Spam Sucks

October 23, 2003

The U.S. Senate realized that spam is not just a mere inconvenience, but a burden on interstate commerce and passed (97-0) S. 897, a bill to regulate spam . Unfortunately, if enacted into law, this bill would not only do little to effectively curtail spam, but could hamper state anti-spam actions.

My first problem with this bill is not unique to this bill, but is one shared by most modern legislation. This bill is titled the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003', or the 'CAN-SPAM Act of 2003.'" (§1). Please, make the unabated spread of awkward cutesy acronyms stop already.

The other shortcomings of this act are significant and substantive. The key problem is that in §2(b)(3), the Senate determines that it is sufficient protection only that consumers are given the ability to opt-out.:"recipients of unsolicited commercial electronic mail have a right to decline to receive additional unsolicited commercial electronic mail from the same source." In other words, companies are free to send unsolicited email, so long as they provide a functional, clear and conspicuous unsubscribe option. The burden for avoiding unwanted commercial email falls on the individual to unsubscribe, rather than providing effective constraints to prevent marketers from sending unwanted email. Users have to affirmatively execute their right to decline further unsolicited commercial email with each entity who sends spam.

Unsolicited commercial electronic mail and affirmative consent are defined too imprecisely to effectively regulate spam. In section §3(1), the bill defines affirmative consent:

(A) the recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient's own initiative; and

(B) if the message is from a party other than the party to which the recipient communicated such consent, the recipient was given clear and conspicuous notice at the time the consent was communicated that the recipient's electronic mail address could be transferred to such other party for the purpose of initiating commercial electronic mail messages.

Under this definition, it seems that a website or email list builder is not prevented from selling their lists of addresses, so long as the recipients were given "clear and conspicuous notice" that their addresses would be released to a third party. Although §9 of the bill recommends creating a "do-not-spam" list, its effectiveness will be undermined because the bill allows marketers to share email lists to other parties, with not constraints other than the requirement to provide "clear and conspicuous notice." Then, the affected individual email users will have to opt-out of email from every sender.

In §3(2), the bill defines "Commercial electronic mail message" as: "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)." However "inclusion of a reference to a commercial entity or a link to the website of a commercial entity in an electronic mail message does not, by itself, cause such message to be treated as a commercial electronic mail message for purposes of this Act if the contents or circumstances of the message indicate a primary purpose other than commercial advertisement or promotion of a commercial product or service."

Under this definition, a message whose primary purpose is to remind people that Daylight Savings Time ends this weekend can be sponsored by Besco clock and watch company (a merciless spammer) and include a link its website. I'm sure that the penis enlargement pill marketing industry could easily find a message whose primary purpose is non-commercial. This would exempt this sort of message, since it is "non-commercial," from the regulations.

This bill does not provude a private right of action. Instead, the FTC (§7), State Attorney Generals (§7(e)) and ISPs (§7(f)) are able to act against spammers.

This bill preempts state anti-spam statutes, except for those that prohibit falsity or deception. So, stronger specific anti-spam laws, like California's will be preempted by this weaker federal legislation. Regulation of spam under non-specific consumer protection laws, like New York;s, can continue.

Washington Post: Senate Votes 97-0 To Restrict E-Mail Ads

Internet.com: Senate Anti-Spam Bill Ups Ante for House Action

In related news, the Pew Internet & American Life Project released a new report: Spam: How it is hurting email and degrading life on the Internet

Wired News: Survey Confirms It: Spam Sucks

NY Times: A Change of Habits to Elude Spam's Pall

Posted by Andrew Raff at October 23, 2003 02:24 PM