- The Washington Times - Thursday, July 10, 2003

Pressure from marketers and some Internet service providers is undercutting efforts by lawmakers to pass tough antispam legislation.

Lobbies from Microsoft, America Online and other Internet companies have made it difficult to gain the votes needed to pass strong laws against unsolicited commercial e-mail, legislators say. Threats of court challenges from direct marketers have added pressure.

But members of Congress say a spam bill must pass this year, and some say they are sponsoring bills they wish had stronger provisions.

Spam makes up nearly half of all e-mail sent. It costs businesses about $10 billion each year in services and lost productivity, according to Ferris Research.

The urgency to pass a bill this year, coupled with opposition from industry, has led to the emergence of legislation not strong enough, say antispam groups including the Coalition Against Unsolicited Commercial E-mail.

“The desire just to do something is extremely dangerous,” said Ray Everett-Church, legislative counsel for the group.

Congress is reviewing about a dozen bills, many of which include a provision that would allow consumers to “opt out” if they don’t want to receive spam.

The Anti-Spam Act of 2003, sponsored by Reps. Heather A. Wilson, New Mexico Republican, and Rep. Gene Green, Texas Democrat, is one such bill that has garnered strong support in the House.

It would allow consumers to opt out of receiving further unsolicited e-mail from marketers, but has faced opposition from antispam groups, which say it is inconvenient and ineffective to respond to each e-mail. They say an “opt-in” provision would be more effective.

Mr. Green said he agrees.

“I would prefer, philosophically, an opt-in,” he said. “But policywise, we don’t have the support. And it’s just hard to do.”

The House Energy and Commerce Committee is considering combining the Wilson-Green bill with the Reduction in Distribution of Spam Act, or RID Spam Act, sponsored by Reps. Richard M. Burr, North Carolina Republican, and F. James Sensenbrenner Jr., Wisconsin Republican. The two bills have similar provisions.

The House passed an antispam bill sponsored by Mrs. Wilson and Mr. Green last year, but it fell short of passage in the Senate. The previous year, the two sponsored a bill that was due for a vote but was placed on the back burner after the September 11 attacks. Since then, Mr. Green said, spam has grown exponentially.

“I want the toughest bill we can pass,” he said. “We can still overreach and not have enough votes.”

Sen. Charles E. Schumer, New York Democrat, proposed the creation of a “Do Not Spam” list similar to the “Do Not Call” registry implemented by the Federal Trade Commission last week.

Mr. Schumer’s bill, called the Spam Act, received the endorsement of the Christian Coalition and many antispam groups, but those close to the process say it lacks some key details and faces an uphill battle.

Microsoft, AOL and others have lobbied against the creation of a Do Not Spam list, instead pushing for legislation that would make deceptive spamming illegal and would allow legitimate businesses to use unsolicited e-mail as a marketing tool. Microsoft, in particular, has lobbied heavily against a Do Not Spam list at the state level.

The Direct Marketing Association has said it would challenge in court any Do Not Spam registry on First Amendment grounds. The trade association has blocked laws preventing direct mail and filed a lawsuit in February to stop the creation of the Do Not Call list.

The Senate Commerce, Science and Transportation Committee last month passed the Can-Spam Act, proposed by Sen. Ron Wyden, Oregon Democrat, which would enact stiff penalties for deceptive spamming but not provide the ability to opt out of e-mails. The Can-Spam Act asks the FTC to look into the feasibility of the “Do Not Spam” list but does not mandate its creation.

Antispam groups say lawmakers are taking the easy way out by endorsing noncontroversial, passable legislation.

“I think legislators may be receptive to an opt-in registry,” said David Sorkin, associate professor of law at the John Marshall Law School in Chicago and founder of the SpamLaws.com Web site.

But he said many lawmakers may be unwilling to face the resistance of getting such bills passed or face the potential legal battles.

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