House Judiciary Committee Adopts Anti Spam Bill

May 23, 2001. The House Judiciary Committee amended and approved HR 718, an anti spam bill, on a voice vote, after a day long mark up session. Rep. Heather Wilson (R-NM) and Rep. Gene Green (D-TX) introduced the bill on February 14. The House Commerce Committee approved an amended version on April 4. The two Committees' versions are now substantially different. See, Commerce Committee version adopted on April 4; see also, Judiciary Committee's amendment in the nature of a substitute, Goodlatte amendment, and Hart amendment, which were all adopted by the Judiciary Committee on May 23.

The Commerce Committee version would criminalize sending unsolicited commercial e-mail (UCE) to someone who has asked to be removed from a distribution list. The bill would also require UCE to be labeled as such. It would also give individuals and ISPs separate causes of action for violation of the act; and, it would give civil enforcement authority to FTC, and a parens patriae cause of action to the states. The Judiciary Committee version eliminates any authority or cause of action for the FTC, states, or individuals. It would criminalize sending UCE with false header information, give a private right of action to ISPs to recover actual or statutory damages for sending UCE with false header information, and require that e-mail that contains contains sexually oriented advertisements to be labeled as such.

	Rep. James Sensenbrenner

Rep. James Sensenbrenner (R-WI), the Chairman of the Judiciary Committee, stated that the "Wilson bill utilizes almost every legal enforcement tool know to lawyers to regulate and to litigate issues relating to unsolicited commercial e-mail. These provisions are disproportionate to the harm or damage caused by spam." He also stated that he is "skeptical of the regulation of online commerce, including e-mail marketing." He offered an amendment in the nature of a substitute to HR 718 as reported by the Commerce Committee. He then described it: "the substitute would create new misdemeanor criminal provision to address the issue of technical fraud. Technical fraud includes forging or falsifying header and return information, thereby concealing the sender's identity. Those who send fraudulent e-mail or pornography often use technical fraud to conceal their true identities. Furthermore, technical fraud is used to defeat Internet service providers' and computer users' e-mail filters, preferences, and other technologies designed to block unwanted e-mail."

Rep. Zoe Lofgren (D-CA), who supported the Chairman's amendment in the nature of a substitute, stated that "my desire is to legislate as little as possible where the Internet is concerned." She added that recipients of spam already have a remedy: "hit the delete button."

Rep. Rick Boucher (D-VA) elaborated on criminalizing false header information: "the Internet service providers have now begun to use software that can detect large volumes of e-mail that originate from a common source simultaneously. And the software used by the ISP correctly interprets that e-mail to be spam. And so, that filter employed by the ISP is sufficient to keep that spam from reaching the recipient. What the spammers have now started to do in order to defeat that software is change in each of the items of e-mail that goes out, and each of the items of the spam that is sent, a little bit of the header information. The origination information may be altered in each subsequent message. ... And what the legislation ... would help to implement, is a means of criminalizing the way in which spammers are now defeating the ISPs software, because it would say that you cannot falsify any of the header information."

Rep. Bob Goodlatte

Rep. Bob Goodlatte (R-VA) offered an amendment to the amendment in the nature of a substitute to add a cause of action for Internet service providers. It was approved. Rep. Melissa Hart (R-PA) offered an amendment to the amendment in the nature of a substitute to require the labeling of e-mail that includes "sexually oriented advertisements." Several members stated that it would be held unconstitutional as a violation of the First Amendment. Rep. Hart argued that is contains the same language as a provision regulating U.S. Postal Service mail, which has been upheld by the courts. Her amendment was approved on a voice vote.

The Committee also rejected a pair of amendments that would have created a private right of action for recipients of UCE. The Committee also rejected an amendment offered by Rep. Schiff that would have required UCE to be labeled as such. The Committee then approved the amendment in the nature of a substitute, as amended by the Goodlatte and Hart amendments. It then reported HR 718, as so amended.

The bill may now proceed to the House floor, via the Rules Committee, which might work with members of the Commerce and Judiciary Committees to produce a compromise version. Last year, the House overwhelmingly passed an earlier version of Rep. Wilson's anti spam bill. HR 3113 (106th Congress) was passed by the House on July 18, 2000, by a vote of 427 to 1; but it was not acted upon by the Senate.