- The Washington Times - Tuesday, December 16, 2003

President Bush yesterday signed into law the first federal effort to curb unsolicited e-mail, criminalizing fraudulent spam and empowering the Federal Trade Commission (FTC) to create a national “do-not-e-mail” registry.

The signing of the Can Spam Act comes after four years of debate by lawmakers over the best way to fight the growing volume of spam, which some say composes nearly 60 percent of all e-mail worldwide. Most spam comes in the form of fraudulent advertisements for everything from diet pills and mortgage loans to pornography.

Under the law, which takes effect on Jan. 1, spammers could face fines of up to $6 million and up to five years in prison for sending unsolicited e-mail with false subject lines, headers or routing information. It still would be legal to send an unsolicited commercial e-mail to anyone, as long as the e-mail is not misleading and allows for recipients to “opt out” of future solicitations.

“Signing this bill is a very good step,” said Gary Betty, chief executive officer of Earthlink, the nation’s third-largest Internet service provider. “It gives us another giant arrow in our quiver.”

But many spam foes blasted the law.

“This law does not stop a single spam from being sent. It only makes that spam slightly more truthful,” said Scott Hazen Meuller, chairman of the nonprofit Coalition Against Unsolicited Commercial E-mail. “It also gives a federal stamp of approval for every legitimate marketer in the U.S. to start using unsolicited e-mail as a marketing tool.”

Spam foes supported a stricter measure, such as California’s antispam law that makes it illegal to send e-mail ads to anyone in the state without their permission. The law also allowed individuals to sue spammers.

But most provisions in the California law, as well as many of the other 36 state laws, now are pre-empted by the federal statute. The marketing industry pushed for a federal standard.

State laws addressing fraudulent spam, such as the one recently enacted in Virginia, are not pre-empted by the federal law.

Some other countries have followed the California model, instituting an “opt-in” standard. But marketers campaigned for an “opt-out” standard, arguing that unsolicited e-mail should be protected under the First Amendment.

An opt-in standard “would cut out a lot of communications that people want,” said Ron Plesser, an attorney for Piper Rudnick, who represented the Direct Marketing Association before Congress. “Many people will want to receive this e-mail. Consumers have a right to be told they have a right to opt-out, and we think that’s manageable.”

Members of Congress said the law will stop the worst spammers if enforcement actions are made quickly.

“We’re going to be revisting this every few weeks,” said Sen. Ron Wyden, Oregon Democrat and a lead sponsor of the Can Spam Act. “The spammers are looking to see if this is a feel-good effort or if this is something real.”

State laws have, for the most part, not been enforced. But Virginia authorities last week indicted two North Carolina men on four felony counts of sending fraudulent spam. The indictments were the first under an antispam law.

Under the new federal law, the FTC is required within six months to file a plan for creating a “do-not-e-mail” registry, similar to the recently enacted “do-not-call” registry designed to fend off telemarketers. If the FTC cannot file a plan, it will present a report outlining the technical and logistical hurdles to creating the registry.

The FTC has been working toward a solution and met earlier this year with representatives from Unspam, a Chicago-based company that has developed technology to make the list.

“Because most spammers are not legitimate, the attractiveness of a … registry is in doubt,” said FTC Chairman Timothy Muris, in an online chat hosted by the White House yesterday. “We will perform an objective study to see if the difficulties of a registry can be overcome so that consumers would benefit.”

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