Spamming gets a closer look

Information Management Journal, Mar/Apr 2002 by Tillman, Bob

The U.S. government is taking more action than other countries against unwanted e-mail

Receiving unwanted e-mail is a common concern for computer users around the world, and legislators are taking action. Unwanted e-mail is particularly troublesome in the United States, where protecting individual privacy has long been the goal of legislation. As a result, proposals to prevent unsolicited e-mail, otherwise known as spam, have begun to reemerge for possible legislative action in the second session of the 107th U.S. Congress. Legislative activity, however, is likely to be a replay of the 106th Congress, when the House of Representatives passed anti-spamming legislation while the Senate did nothing. The House has traditionally reacted quickly to voter concerns about spamming, while the Senate takes much longer to discuss and debate the matter.

The most recent development in anti-spamming legislation was revealed by Reps. Bob Goodlatte (R-- VA) and Rick Boucher (D-VA), cochairmen of the Congressional Internet Caucus, who indicated that the House is likely to pass anti-spamming legislation this year. Negotiations to bring a bill to the House floor on September 12, 2001, were stalled by the terrorist attacks of September 11.

The Debate about Spamming

In addition to the obvious annoyance factor, proponents for a crackdown on spam point to the cost shifting that e-mail makes possible, forcing the recipient who pays for online service to bear the economic burden associated with spam. Proponents also point to the propensity of spam to contain fraudulent claims or pornographic material, and the waste of private resources in terms of time required for the recipients to identify and delete unsolicited e-mail, and the unproductive use of bandwidth. There is increasing concern that spam will harm legitimate e-mail, now an essential business tool. In 2000, the average U.S. e-mail account received 440 unsolicited emails offering pornography, fake diplomas, empty lottery jackpots, and other deceptive offers. In 2001 that total rose to 570 unsolicited e-mails, and the growth rate is expected to rise 200 per year to nearly 1,500 e-mails annually by 2006. Several states have enacted antispam legislation to allow consumers or Internet service providers to recover damages relating to spam.

The House has given much attention to the spamming topic; the Committee on Energy and Commerce and the Committee on the Judiciary have both held hearings and reported on legislation for floor consideration. Further action will require the House Committee on Rules to determine how the two bills will be presented to the full House for debate. But while all this has taken place, the Senate has taken no significant action.

The committees are attempting to balance limitations on unsolicited commercial e-mail with the right of free speech on the Internet and the need for a level playing field for e-- commerce marketing and communications. In the legislative report H.R. 718, the Committee on Energy and Commerce acknowledged that there is a right of free speech on the Internet. It also stated that "in legislating against certain abuses on the Internet, Congress should be very careful to avoid infringing in any way upon constitutionally protected rights, including the rights of assembly, free speech, and privacy."

The committee went on to say that "unsolicited commercial electronic mail can be an important mechanism through which businesses advertise and attract customers in the online environment." At the same time, the committee recognized that receiving spam may result in "costs to recipients who cannot refuse to accept such mail and who incur costs for the storage of such mail or for the time spent accessing, reviewing, and discarding such mail."

Bills on the Horizon

Several bills on unsolicited commercial e-mail have been introduced in the 107th Congress.

Common elements in many of the various bills include a requirement that unsolicited commercial e-mail have an identifier indicating source and content and a means for a recipient to prevent receiving further e-mail from this source or its affiliates. Antispamming legislation may also require markers indicating if unsolicited e-mail contains sexually oriented material and impose penalties for failure to comply with these requirements.

In the House, the two principal bills are Rep. Wilson's H.R. 718 and Rep. Goodlatte's H.R. 1017. The Wilson bill would require unsolicited e-mails to include a valid return e-mail address, offer the recipient a way to opt out of future unsolicited e-mails from the same sender, and follow the posted policy of the recipient's Internet service provider. The Wilson bill would also give Internet service providers protections and rights to file suit against violators. The Goodlatte bill would require unsolicited e-mails to include correct routing information but would not establish requirements for transmission or protect Internet service providers. Consumers and businesses would generally prefer the Wilson bill because of its opt-out provisions.