Congress fights over spam opt-in rules

Lawmakers and antispam activists argued over whether e-mail users should have to opt in to receiving commercial e-mail and whether they should have the right to sue spammers during a hearing on a bill in the U.S. House of Representatives that includes neither protection.

Lawmakers and antispam activists argued over whether e-mail users should have to opt in to receiving commercial e-mail and whether they should have the right to sue spammers during a hearing on a bill in the House of Representatives that includes neither protection.

At least one lawmaker and a representative of the Chamber of Commerce Tuesday objected to a Consumers Union request that an antispam bill include a requirement that senders of commercial e-mail get permission from customers before e-mailing them and a provision allowing e-mail users to team up in class-action lawsuits against spammers.

The Reduction in Distribution of (RID) Spam Act of 2003, the subject of a hearing before the House Judiciary Committee’s Subcommittee on Crime, Terrorism and Homeland Security, allows ISPs, but not individuals, to sue spammers. It also requires e-mail users to opt out of unsolicited commercial e-mail if they don’t want to receive future messages.

Witnesses from the Department of Justice and the Chamber of Commerce offered support for RID Spam, with Joe Rubin, senior director of public and congressional affairs for the Chamber, saying RID Spam’s prohibitions against sending bulk e-mail with wrong or masked identifying information will help clean up spam sent from “illegitimate” businesses.

Requiring that customers opt in would hinder businesses’ ability to share information on their products, said Representative Bob Goodlatte, a Virginia Republican and cosponsor of RID Spam. “That’d be a nightmare for legitimate American businesses,” he said.

And allowing class-action lawsuits against spammers would be an “abomination” that would punish large businesses that make a mistake by sending out an unwanted e-mail, he added. “Some attorney will get $5 million, $10 million, $15 million in attorney’s fees for successfully extorting a legitimate business for doing that,” Goodlatte added.

But Chris Murray, legislative counsel with Consumers Union, questioned how Congress could decide how one piece of unsolicited commercial e-mail was spam and another wasn’t. “The difference between a legitimate business and a illegitimate business is a fine line,” Murray added. “I think it’s clear what we’re talking about here is not removing the Internet as an advertising vehicle. Consumers could still get pop-up ads.”

While some subcommittee members questioned whether the RID Spam Act went far enough in fighting unsolicited commercial e-mail, one lawmaker questioned if antispam legislation was needed at all. Representative Maxine Waters (D-Calif.) questioned why the U.S. government wants to censor the Internet.

“I believe we should not try to create a definition of spam and figure out what is meaningful and what is not meaningful (e-mail),” she said. “I’m just not in the business of that kind of censorship.”

Waters seemed to be in the minority on the subcommittee, with most members appearing to support RID Spam or something even tougher. At least two questioned why the bill forces e-mail users to opt out of spam instead of opting in to commercial e-mail.

RID Spam requires that bulk commercial e-mail include a working mechanism for receivers to opt out of future e-mail. It also has a prohibition on electronically harvesting e-mail addresses from Web sites and a requirement that sexually oriented e-mail be labeled as such. The bill allows fines of $10 per e-mail for sending fraudulent spam, with a limit of $500,000, or $1.5 million if a judge determines the spammer violated the law knowingly or willfully.

States can also seek damages under the bill, with a limit of $100 per e-mail or a maximum of $3 million.

Rubin drew a distinction between unsolicited commercial e-mail from “illegitimate” businesses and legitimate ones. The bill’s enforcement against spammers who hide their identities would target the majority of spam sent, he said. “Criminal penalties can be an effective backstop,” he said in support of RID Spam. “They can help with the worst of the worst. Once you get rid of all the bad stuff, get rid of the porn, get rid of the fraud, then Congress could come back and reconsider the issue.”

If fraudulent or pornographic spam is significantly reduced, then e-mail users might not object to unsolicited e-mail from legitimate companies, Rubin said, but Congress should deal with those issues first.

However, Representative Bobby Scott (D-Va.) questioned how Rubin could distinguish between legitimate and illegitimate unsolicited commercial e-mail. The problem with spam is the amount of it, not just that some of it lacks proper sender identification, Scott said.

“Some of us don’t think fraud is the only problem going on,” Scott said. “Some people are offended by legitimate companies filling up their in-boxes. Is it your position that any business should have the right to send unlimited spam just because it’s legitimate? Is it your position that an honest vendor has an unlimited right to spam?”

Rubin answered that a line should be drawn between types of businesses sending bulk e-mail. “If (honest businesses) obtain your e-mail addresses legitimately, we don’t think they should be limited in their communication to their customers,” he said.

Consumers shouldn’t have to act on every piece of spam, countered Representative Mark Green (R-Wisc.). “Someone who goes to his or her laptop in the morning doesn’t want to have to, each time they see a piece of spam, take a look at it, decide whether or not they want to receive future solicitations … and take action,” Green said. “Why should someone be forced to do that?”

The U.S. Senate Commerce, Science and Transportation Committee approved its own antispam bill, Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM), in June, and two House subcommittees will examine a variety of antispam proposals during a hearing Wednesday. A staff member of the Subcommittee on Crime, Terrorism and Homeland Security said the subcommittee plans to move the RID Spam bill, sponsored by Representative Richard Burr (R-N.C.) through the committee as quickly as possible.