Nobody likes a spammer. Enterprises hate them because of the hit on their mail servers. Parents hate them because they don't want their kids getting ads for Viagra and live co-ed Web-cams. So it stands to reason that spam is a natural target for politicians. Indeed, 25 states have passed legislation governing spam. But how sharp are the teeth in these laws, can you use them to reduce the amount of junk e-mail you receive, and where are the feds?
The short answers are: Not very, not yet and out to lunch.
Many states don't prohibit spam outright; instead they take aim at false and deceptive marketing practices. But fraudulent spammers make up only a fraction of the whole. And where states regulate spam directly--California, Delaware, Minnesota--jurisdiction and enforcement are problematic. Spam extends beyond states into the national and international arenas. Most state laws affect spammers that "reasonably know" that the intended recipient is a resident of the state. If you get past this stumbling block, the next step is bringing the spammer to justice. For every one you go after, there are 10 in the bush. Thus, enforcement becomes the exception, not the rule--so much for teeth. But at least the states are on the playing field. The feds are still in the dugout.
The S Files
The most promising federal legislation sharpens the ability of the Federal Trade Commission to go after fraudulent e-mail. H.R. 718, introduced Feb. 14, 2001, was moved out of the Committee on Energy and Commerce (Report 107-41;) and placed on the House of Representatives' calendar for consideration and debate. Among other things, H.R. 718 amends the federal criminal code to provide penalties for intentionally transmitting 10 or more unsolicited commercial e-mails with the knowledge that the messages contain false or misleading information on the identity of the sender. It also provides ISPs a course of action for damages against persons in violation of the proposed act and directs the attorney general to order spammers to stop sending e-mail containing sexually oriented advertisement and to delete the names and e-mail addresses of the parties who received such advertisements.
We're sure Attorney General John Ashcroft will go at this with a vengeance, but H.R. 718 falls sadly short of the mark that the European Parliament hit when it issued a Directive to member states prohibiting unsolicited commercial e-mail and the use of cookies without the explicit permission of the recipient. In effect, the EU has put in force an "opt-in" system for e-mail as well as facsimiles and automated calling systems. The opt-in requires marketers to get permission from recipients before they send unsolicited commercial advertisements. Note that EU Directives bind member states to end results. The means to those ends are left to individual members.
To match the EU's Directive, Congress should amend the Telephone Consumer Protection Act (P.L. 103-243) to include an opt-in system for spam. The act recognizes that unsolicited telemarketing campaigns and commercial facsimiles are costly nuisances to consumers and invasions of privacy. It prohibits automated telemarketing calls and bans unsolicited commercial facsimiles. Extending the act to prohibit spam unless the recipient opted in would acknowledge that spam costs recipients money too--for the storage of unsolicited commercial advertisements and the time lost in accessing, reviewing and discarding it.
Congress' failure to act continues to make the Internet an unfettered medium for businesses to advertise, short of fraud. Until the feds enter the game for real, spammers will continue to flood our inboxes with ways to lose weight, increase sexual prowess and reduce our mortgages, held in check only by a patchwork quilt of state laws and filtering technology. Given that reality, we can only hope that filtering technology improves.
What Does This Mean to You?
As an IT professional you need to make your voice heard. Contact your lawmakers and tell them you support these bills. Go to Congress.org and Senate.gov for contact information. You can even go all the way to the top: E-mail George Bush at president@whitehouse.org. You can track bills by number at thomas.loc.gov/.
--Sean Doherty, sdoherty@nwc.com
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