Lawmakers debate antispam plan

The Bush administration urges Congress to enact a new law criminalizing pornographic and fraudulent spam. Lawmakers spar on whether an "opt in" or "opt out" approach is better.

Declan McCullagh
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.
3 min read
The Bush administration on Tuesday urged Congress to enact a new law criminalizing pornographic and fraudulent spam.

William Moschella, an assistant attorney general, said the Department of Justice supports a bill called the Reduction in Distribution (RID) of Spam Act. "We at the department believe the legislation addresses the most difficult types of e-mail to address, and that is the fraudulent and the pornographic," Moschella told a House of Representatives subcommittee. "And for that reason, we're very supportive."

If the RID Spam Act, which has been endorsed by AOL Time Warner and Microsoft, were to become law, it would require warning labels on unsolicited commercial e-mail and would prohibit falsifying e-mail headers. Violators would be punished by fines and, depending on the circumstances, up to two years in prison.

At Tuesday's hearing, members of the Judiciary subcommitee on crime seemed to agree that criminal penalties were necessary. But they sparred over whether an "opt in" approach is better than the bill's current "opt out" requirement. One of the RID Spam Act's sections permits anyone to send non-fraudulent spam to any number of recipients--as long as the messages contain a "clear and conspicuous" way to decline future mailings.

Rep. Robert Scott, D-Va., wondered if "there should be an unlimited right to fill up your mailbox with e-mail."

Antispam activists have criticized the RID Spam Act for pre-empting state laws against spam, which in some cases are far stricter, and for granting many thousands of e-mail marketers the right to send e-mail messages to consumers until they click on an "unsubscribe" link.

Rep. Bob Goodlatte, R-Va., defended the bill's opt-out approach. Goodlatte said that of the physical junk mail he gets, "maybe 10 percent of it is something that I have some interest in. For that reason alone I think an opt-out approach is the best solution here."

Joe Rubin, director of public and congressional affairs for the U.S. Chamber of Commerce, agreed. "I wouldn't be upset to see a cheap airfare e-mailed to me," he told the subcommittee. "If Sears sends me an e-mail regarding a discount on a lube job at Sears, that's something that most consumers probably won't be upset about."

During one exchange, the spam discussion echoed the traditional divide between the two major parties over class action lawsuits and trial lawyers. An analysis performed by Common Cause for the 2000 election cycle calculated that trial lawyers favored the Democratic Party over the Republican Party by a 40 to 1 margin for soft money contributions.

Moschella said the Department of Justice "has not taken a position on opt-in versus opt-out."

Class actions?
Chris Murray, legislative counsel for the Consumers Union, took issue with the bill's opt-out section, saying opt-in is sufficient for legitimate businesses. Murray also criticized a portion of the bill that lets Internet service providers sue spammers while prohibiting class-action lawsuits.

"Class-action enforcement is the only way we're going to clean this up," Murray said.

Goodlatte, however, predicted that civil penalties imposed on spammers--instead of criminal sanctions--will simply cause them to flee the country to escape paying judgments.

While many states have enacted laws regulating spam, the federal government has not. The RID Spam Act has the backing of two powerful committee chairmen: House Energy and Commerce Chairman Billy Tauzin, R-La., and House Judiciary Chairman James Sensenbrenner, R-Wis., making it a strong contender to be voted on by the House this year.