- The Washington Times - Monday, December 8, 2003

The House of Representatives yesterday unanimously approved the first national effort to curb the flow of unsolicited e-mail messages, known as spam.

The move to pass the Can Spam Act, which bans the most deceptive forms of unsolicited e-mail messages, likely ends more than four years of wrangling to get an antispam bill passed in Congress. The Senate overwhelmingly voted in favor of the bill last month. President Bush is expected to sign the bill into law by the end of the year.

Congress and members of the marketing industry have hailed the bill as a key component in the fight against spam, which makes up more than half of all e-mail sent worldwide.

But industry and legal analysts warned that the bill will do little to stop the rising tide of spam.

Critics of the Can Spam Act said spammers likely will ignore any new regulations and continue routing e-mail overseas to avoid detection. Others will continue to spam, assuming the United States will not devote the time and resources needed to enforce the law.

“Can Spam will likely not change spammer behavior,” analysts from Gartner Inc., a Stamford, Conn.-based technology research firm, wrote last week. “Should spammers feel at risk, the spam e-mail will be sent through an offshore [Internet provider], outside U.S. jurisdiction.”

More than 80 percent of spam comes in the form of deceptive advertisements for products such as impotence treatment, pornography or get-rich-quick schemes. Spam costs businesses several billion dollars each year in lost productivity and services, analysts say.

The Can Spam Act calls for a ban on the most deceptive forms of spam and requires e-mail marketers to comply with any request to opt out of e-mail advertisements. The bill also asks the Federal Trade Commission to consider creating a national “do-not-e-mail” registry.

“[E-mail users] should not expect federal legislation to solve their inbound spam … problem,” Gartner said.

Some critics of the regulations doubt the United States will pursue spammers with the zeal needed to stop them. Although 35 states have statutes against spam, none has resulted in the arrest of spammer.Analysts say that is because state attorneys general can’t justify pursuing a spammer over purveyors of more serious crimes.

California and other states have enacted laws allowing individual citizens to sue spammers. Such a provision is not included in the Can Spam Act.

Legal analysts say enforcement would be a challenge because few spammers have the deep pockets to pay any settlement.

“Even if the spammers stay in the U.S., it will be difficult to enforce the law against them. It is one thing to sue a spammer; getting him to pay a fine or judgment is another matter,” Anita Ramasastry, a director of the Shidler Center for Law, Commerce & Technology, says in a column on the Find Law Web site (www.findlaw.com).

Other critics, including the nonprofit Coalition Against Unsolicitied Commercial E-mail and members of California’s state legislature, said Congress should have passed a law banning all unsolicited e-mail, not just the most deceptive kind.

Supporters of the Can Spam Act acknowledge the bill’s imperfections but say many of the worst spammers can be stopped. Sen. Ron Wyden, Oregon Democrat and a key sponsor of the bill, has said the government plans to bring action against several spammers once the bill becomes law.

A flurry of lawsuits against spammers would be a great deterrent, supporters say.

Many antispam groups and state attorneys general oppose the Can Spam Act because it would pre-empt tougher state laws.

The Direct Marketing Association and other advertising groups lobbied for the pre-emption language, arguing that compliance with varying state laws would be too cumbersome.

“Is this bill going to solve everything? No, but it will make a big difference,” said Sen. Charles E. Schumer, a New York Democrat and co-sponsor of the Can Spam Act.

“If new things are needed, we will add them.”


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