http://news.com.com/2010-1028-5125699.html

POINT:
Why we've finally canned spam

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 against
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 stop
all unwanted e-mail. However, we do believe that the law will offer important
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 risking
criminal prosecution, Federal Trade Commission enforcement and million-dollar
lawsuits by state attorneys general and Internet service providers (ISPs).

Big-time
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, including
ZDNet writer David Berlind, have correctly noted 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 always
work and lack a standard protocol. It is important to note that many legitimate
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 spammer
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, which,
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 enforcing
the bill have been far more positive. In particular, ISPs--whose networks are
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. Moreover,
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 many
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 profit.
With the possibility of large money judgments, the potential cost of spamming
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 that 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.

Copyright
©1995-2003 CNET Networks, Inc. All rights reserved.

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

By Ray
Everett-Church

http://news.com.com/2010-1028-5125192.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 consumers 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 little
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 various
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 method by
which they can opt out of messages about your company's latest clearance sale
on earth-moving equipment. Don't bother to ask whether the millions of people
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 opt-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 were
discovering how much money could be saved by migrating ad campaigns from postal
mail to e-mail, spam began to drive consumers crazy.
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 spam
pass through.

Yet marketers remain
desperate to get into consumers' e-mail in-boxes, so swapping "bad"
spam for "good" spam is what the Can-Spam Act is all about. Provided
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-mail
address. The Direct Marketing Association calls this getting "one bite at
the apple."

Unfortunately, the apple
isn't that large, and marketers have very big mouths.

The danger in providing 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 that
there are about 25 million small businesses in this country. If only 1 percent
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 telephones
ringing at dinner time and receiving three copies of the same catalog in your
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 political
campaigns is still very much legal.

Copyright
©1995-2007 CNET Networks, Inc. All rights reserved.