By-Tor
25 Nov 2003, 01:19 PM
Capping six years of federal legislative wrangling, the U.S. House of Representatives has passed antispam legislation intended to create extensive regulations for commercial e-mail.
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The Senate, which last week passed a similar bill, is expected to agree to the changes in the House bill this week. President Bush (news - web sites) has said he will sign the measure into law.
The bill, called "Controlling the Assault of Non-Solicited Pornography and Marketing Act," or CAN-SPAM, will outlaw most junk e-mail and create a "do not spam" registry for opting out of commercial messages. The law, which would overrule state antispam laws, makes violators liable for fines of up to US$250 per e-mail.
But critics call CAN-SPAM a step backward. "The primary motivating factor here was a desire to pre-empt California's opt-in spam law," said Chris Hoofnagle, Electronic Privacy Information Center deputy counsel. "Consumers would have been served if no [federal] law would have passed."
"Essentially what Congress has done is watered down protections in 30 states," he told NewsFactor.
Legal Until Unsubscribed
The California antispam law, like many such state laws, allows spammers to send e-mail only to users who have specifically opted in to receive messages. The California law is scheduled to go into effect on January 1, 2004.
Under CAN-SPAM's provisions, spammers do not need opt-in permission. The bill makes it illegal to send unsolicited e-mail to users who have opted out.
Certain types of junk e-mail are legalized under CAN-SPAM. Spammers are allowed to send an unlimited amount of commercial e-mail, as long as the e-mails are clearly labeled and include a valid postal address and an unsubscribe link.
Individuals would not be able to sue spammers under CAN-SPAM. Only ISPs, the Federal Trade Commission and state attorneys general could.
"Many states have a spam laws with private right of action, meaning an individual has a right to go to court," Hoofnagle said. "Where we've had success in dealing with cases of unwanted marketing has been in cases where individuals can go to court."
Corporate Spam Push
The motivation for lesser spam control at the federal level, Hoofnagle said, is that "there are companies who want to move into the spam space."
In the current bulk e-mail business, the majority of spam is deceptive or unfair. The bill is an effort to change that, Hoofnagle said. "The bill is not going to get rid of spam -- it's going to go after the fraudsters, in an attempt to make it a legitimate medium for other companies.
"The spam law can be seen more as a tool to move spam into the mainstream than as legislation to actually give individuals power over their in-boxes," he said.
America Goes It Alone
CAN-SPAM, like previous antispam legislation, is an American law for an international problem, according to critics.
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"In terms of enforcement, they're going to have a lot of problems," Yankee Group analyst Phoebe Waterfield told NewsFactor. "They need to cooperate internationally."
American legislation will have no effect internationally, Forrester analyst Michael Rasmussen told NewsFactor. "How do you pursue people who are out of the country?"
Spam Technology
In crafting CAN-SPAM, legislators took aim at some of the most common technologies employed by high-volume spam businesses. The bill outlaws sending spam with subject lines that are intended to mislead or deceive recipients.
It would also prohibit the automated gathering, or "harvesting," of e-mail addresses, or randomly sending mass mailings using template e-mail addresses, such as combining every common first name before a Yahoo (Nasdaq: YHOO - news) or Hotmail address.
CAN-SPAM prohibits the use of a mail server or an open relay to mislead recipients about where a spam message comes from. It also prohibits registering for five or more e-mail accounts or two or more domain names with false information and using them to send unsolicited commercial e-mail.
For a first offense, penalties include up three years in prison.
'Do Not Spam' Registry
CAN-SPAM makes it illegal to send mass e-mailings with sexually oriented material without a label that will be developed by the Federal Trade Commission. Spammers, however, can still send unlabeled mailings to recipients who opt in.
Penalties include a fine of $250,000 and up to five years in prison.
In CAN-SPAM's most sweeping antispam measure, the bill authorizes the FTC to set up a "Do Not Spam" registry for users who want to stop receiving unsolicited e-mail from any bulk e-mailer. The measure is modeled on the FTC's "Do Not Call" registry that acts to prevent unsolicited phone calls.
CAN-SPAM would prohibit mass mailings of unsolicited cell-phone messages, which thus far is a greater problem in Asia and Europe than the U.S. Spammers would be allowed to send only to cell-phone subscribers who gave specific permission.
Pressure From Users
Federal antispam legislation has been proposed at various points in the last half dozen years but never has been passed.
By some accounts, spam now comprises the majority of e-mail, and many lawmakers report pressure from constituents to pass antispam legislation. The House passed CAN-SPAM by a vote of 392-5.
I hope this isn't as "effective" a measure as the "do-not-call" list was.
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The Senate, which last week passed a similar bill, is expected to agree to the changes in the House bill this week. President Bush (news - web sites) has said he will sign the measure into law.
The bill, called "Controlling the Assault of Non-Solicited Pornography and Marketing Act," or CAN-SPAM, will outlaw most junk e-mail and create a "do not spam" registry for opting out of commercial messages. The law, which would overrule state antispam laws, makes violators liable for fines of up to US$250 per e-mail.
But critics call CAN-SPAM a step backward. "The primary motivating factor here was a desire to pre-empt California's opt-in spam law," said Chris Hoofnagle, Electronic Privacy Information Center deputy counsel. "Consumers would have been served if no [federal] law would have passed."
"Essentially what Congress has done is watered down protections in 30 states," he told NewsFactor.
Legal Until Unsubscribed
The California antispam law, like many such state laws, allows spammers to send e-mail only to users who have specifically opted in to receive messages. The California law is scheduled to go into effect on January 1, 2004.
Under CAN-SPAM's provisions, spammers do not need opt-in permission. The bill makes it illegal to send unsolicited e-mail to users who have opted out.
Certain types of junk e-mail are legalized under CAN-SPAM. Spammers are allowed to send an unlimited amount of commercial e-mail, as long as the e-mails are clearly labeled and include a valid postal address and an unsubscribe link.
Individuals would not be able to sue spammers under CAN-SPAM. Only ISPs, the Federal Trade Commission and state attorneys general could.
"Many states have a spam laws with private right of action, meaning an individual has a right to go to court," Hoofnagle said. "Where we've had success in dealing with cases of unwanted marketing has been in cases where individuals can go to court."
Corporate Spam Push
The motivation for lesser spam control at the federal level, Hoofnagle said, is that "there are companies who want to move into the spam space."
In the current bulk e-mail business, the majority of spam is deceptive or unfair. The bill is an effort to change that, Hoofnagle said. "The bill is not going to get rid of spam -- it's going to go after the fraudsters, in an attempt to make it a legitimate medium for other companies.
"The spam law can be seen more as a tool to move spam into the mainstream than as legislation to actually give individuals power over their in-boxes," he said.
America Goes It Alone
CAN-SPAM, like previous antispam legislation, is an American law for an international problem, according to critics.
*
"In terms of enforcement, they're going to have a lot of problems," Yankee Group analyst Phoebe Waterfield told NewsFactor. "They need to cooperate internationally."
American legislation will have no effect internationally, Forrester analyst Michael Rasmussen told NewsFactor. "How do you pursue people who are out of the country?"
Spam Technology
In crafting CAN-SPAM, legislators took aim at some of the most common technologies employed by high-volume spam businesses. The bill outlaws sending spam with subject lines that are intended to mislead or deceive recipients.
It would also prohibit the automated gathering, or "harvesting," of e-mail addresses, or randomly sending mass mailings using template e-mail addresses, such as combining every common first name before a Yahoo (Nasdaq: YHOO - news) or Hotmail address.
CAN-SPAM prohibits the use of a mail server or an open relay to mislead recipients about where a spam message comes from. It also prohibits registering for five or more e-mail accounts or two or more domain names with false information and using them to send unsolicited commercial e-mail.
For a first offense, penalties include up three years in prison.
'Do Not Spam' Registry
CAN-SPAM makes it illegal to send mass e-mailings with sexually oriented material without a label that will be developed by the Federal Trade Commission. Spammers, however, can still send unlabeled mailings to recipients who opt in.
Penalties include a fine of $250,000 and up to five years in prison.
In CAN-SPAM's most sweeping antispam measure, the bill authorizes the FTC to set up a "Do Not Spam" registry for users who want to stop receiving unsolicited e-mail from any bulk e-mailer. The measure is modeled on the FTC's "Do Not Call" registry that acts to prevent unsolicited phone calls.
CAN-SPAM would prohibit mass mailings of unsolicited cell-phone messages, which thus far is a greater problem in Asia and Europe than the U.S. Spammers would be allowed to send only to cell-phone subscribers who gave specific permission.
Pressure From Users
Federal antispam legislation has been proposed at various points in the last half dozen years but never has been passed.
By some accounts, spam now comprises the majority of e-mail, and many lawmakers report pressure from constituents to pass antispam legislation. The House passed CAN-SPAM by a vote of 392-5.
I hope this isn't as "effective" a measure as the "do-not-call" list was.