Spam Bills Proliferate in the 106th Congress

(June 20, 1999) When freshman Rep. Gary Miller filed his "Can Spam Act" on June 10, it joined a host of other bills which deal with unsolicited bulk electronic mail. Most of the bills appear to have more to do with giving ISPs and EMSPs control over the flow of bulk e-mail, than in protecting ordinary users from unwanted messages in their e-mail boxes.

For example, Rep. Gary Miller's (R-CA) bill does not give e-mail recipients the right to sue. Nor does it give the Federal Trade Commission, the consumer's watchdog agency, any new authority to take action against spammers. In contrast, all of the bills (except Rep. Bob Goodlatte's HR 1686, which contains only a narrow criminal ban) give Internet service providers (ISPs) or electronic mail service providers (EMSPs) the right to sue and collect hefty damages.

Also, very little in these bills actually bans what ordinary consumers consider "spam." These bills deal more with the "battle of the software." That is, bulk e-mailers use software that sends their hordes of messages to the EMSPs' clients. The EMSPs, in turn, use software to try to block the messages from these bulk e-mailers. The routing information in bulk e-mail provides a basis for blocking. The programmers for the bulk e-mailers then revise their software to foil the blocking software of the EMSPs. Presently, the programmers for the bulk e-mailers are winning the software battles.

Consequently, some of the EMSPs have gone to Congress, not to ask for laws that ban bulk e-mail, but to ban certain practices used by the bulk e-mailers' programmers that are giving them the upper hand. Basically, the bulk e-mailing software generates false routing information, including false sender, false return e-mail address, false Internet domain, and false time or date. It also changes this false information very frequently.

These practices are a target of most of the bills. These bills tend to ban the practice of generating false routing information, ban the software itself, or ban both.

Also, something that is conspicuously lacking from most of the bills is a provision preventing ISPs and EMSPs from spamming their own members. Only one bill contains language broad enough to cover e-mail from an ISP to its own subscribers (HR 1910). The ISPs and EMSPs will be able to send their users unsolicited e-mail. But, they will be able to prevent others from doing so. Bottom line: ISPs will be able to charge advertisers for access to the e-mail boxes of their subscribers.

There is no doubt the average consumer who subscribes to a major online service would be better off if any of these bills became law. The volume of unsolicited messages would decrease. Also, the online services will be very reluctant to deal with the most odious bulk e-mailers, such as those engaging in online fraud, ponzi schemes, and pornography. But the unsolicited messages will continue, and the online services will have a new source of revenue.

There is an irony to this. Just as the ISPs are lobbying the Congress, FCC, and local utilities boards for open access to proprietary cable networks, they are clamoring to restrict bulk e-mailers open access into their e-mail networks.

This article compares the contents of five bills which deal with the subject of unsolicited bulk e-mail, or spam. The bills compared are S 759 IS (Inbox Privacy Act), HR 1685 IH (Internet Growth and Development Act), HR 1686 IH (Internet Freedom Act), HR 1910 IH (E-Mail User Protection Act), and HR 2162 IH (Can Spam Act).

There are many other bills which touch on the subject of unsolicited bulk e-mail that are not addressed in this article. For example, the Consumer Credit Card Protection Amendments, S 687 sponsored by Sen. Charles Schumer (D-NY), and HR 900 sponsored by Rep. John LaFalce (D-NY), deal with the very narrow topic of unsolicited credit card offers, including offers by e-mail. Similarly, the Telemarketing Fraud and Seniors Protection Act, S 699 sponsored by Sen. Ron Wyden (D-OR), and the Protection Against Scams on Seniors Act, HR 612 sponsored by Rep. Robert Weygand (D-RI), touch on the use of spam in elder fraud. Bills such as these which only tangentially touch on spam, are not considered in this article.

Sen. Frank Murkowski

S 759 is Sen. Frank Murkowski's (R-AK) second shot at passing a bill. He sponsored a bill in the 105th Congress that passed the Senate, but stalled in the House. S 759 is an "opt out" bill. Both e-mail recipients and ISPs must be given the opportunity to opt out of receiving any more mail. If a bulk mailer fails to honor the opt out request, the ISP, but not the recipient, can bring suit. This bill expressly permits an ISP to send bulk mail to its own domain.

S759 also preempts state laws dealing with unsolicited bulk e-mail. Some states have passed laws to protect consumers. These would be wiped out.

HR 1685 and HR 1686 are both broad bills dealing with a host of Internet related issues. HR 1685 is sponsored by Rep. Rick Boucher (D-VA), and cosponsored by Rep. Bob Goodlatte (R-VA). HR 1686 (which is a subset of HR 1685) is sponsored by Rep. Goodlatte, and cosponsored by Rep. Boucher. Essentially, these bills are collections of several bills. Title II and Title V of HR 1685 deal with bulk e-mail. Each could be a stand alone bill. Title II of HR 1685 bans violation of an EMSP's posted policy regarding unsolicited commercial e-mail. It then allows the EMSP, but nobody else, to sue for violation. It is a civil provision. It is not duplicated in HR 1686. Title V of HR 1685 is a criminal ban. It amends 18 USC 1030 which covers fraud and related activity in connection with computers. It provides stiff criminal penalties for bulk e-mailers who use false routing information, and for people who make, sell, or use software that creates false routing information. There are also a number of other elements of the crime, so this will only be available for the more egregious violators. This criminal provision also is in HR 1686, Rep. Goodlatte's bill.

Rep. Miller's bill, HR 2162, is quite similar to HR 1685. It contains a civil prohibition on violating an EMSP's posted UCE policy (which only the EMSP can sue to enforce) and a criminal prohibition amending 18 USC 1030 to criminalize the use of false domain information in e-mail. The language of both provisions is similar, but not identical to, HR 1685. However, unlike HR 1685, HR 2162 would preempt state laws.

	Rep. Green

The final bill, HR 1910, is the odd one out. Like the others it deals with the false routing information concerns of the ISPs and EMSPs. It bans both the use of false information and the software. It allows the ISPs and EMSPs to sue. It also contains some criminal bans. However, what makes it unique is that it allows individuals to opt out of receiving bulk e-mail (S 759 does this also), and allows individual e-mail recipients to sue spammers -- even their own ISPs.

HR 1910 is sponsored by Rep. Gene Green (D-TX). He is a liberal Democrat from Houston who holds a seat on the Commerce Committee, and its Telecom Subcommittee, which have jurisdiction over his bill, along with the Judiciary Committee.

Explanation of Table Items

Limitations on the Scope of E-mail Covered

These bills define bulk e-mail in much different ways. These definitions are crucial. Three of the bills are riddled with so many exceptions that much of what consumers consider to be "spam" would fall outside of the coverage of the bills. (These include S 759, HR 1686 (civil provision), and HR 2162. The criminal provisions of HR 1685 and HR 1686 contain few exceptions. (But the activities subject to criminal prosecution are quite narrow.) The Green bill, HR 1910, is the only civil bill with a fairly inclusive definition of bulk e-mail. The criminal provisions of HR 2162 do not define unsolicited bulk e-mail because this part of the bill only bans the practice of using false routing information.

Commercial. All of the bills, except the criminal provisions of HR 1685 and HR 1686, restrict the scope to "commercial" e-mail. Thus, spam from politicians, political activists, evangelists, and others not engaging in commerce, are not affected.

Prior relationship. All bills provide that e-mail sent to someone who has a prior relationship with the sender is not covered.

Consent. All bills provide that e-mail sent to someone who has consented to receive the e-mail is not covered.

Sale. Several bills use the term "sale" in defining commercial mail. The use of the term "sale" limits the scope of the bill. It excludes other types of commercial transactions, including purchasing, leasing to, and leasing from.

Goods and services. Several bills only cover the sale of "goods and services." This would exclude e-mail pertaining to other items in commerce, such as real estate, securities, and franchises.

Primary purpose. Several bills only cover e-mail the "primary purpose" of which is to sell something. Thus, a bulk e-mailer who adds non-commercial content to a commercial message can argue exemption from the bill.

Initiate a commercial transaction. S 759 alone exempts e-mail that is not to "initiate a commercial transaction." This phrase is not defined in the bill. It could open up a giant loophole. For example, an advertising company which sends bulk e-mail advertising a product for sale by another party might argue that it is not attempting to "initiate a commercial transaction," because it is not offering anything for sale.

Prohibited Actions

These bills all prohibit certain actions by bulk e-mailers and those who support them.

False Sender/Domain/Date. Several bills prohibit including false information in e-mail, such as false sender, false return e-mail address, false Internet domain, false time or date, or other false identifiers. S 759 prohibits false routing information, without defining the term.

Spamware. Several bills prohibit developing or using software that is designed to put certain false information on bulk e-mail, including false Internet domains, headers, date or time stamps, originating e-mail addresses or other identifiers.

Violation of Opt-Outs. Two bills prohibit bulk e-mailers from violating the choices of EMSPs or e-mail recipients not to receive bulk e-mail. In fact, this is the whole gist of S 759. Under S 759, bulk e-mailers must give both EMSPs and recipients the chance to refuse to receive any more bulk e-mail from that sender. The bulk e-mailer is then prohibited from violating this "opt out."  Of course, since recipients have no private right of action under S 759, this offers limited protection to the recipients. Another bill, H 1910, does not provide for an EMSP opt out. It does provide for recipient opt out, and gives recipients a private right of action.

Violation of EMSP UCE Policy. Several bills ban sending bulk e-mail in violation of the EMSPs policy regarding unsolicited commercial e-mail (UCE). This is similar to, but more flexible than, S 759's EMSP opt out provision.

Enforcement Provisions

Banning an activity has little consequence unless someone has the legal right, incentive, and means to go to court to enforce the ban. These bills vary significantly in their provisions regarding who can go to court, what prohibitions they can enforce, and what recovery they can receive.

FTC UTP. The Federal Trade Commission (FTC) has authority to initiate civil actions against businesses engaging in certain unfair trade practices (UTP). Several of these bills would expand the FTC's UTP enforcement authority to cover certain bulk e-mail practices. On the one hand, this is a very weak enforcement mechanism. The FTC has limited resources, moves slowly, and usually only obtains a consent decree barring the offending party from continuing its UTP. Hence, many offending bulk e-mailers would never be the subject of an FTC action. And those who do only face a "slap on the wrist." On the other hand, the FTC represents consumers, who often lack the ability to defend themselves, and who often would remain unprotected absent FTC action.

Criminal. Criminal prosecution by the U.S. Department of Justice can result in far more than a "slap on the wrist." The criminal provisions of HR 1685 and HR 1686 provide for significant jail time and fines. HR 2162 provides for more limited criminal prosecution. However, there is no guarantee that the Justice Department would actually prosecute anyone. For example, the No Electronic Theft Act was passed in 1997, yet as of May 1999, the Justice Department had not yet brought one case.

EMSP. Several bills provide for civil enforcement actions by the Electronic Mail Service Providers (EMSPs). The EMSPs, such as America Online, whose networks are flooded with bulk e-mail, and whose customers are upset, have an the incentive and resources to bring suits against the bulk e-mailers. These bills give them increased legal grounds for suing. Hence, this is a way to guarantee that much of the most odious bulk e-mailing can be stopped. However, there are at least two drawbacks, from the e-mail recipients' viewpoint. First, many EMSPs are small companies which do not have the resources or disposition to sue offending bulk e-mailers. The people who receive their e-mail through these EMSPs will not be helped by this enforcement mechanism. Of course, some consumers will then switch to big EMSPs, like AOL, which will be just fine with AOL. Second, there is no guarantee that EMSPs will sue to stop all bulk e-mailers. Bills such as S 759, HR 1686, and HR 2162 do not so much ban bulk e-mail as give the EMSPs something akin to a property right in access to their customers. Under the bills some EMSPs would likely end up selling bulk e-mailers the right to send e-mail to their subscribers (or it would be sent by AOL itself). Of course, if spam were no longer free to send, the quantity would decrease.

Recipients. Notably, none of these bills, except Rep. Green's, allow the recipients of bulk e-mail to do anything about it.

States. Finally, there is the possibility of allowing state attorney generals to bring suits to enforce federal bulk e-mail statutes. Only one bill does this -- S 759. However, this will come as cold comfort to the states, because S 759 preempts all state laws. Thus, states that pass strong anti-UBE statutes will be barred from enforcing them, but will be given the opportunity to enforce a weak federal statute.