House Holds Another Hearing on Spam

(September 29, 1998)  The House Telecommunications Subcommittee held a hearing on the problem of unsolicited commercial email on Monday, September 28.

The committee held a joint hearing on the largely unrelated issues of spamming and cramming (the fraudulent practice of placing improper items on telephone bills).  The majority of the hearing was devoted to the cramming issue.

The witnesses who testified on the spamming issue were:

• Deirdre Mulligan, Staff Counsel, lobbyist, and professional Congressional witness, for Center for Democracy and Technology.
• Jerry Cerasale, SVP, Direct Marketing Association.  (Prepared Statement.)
• Randall Boe, Associate General Counsel, America Online.  (Prepared Statement.)
• Paula Selis, Office of the Attorney General, State of Washington.

Jerry Cerasale testified on behalf of the Direct Marketing Association, an industry group which is opposed to any serious restraints on commercial e-mail.  He testified that, "We strongly believe that no method of communication for commerce should be eliminated -- including unsolicited e-mail."

He suggested that the solution was an as yet undeveloped "opt out" procedure.   He testified:

The first prong of any opt-out plan is that the recipient of an unsolicited bulk e-mail should be able to request that the marketer not send any more e-mails to that address. This could be done via the reply key. Consumers must also know with whom they opt-out. Thus, e-mail marketers must tell consumers who they are. This is also part of any legitimate marketer's program. You cannot create a long-term business-customer relationship if the potential customer does not know who you are.

The DMA is actively working on the second prong for opt-out. We hope to have in place early next year an "e-mail preference service" (e-MPS). An e-MPS would allow consumers to add their e-mail addresses, on line, to a list at no charge; marketers would then use this list to delete the addresses from their e-mail list.

Randall Boe testified on behalf of America Online, an Internet service provider burdened with millions of spam messages every day.  He testified about the great lengths AOL has gone to to develop technologies and pursue lawsuits in a futile effort to eliminate spam on its network.

Boe suggest that an opt out system would not work.  The spammers just "use remove requests to compile lists of active addresses to spam."

He offered three suggestions for legislation to address the problem:

• "Outlaw the forging of sender identification information;"
• "Strengthen the Computer Fraud and Abuse Act, making it a stronger weapon against junk e-mail; and"
• "Add statutory civil penalties and the opportunity for ISPs to recover court costs and attorneys fees."

Paula Selis testified regarding the recently enacted Washington state anti-spamming law.

Deirdre Mulligan testified that she thought that the Federal Trade Commission should be given more authority to regulate spammers.  She testified that she "support[s] increased enforcement of existing laws."   She also stated that "the Center for Democracy and Technology clearly supports giving authority to places like the Federal Trade Commission to address what many of use view as unfair and deceptive practices -- misuse of headers, cloaking your identity and sending unsolicited commercial messages ..."

Rep. Cliff Steams (R-FL) asked Mulligan, "Can a government put a ban on spamming?  Is it Constitutional?"   Mulligan responded:

"I think that the Supreme Court decision in Reno v. ACLU is probably your best quidance on that issue.  And I think that the most important thing that it told Congress was that if you are looking to legislate on this medium, make sure that you do, diligence;  make sure that you do a real factual hearing; and look at the cost; and look at the way the medium works.  And look at what are the least restrictive means of meeting your goal.  So in this instance, if the goal is to minimize the cost on ISPs, and more importantly, the cost of cost of transfer to the end user, and given the ability to exercise some control over their email, I would suggest that there are probably some less restrictive means than a ban on this particular medium for commercial messages.   It would be a factual finding.  ...  My belief is that there are less restrictive means to accomplish your goal.  And I think the Supreme Court has said that it will look very very carefully to make sure the legislative record supports the legislation.  And right now I don't think that we have the facts before us that suggest that that would be the least restrictive means -- a ban. ..."

Rep. Billy Tauzin (R-LA) , the Chairman of the Telecommunications Subcommittee presided for most of the hearing.  Other members who participated were Ed Markey (D-MA), John Shimkus (R-IL), Bart Gordon (D-TN), and Cliff Stearns (R-FL).