Point-Counterpoint on the "Can Spam" Law

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POINT: Why we've finally canned spam<= o:p>

By = Ron Wyden and = Conrad Burns

Story last modified December 16, 2003, 11:45 AM PST

Congress has finally taken an important step forward in the battle again= st unwanted and offensive e-mail by passing the Can-Spam Act of 2003.

As co-authors of this legislation and as two of the Senate's leading technology legislators, we do not claim that the Can-Spam Act, which passed into law Tuesday, offers a silver bullet that will st= op all unwanted e-mail. However, we do believe that the law will offer importa= nt new tools in the fight against spam and that some of the criticisms of the legislation are misguided.

Experts say most spam= comes from a relatively small number of hard-core spammers (perhaps as few as 200) who send out millions of messages per day. Under the Can-Spam bill, these big-time spammers--who currently perceive little risk--will suddenly be ris= king criminal prosecution, Federal Trade Commission enforcement and million-doll= ar lawsuits by state attorneys general and Internet service providers (ISPs). =

Big-ti= me spammers will inevitably violate the Can-Spam Act because it strikes at the heart of how their sleazy businesses work. The bill prohibits senders of commercial e-mail from hiding or disguising their identities or from using misleading subject lines. Spammers must use these deceptive tactics to avoid now-common spam filters and ply their trade. If they continue to do so, they will run afoul of the law.

Some critics, includi= ng ZDNet writer David Berlind, have correctly note= d that enforcing the new law will be a key challenge. In our view, it will be important = for enforcement authorities to bring a few high-profile cases shortly after the bill is enacted. That will send a clear message to the kingpin spammers that the game has changed. However, we disagree with critics who claim that the = bill cannot be effectively enforced.

= Berlind suggests that an "opt out" approach is hard to enforce, because opt-out mechanisms do not al= ways work and lack a standard protocol. It is important to note that many legiti= mate businesses currently use opt-out mechanisms that work the vast majority of = the time. If a mechanism repeatedly fails to work, it would be clear that a spa= mmer is violating the law. Even if a violation of the opt-out provisions were somehow too difficult to prove in a particular case, a spammer could still = be prosecuted or sued for falsifying header information or subject lines, whic= h, as noted above, are the essential tools of the spammers' trade. =

Second, some critics = argue that there is little support for the bill among those charged with enforcing it. It is true that state attorneys general are uncomfortable with federal legislation that preempts state laws. But other parties charged with enforc= ing the bill have been far more positive. In particular, ISPs--whose networks a= re burdened by spam and who have been on the front lines in the spam battles to date--have expressed strong support for the bill. The FTC has also said the bill should be helpful.

Third, critics point = out that some spammers live abroad and hence are outside U.S. jurisdiction. But= the fact is that many big-time spammers do reside in the United States. Moreove= r, the bill cannot be evaded by hiring an offshore spammer. A person in the U.= S. who hires an offshore spammer to send unlawful e-mails would be fully liable under the bill.

Finally, some say that the bill's large potential damages are irrelevant, because ma= ny spammers have limited resources. But the bill applies both to spammers and = to those who hire spammers. One of those parties, if not both, is likely to have some real resources. Moreover, big-time spamming involves a business calculation. Right now, the costs of spamming are near zero, making any revenue pure pro= fit. With the possibility of large money judgments, the potential cost of spammi= ng rises, and the business calculation could change.

In the end, fighting = spam is going to require a multipronged approach. It= will require improved technology, which is why we welcome the recent announcement that Yahoo is working on technology to authenticate the source of e-mails. Greater cross-border cooperation is needed, which is why we joined three U.= K. Parliament members to urge our respective governments to engage in bilateral cooperation on spam enforcement. Of course, kingpin spammers must also face tough criminal and civil penalties, which is why we proudly co-authored the Can-Spam Act.

We firmly believe tha= t the Can-Spam Act is an important piece of the antispam puzzle. With proper enforcement, it will be an effective tool in the war on spam.

COUNTERPOINT: It's not called 'Can' Spam for nothing

By Ray Everett-Church
http://news.com.com/2010-1028-51251= 92.html

Story last modified December 16, 2003, 10:30 AM PST

After six years of wrangling over legislative ways to stop spam, Congress was still faced with a fundamental choice: Give consumers control over the growing flood of unwanted spam e-mail that fills their in-boxes, or give in= to the powerful advertising and marketing industries who want to be the ones filling consumer in-boxes.

In the end, consumers= lost.

The Can-Spam Act, signed into law Tuesday, is being touted as relief for the millions of consume= rs beset with unwanted e-mail. But careful readers will notice that the law is not called the "Can't-Spam" Act. There's a good reason: The law is li= ttle more than an instructional guide for how to keep pumping out millions of e-mails per hour while avoiding legal liability.

Can-Spam sets forth v= arious dos and don'ts for the spammer who aspires to be legitimate. Do put your company's name and street address in the body of your advertisement. Don't use a fake return address. Do give people a meth= od by which they can opt out of messages about your company's latest clearance sa= le on earth-moving equipment. Don't bother to ask whether the millions of peop= le you are e-mailing could possibly even need your products in the first place= .

This law is a result = of the direct= -marketing lobby's success in convincing Congress to redefine the spam problem as being about dishonesty rather than the negative effects of massive volumes = of unwanted e-mail. Marketers argued that because most of the spam in consumer in-boxes is filled with fake headers, forged return addresses, and bogus op= t-out links, outlawing those practices will make the "bad" spam go away= and make room for "good" e-mail from legitimate companies.

Legitimate marketers have long been frustrated by spam. Just as mainstream companies w= ere discovering how much money could be saved by migrating ad campaigns from po= stal mail to e-mail, spam began to drive consumers cr= azy. Yearly surveys have shown consumers steadily growing both weary and wary of commercial offers received via e-mail. Companies have also been forced to invest millions in disruptive antispam filtering technologies which all too frequently block legitimate mail while letting s= pam pass through.

Yet marketers remain desperate to get into consumers' e-mail in-boxes, so swapping "bad&quo= t; spam for "good" spam is what the Can-Spam Act is all about. Provi= ded that each e-mail is truthful and provides an opt-out process, the law grants every marketer one free shot at e-mailing every American with a working e-m= ail address. The Direct Marketing Association calls this getting "one bite= at the apple."

Unfortunately, the ap= ple isn't that large, and marketers have very big mouths.

The danger in providi= ng one bite to every would-be e-mail marketer is that when you look at the numbers, they foretell disaster. The U.S. Small Business Administration estimates th= at there are about 25 million small businesses in this country. If only 1 perc= ent of those businesses sends a single legitimate e-= mail message bearing an opt-out feature to every American, we will average more = than 650 unwanted e-mails per day.

Could that many businesses decide to send spam? An editorial in a major marketing industry newspaper recently scoffed at the idea. But after years of telepho= nes ringing at dinner time and receiving three copies of the same catalog in yo= ur mailbox, ask yourself how many marketing executives got their jobs based on their qualities of patience and self-restraint.

Unburdened by fears of legal liability for spamming, it is only a matter of time before increasing numbers of legitimate marketers turn to unsolicited e-mail as a low-cost alternative to sending out credit card offers and coupons for laundry detergent.

The direct marketing industry believes that the Can-Spam Act is a great victory. (By the way, so= do several of the world's most prolific spammers.) But I believe that even legitimate marketers will soon come to realize what many have long feared: = An unfettered right to spam will continue to erode the usefulness of e-mail as= a communications tool.

The best we can hope = for is that the Can-Spam Act will have little effect on the spam problem, and the world will continue to seek other methods of controlling the flood of junk e-mail. Meanwhile, as we enter this election season, when our congressional representatives tell us how they acted decisively to solve the problem of deceptive spam, we can all take comfort in knowing that deception in politi= cal campaigns is still very much legal.