Spam fight divides on party lines

Once bipartisan, the debate over how to reduce the flow of bulk e-mail is now pitting Democrats against Republicans, which may complicate enactment of federal legislation.

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
5 min read
Once thoroughly bipartisan, the debate in Washington over how to reduce the flow of bulk e-mail is now pitting Democrats against Republicans--a development that threatens to complicate enactment of laws regulating spam.

Politicians on Capitol Hill have realized that their constituents are fed up with the ever-increasing deluge of unsolicited e-mail, and most legislators appear to favor Congress taking some sort of action. But disagreements about what action is wisest have erupted along traditional political fault lines that pit Republican values against those cherished by Democrats.

On Wednesday, bickering erupted during a meeting of two House Energy and Commerce subcommittees over which of two bills--one backed largely by Democrats and one supported almost entirely by Republicans--would do a better job of reducing spam and punishing spammers.

"This committee is moving in the wrong direction," said Rep. Bart Stupak, a Michigan Democrat who is one of the sponsors of his party's Anti-Spam Act, better known as the Wilson-Green bill. Twenty of the bill's sponsors are Republicans, while 33 are Democrats.

In an effort to trumpet the Wilson-Green bill, Stupak asked a panel of witnesses that included representatives of America Online, Amazon.com, EarthLink and Microsoft: "Does anyone question whether the Wilson-Green approach is the preferable approach?"

That's a big difference from a few years ago. In July 2000, the House of Representatives approved an earlier version of the Wilson-Green bill by an overwhelmingly bipartisan vote of 471-1. But because the Senate never acted, there is no federal law restricting spam on the books today. The Wilson-Green bill was reintroduced last month.

One complaint Stupak lodged against the Republican-backed rival bill is that it expressly prohibits class action lawsuits, a favorite of trial lawyers, whose deep pockets make them hugely valued contributors to the Democratic Party. 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, giving a total of $14.5 million to the Democrats.

Rep. Gene Green, D-Texas, who co-authored the Wilson-Green bill, said during Wednesday's hearing that the "Wilson-Green bill is about closing loopholes and putting teeth in antispam policy."

Long-standing disputes
At one level, this political spat is over taking credit for new laws, and politicians vying to ensure that their name appears on popular legislation. Examples of similarly named bills that have entered the public's consciousness in the past include the McCain-Feingold law, the Gramm-Leach-Bliley law (Leach bitterly opposed it until it became clear that the measure was going to pass), and Gramm-Rudman-Hollings (Hollings' name was added near the end, when the two Republicans felt they needed to tout support from a Democrat).

At another level, however, the spam dispute highlights a deep and long-existing ideological rift between the two major parties over how to regulate businesses, how much power to grant federal bureaucrats, and whether to rely more on class action lawsuits or criminal prosecutions as a check against corporate malfeasance.

The only serious competition to the Wilson-Green bill is the Reduction in Distribution of Spam Act, which has 21 co-sponsors, 19 of whom are Republican. More importantly, the measure is backed by two powerful Republican leaders--Energy and Commerce Chairman Billy Tauzin, R-La., and House Judiciary Chairman James Sensenbrenner, R-Wisc.--who control the two committees that any antispam legislation must pass through.

Their RID Spam Act is less regulatory. It includes criminal sanctions for spammers who use fraudulent headers or send unlabeled pornographic solicitations. But it also sounds traditional Republican themes: It prohibits class action lawsuits, is not as detailed and specific, and does not grant the Federal Trade Commission as much authority as the Wilson-Green bill would.

Rep. Richard Burr, R-N.C., the primary author of the RID Spam Act, on Wednesday invited supporters of the rival bill to join him, warning that interparty squabbling portends antispam gridlock. "This will not be perfect," Burr predicted. "But I want to make sure that when we complete the process, the House passes a bill this time."

Tauzin, the committee's chairman, struck a conciliatory note and predicted that differences would be smoothed out in the next few weeks. "We're getting closer and closer to a final product," Tauzin said.

Opt-in vs. opt-out
A key similarity between the Wilson-Green bill and the RID Spam Act is that both permit marketers to send unsolicited bulk mail to any number of recipients, provided that the sender includes a way to be removed from future mailings and honors "opt-out" requests. That idea has been criticized in the antispam community for granting tens of thousands of e-mail marketers the right to spam consumers repeatedly until they click on an "unsubscribe" link.

That criticism is reaching sympathetic ears among left-leaning Democrats, who have become dissatisfied with both bills and have begun to agitate for a more regulatory approach. They envision an "opt-in" requirement--bitterly opposed by corporations--that would prohibit any unsolicited commercial e-mail unless a prior business relationship exists. Another related proposal would grant individuals the right to sue spammers individually--an idea permited by a Senate bill introduced by Sen. Chuck Schumer, D-N.Y.

Christopher Murray, legislative counsel for the liberal group Consumers Union, testified that the RID Spam Act "needs to be improved because it lacks an 'opt-in' provision and private right of action for consumers at the same time that it excludes class action suits."

In the Senate, Vermont's Patrick Leahy, the senior Democrat on the Judiciary committee, has endorsed that idea. In a floor statement last month, he suggested the creation of "an 'opt-in' system, whereby bulk commercial e-mail may only be sent to individuals and businesses who have invited or consented to it."

Burr, champion of the RID Spam Act, dismissed the idea Wednesday as thwarting legitimate transactions. "We'd like to get the discount hotel offers," Burr said.

The topic also came up during another spam hearing Tuesday, at which Rep. Robert Scott, D-Va., wondered whether "there should be an unlimited right to fill up your mailbox with e-mail."

Joe Rubin, director of public and congressional affairs for the U.S. Chamber of Commerce, disagreed. "I wouldn't be upset to see a cheap airfare e-mailed to me," he said. "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."

Another possible obstacle to enacting spam laws speedily is the effort to broaden any legislation to encompass unsolicited marketing messages sent to wireless devices and cell phones through means other than e-mail. Both current bills regulate only "commercial electronic mail messages," not instant messages or short text messages. (Neither current bill regulates any type of spam from politicians, nonprofit groups, charities or religious organizations.)

Rep. Ed Markey, D-Mass., said he would try to insert a general wireless-spam prohibition because any law "should deal in a comprehensive way with the wireless world, in an anticipatory way, to avoid having the same mess created... Isn't this the time, the place to do it? We may not return to the issue for four or five years."