Self-Policing Added to Spam Bill

[Dave Farber <dfarber () cs cmu edu>]

Delivered-To: dfarber+ () ux13 sp cs cmu edu
Subject: fyi, related to the spam discussion
To: dfarber () cs cmu edu
From: Jonathan Krim <KrimJ () washpost com>
Date: Fri, 19 Sep 2003 10:47:29 -0400


http://www.washingtonpost.com/wp-dyn/articles/A26599-2003Sep17.html


Self-Policing Added to Spam Bill

By Jonathan Krim
Washington Post Staff Writer
Thursday, September 18, 2003; Page E01

One of the primary bills in Congress to crack down on spam e-mail contains 
a new provision that would shield bulk e-mailers from penalties if they 
agree to police themselves, raising new questions about the extent to which 
industry is influencing the legislation.

According to a revised draft of a bill being circulated to members of the 
House Energy and Commerce Committee, bulk mailers could form a 
self-regulatory group that would maintain anti-spam standards of conduct 
similar to those in the bill. Any member of the organization -- which would 
have to be approved by the Federal Trade Commission -- would be exempt from 
legal penalties that otherwise would apply to nonmembers.

The idea of a self-governing organization has been supported by several of 
the big Internet e-mail account providers, most particularly Microsoft 
Corp. The theory is that the group would employ an independent third party 
that could issue an electronic seal of approval for "legitimate" senders of 
commercial e-mail, thereby making it easier for computer users to filter 
out mail from unsavory or fraudulent spammers.

Microsoft has been working with America Online Inc., Yahoo Inc. and 
EarthLink Inc., all of which market to their members, on such a system.

"It's certainly something we've pushed for," said Microsoft spokesman Sean 
Sundwall, though he declined to say whether the company had any direct 
conversations with the bill's sponsors. The direct-marketing industry 
already has a similar program in place for its members. Representatives of 
the Direct Marketing Association did not return calls for comment.

But some consumer groups, anti-spam organizations, state prosecutors and 
legislators were taken aback by the idea of making it law by adding it to a 
bill sponsored by Reps. Richard Burr (R-N.C.), W.J. "Billy" Tauzin (R-La.) 
and F. James Sensenbrenner Jr. (R-Wis.).

"They are writing the law so that it places them where they think they 
belong: above it," said Jason Catlett, head of Junkbusters Inc., an 
anti-spam group

Ken Johnson, a Tauzin spokesman, responded that the self-regulation plan 
improves the bill because it creates a grievance process for individual 
consumers who might otherwise have trouble getting the attention of law 
enforcement authorities when marketers are continuing to target them.

"The FTC does not have the resources to pursue individual, minor 
complaints," Johnson said. The proposal establishes a complaint mechanism 
that the self-policing group must follow.

The new provision is the latest twist for the bill, which is likely to be 
the major piece of spam legislation to emerge from the House because of the 
sponsors' powerful positions: Sensenbrenner is the chairman of the 
Judiciary Committee; Tauzin, of the Energy and Commerce Committee.

Revelations in May that lobbyists from the marketing, retailing and 
Internet provider industries played a key role in drafting the original 
bill forced its sponsors to reshape it after it was criticized as being weak.

Since then, negotiations have been ongoing with legislators who want a 
tougher bill, led in part by Rep. Heather A. Wilson (R-N.M.), who has a 
competing bill that has the bipartisan co-sponsorship of 67 representatives.

Congressional negotiators had been finding some common ground, sources 
said, adding a Wilson-backed provision that requires the labeling of 
pornographic content in e-mail. But the inclusion of the self-regulation 
idea has undermined that progress and put the bill in "purgatory," 
according to one congressional staffer.

"It's a step backward," said a Wilson spokesperson. "It continues to 
protect spammers at the expense of consumers."

The bill requires bulk mailers to honor consumer requests to stop receiving 
unsolicited e-mail and makes it illegal for spammers to disguise their 
whereabouts. It also makes illegal the practice of electronic "harvesting" 
of e-mail addresses, in which special software is used to find e-mail 
addresses on Web pages, copy them and add them to bulk mailing lists.

Even before the addition of the self-regulation provision, anti-spam 
activists said the bill was full of loopholes. Some consumer groups and 
state lawmakers are especially concerned that the bill would supplant 
stronger state anti-spam laws and prevent individual consumers from suing 
spammers. Supporters argue that federal rules are the only way to ensure 
that legitimate marketers have clear rules that don't change from state to 
state.

In many respects, the House bill -- minus the self-regulation plan -- 
mirrors a Senate bill that has passed through committee, though it is 
unclear when it will be considered by the full Senate. The bill, sponsored 
by Conrad Burns (R-Mont.) and Ron Wyden (D-Ore.), is supported by the 
marketing and Internet provider industries.

Another Senate bill, sponsored by Sen. Charles E. Schumer (D-N.Y.), would 
create a national do-not-spam list similar to the recently instituted 
do-not-call list for telemarketers. But the FTC so far has opposed the 
idea, and no similar bill has been introduced in the House.


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