House Commerce Committee Holds Hearing on Spam Bills

July 9, 2003. The House Commerce Committee's Subcommittees on Commerce, Trade and Consumer Protection and on Telecommunications and the Internet held a hearing titled "Legislative Efforts to Combat Spam". It focused on HR 2214, sponsored by Rep. Richard Burr (R-NC), and HR 2515, sponsored by Rep. Heather Wilson (R-NM).

See, prepared testimony of witnesses: Howard Beales (Director of the Federal Trade Commission's Bureau of Consumer Protection), Garry Betty (P/CEO of EarthLink), Charles Curran (Assistant General Counsel of America Online), Ira Rubinstein (Associate General Counsel of Microsoft), Paul Misener (VP for Global Public Policy, Amazon.com), Kenneth Hirschman (VP and General Counsel of Digital Impact), Paula Selis (Senior Counsel, Washington State Attorney General), and Christopher Murray (Legislative Counsel, Consumers Union).

Rep. Fred Upton (R-MI), a cosponsor of HR 2214, stated that "This is a watershed moment for this Congress. If we work together, I am confident that, after many years of fits and starts, we may finally be in a position to respond to our constituents' plea for help in protecting their in-boxes ..." He added that "Efforts in the last couple of Congresses have fallen short, particularly because of squabbles between Committees of jurisdiction." The Committees of jurisdiction are the House Commerce Committee and the House Judiciary Committee.

Rep. Billy Tauzin (R-LA), the Chairman of the full Committee, stated that "now we will have a joint committee product". He added that he expects action on the House floor this year.

Similarly, Rep. Bob Goodlatte (R-VA), a cosponsor of HR 2214, stated at the House Judiciary Committee's hearing on July 8 that "this bill has great prospects for success" because of the support from the leadership of both Committees.

Rep. Ed Markey (D-MA), the ranking Democrat on the Telecommunications and Internet Subcommittee, said that he wants the Congress to also address "wireless spam". He said that "it is predictable that spam will migrate to wireless services", where it will be "even more burdensome".

Rep. John Dingell (D-MI), the ranking Democrat on the full Committee, is a cosponsor of HR 2515, the Wilson bill. He said that the Wilson bill is a "strong" bill, while the Burr bill "is weaker in several important respects".

He criticized the Burr bill for placing monetary caps on damage awards in state Attorney General actions. He also criticized the Burr bill for treating one category of commercial e-mail differently the other. Said Dingell, "spam is spam". He also argued that legislation should "contain a sufficiently broad definition of ``affiliate´´ so that consumers are not required to opt out of each affiliate within a giant corporation."

Rep. Rick Boucher (D-VA), who is a cosponsor of HR 2515, stated that any spam legislation must include three elements, "vigorous enforcement", a "workable definition of spam",  and "strong consumer protections". He elaborated that there must be an opportunity to opt out, and that a single opt out should must cover all related entities.

Howard Beales testified on behalf of the FTC. He reviewed the FTC's ongoing anti spam efforts and legislative proposals in his prepared testimony.

He stated that "Effective spam legislation must address the following three issues: First, legislation must address how to find the person sending the spam messages. Although we believe that technological changes will most effectively resolve this issue, we have proposed several procedural legislative changes that can provide some assistance in our law enforcement investigations. Second, legislation must deal with how to deter the person sending the spam messages. As discussed below, the Commission believes that civil penalties, and possibly criminal sanctions, would help address this issue. Finally, legislation must determine what standards will govern non-deceptive, unsolicited commercial email. The Commission believes that the appropriate standards would include clear identification of the sender of a message and by empowering consumers to end the flow of messages that they do not wish to receive."

Paul Misener of Amazon.com wrote in his prepared testimony that "Amazon.com will support particular anti-spam legislation only if it recognizes that legitimate businesses occasionally make honest mistakes that should not be proscribed." He elaborated that "Because commercial email necessarily involves computers and human programmers, there have been and will continue to be occasional email mistakes, no matter how many preventative measures are taken. Such truly honest mistakes are rare and certainly are not the cause of the in-box clutter and associated consumer angst that have led us all to this point. Not only are these mistakes expected and essentially not preventable, the harm to consumers is minimal, and there already are strong market forces at work: Reputable companies simply do not want to irritate consumers who have asked not to be bothered. ... Proscribing such mistakes would have the perverse effect of discouraging email use by the most reputable -- and thereby most exposed -- companies."

He added that "Amazon.com believes that H.R. 2214 and H.R. 2515 would wisely distinguish between actions that may plausibly be mistakes and those that almost certainly involve unlawful intent. They would require plaintiffs complaining of commercial email being sent after an opt-out choice to allege with particularity that the defendant has engaged in a ``pattern or practice´´ of ignoring such choices. No such pattern or practice allegation would be needed for complaints regarding, e.g., false headers. Importantly, the ``pattern or practice´´ language in these House bills would not create a loophole for the real spammers to escape punishment."