By Jonathan Krim Washington Post Staff Writer Thursday, October 23, 2003; Page A01
The Senate approved the nation's first federal anti-spam legislation last night after reaching a compromise that also opens the door to a national no-spam registry similar to the do-not-call list for telemarketers.
The bill, sponsored by Sens. Conrad Burns (R-Mont.) and Ron Wyden (D-Ore.), was approved 97 to 0. It targets the most unsavory senders of unsolicited commercial e-mail by prohibiting messages that peddle financial scams, fraudulent body-enhancement products and pornography.
The legislation also draws on amendments from Sens. Patrick J. Leahy (D-Vt.) and Orrin G. Hatch (R-Utah) that would criminalize the techniques used by spammers to thwart detection -- disguising identities, masking the locations of computers used to send junk e-mail and automating spam attacks.
The action comes as spam's stranglehold on e-mail communication is growing. By some estimates, spam now accounts for 60 percent of all e-mail traffic and is costing businesses and consumers roughly $10 billion per year.
In a poll released yesterday by the Pew Internet & American Life Project, 25 percent of respondents said that spam is causing them to curtail their use of e-mail.
The Burns-Wyden bill has been supported by the marketing, retailing and Internet-access industries, which argue that a federal law should be written carefully to avoid inhibiting legitimate marketers from sending e-mail advertising that consumers may want.
But several anti-spam and consumer groups have argued that the bill has too many loopholes that could enable so-called legitimate marketers to bombard consumers with unwanted e-mail.
The bill would preempt all state anti-spam laws, some of which are tougher than the Burns-Wyden bill. And it would prohibit private lawsuits against spammers, allowing suits only by providers of e-mail accounts, such as Yahoo Inc., Microsoft Corp., EarthLink Inc. and America Online Inc., all of which also market to their own members.
But after months of negotiations, the bill now includes a provision, supported by some opponents of spam, that directs the Federal Trade Commission to come up with a plan for a no-spam registry.
The registry, proposed by Sen. Charles E. Schumer (D-N.Y.) and supported by a range of groups including the Christian Coalition of America and the Coalition Against Unsolicited Commercial Email, would be similar to the FTC's do-not-call list, which prohibits telemarketers from calling any phone number that consumers place on the list.
The direct-marketing industry won a preliminary court challenge to the list, but the FTC is enforcing it pending an appeal. In the meantime, the list has been wildly popular, attracting more than 50 million numbers.
To date, however, FTC Chairman Timothy J. Muris has opposed a no-spam registry, arguing that it would be unenforceable because spammers would ignore it and that it would be hard to keep the e-mail addresses secure.
Supporters of a registry say it would at least control many ostensibly legitimate marketers that fail to honor consumer requests to be free of unwanted mail.
Schumer's plan also allows for entire e-mail domains to be put on the list, so that marketers could be prevented from sending any unwanted commercial mail to employees at a certain domain -- say, washingtonpost.com.
The bill stops short of mandating the registry, instead directing the FTC to develop a registry system within six months and to document technical hurdles.
An FTC official said last night that the agency's position on a registry has not changed and that even if a workable system could be devised, the bill does not provide for the substantial additional resources that would be required to implement it.
The official said that to protect the e-mail addresses on the list, marketers would have to submit their databases to the agency, which would then scrub them of names on the registry and return them.
"If we were to continue to believe it wouldn't work, Congress would have to change the law" to force the FTC to institute the registry, the official said.
But Schumer said that he is confident "this is a now a downhill road, as opposed to an uphill road" to getting a registry, and that the odds are high that one will be in place in a year.
The White House issued a statement yesterday supporting passage of the Burns-Wyden bill, though it did not address the registry question.
Yahoo and Microsoft, two of the largest Internet service providers, also endorsed the bill yesterday, although they have opposed the registry notion. The Coalition Against Unsolicited Commercial Email, which had criticized the bill as being weak, also gave tentative support.
A similar bill in the House -- though without a registry provision -- is still at the House Energy and Commerce Committee, where several legislators want its language strengthened.
Committee Chairman W.J. "Billy" Tauzin (R.-La.) and Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.), two of the House bill's sponsors, were embarrassed by revelations over the summer that their staffs had been working closely with the marketing and retailing industries in crafting the original version of the bill.
Some provisions have been changed, but not enough to break the logjam, said one committee staff member. Differences between a House bill and the Senate version would have to be reconciled in conference committee.
Many in the business community are particularly anxious for a federal law because they want it to supersede existing state laws that they consider draconian.
In a memo sent out Tuesday to industry organizations, the U.S. Chamber of Commerce said that a new California law set to take effect Jan. 1 would hurt "almost every type of business across the country."
The law, authored by California state Sen. Kevin Murray (D-Los Angeles), prohibits all unsolicited commercial e-mail unless consumers have first given their permission to receive it, a system known as "opt-in" and supported by consumer groups.
The congressional bills are "opt-out," meaning that companies can send e-mail but must honor consumers' requests to be free of future mailings.
Joseph Rubin, the chamber's executive director of technology and e-commerce, said many of his members fear that their marketing lists would not qualify as opt-in under the terms of the California law.
Many marketers also argue that one federal law will be easier to enforce than a patchwork of state regulations.
"It sort of boggles the mind," responded Murray, who said that no major corporation opposed his bill. "They have a rational interest in uniformity of laws, but why not do the law that is the strongest?"
(edited by gargs on 23.10.03 1218) All I have in this world is my balls and my word. And I don't break 'em for nobody.