comment," the commentators wrote in a letter dated March 2. "The current proposal, as we see it, is fraught with duplicative and overly severe treatment of the offense."
The USSC, formed in 1985, after Congress passed the Sentencing Reform Act of 1984, amends the penalty portions of new laws in an attempt to even out sentencing disparities among courts across the nation.
Every year, the USSC evaluates newly defined federal crimes and establishes guidelines based on two factors: criminal history, which is categorized into six classes, and seriousness of the offense, which is divided into 43 levels.
Robbery, for example, starts off with a base seriousness level of 20. But if a robber makes off with more than $50,000 worth of goods, sentencing guidelines add two levels. That translates into 25 percent more time served. If carjacking or bodily injury is involved, that adds another two levels.
Liberty at issue
The commission expects to vote next month to send Can-Spam amendments to Congress by its May 1 deadline. The amendments take effect Nov. 1, unless Congress acts to change them. If the commission misses its May 1 deadline, the amendments will have to wait a full year for Congress to consider them.
Other respondents to the USSC's request for comment concurred with the opinion the NACDL and EFF submitted, saying the guidelines erred in comparing Can-Spam violations to crimes involving fraud.
"We're talking about deprivations of liberty," said Eric Goldman, an assistant professor at Marquette University Law School. "You can violate Can-Spam, if you register a domain name with false registration information and send a hundred commercial e-mails. For that, we should throw them in jail and toss the key?"
In a letter dated March 11, Goldman and Marquette Prof. Michael O'Hear argued that the commission should set spam-specific sentencing guidelines, rather than modeling them on existing guidelines for fraud.
Among their proposals is a scale based on the number of e-mails sent. Under that system, someone who sent spam to a billion recipients would get the statutory maximum of three years, while someone who sent fewer than 250,000 messages would not have their base-level sentence increased.