Senate Passes Burns Wyden Spam Bill

October 22, 2003. The Senate amended and passed S 877, the "Controlling the Assault of Non-Solicited Pormography and Marketing Act of 2003'", also known as the "CAN-SPAM Act of 2003", by a vote of 97-0. See, Roll Call No. 404.

Sen. Ron Wyden (D-OR), the lead cosponsor of the bill, stated in the Senate that "kingpin spammers who send out emails by the millions are threatening to drown the Internet in a sea of trash. The American people want it stopped. Every single day the Senate delays, these big-time spammers, the ones who are trying to take advantage of the open and low-cost nature of the Internet, gives them another opportunity to crank up their operations to even more dizzying levels of volumes."

Sen. John McCain (R-AZ) (at right), the Chairman of the Senate Commerce Committee, summarized the bill. He stated that it would "prohibit senders of commercial e-mail from falsifying or disguising the following: their identity; the return address or routing information of an e-mail; and the subject matters of their messages. Violations of these provisions would result in both criminal and civil penalties."

It would also "require senders of commercial e-mail to give their recipients an opportunity to opt out of receiving future messages and to honor those requests. Except for e-mail that is transactional in nature, such as purchase receipts or airlines ticket confirmations, every commercial e-mail sent over the Internet to American consumers would be required to provide this valid, working opt-out or unsubscribe mechanism."

Sen. McCain continued that it would also provide that "For unsolicited commercial e-mail, however, the bill would require more disclosures from the sender of the message, such as providing recipients with instructions on how to operate the opt-out mechanism, a valid physical address of the sender, and a clear notice in the body of the message that it is an advertisement or solicitation."

The bill would also "target many of the insidious mechanisms used by today's spammers, including e-mail harvesting, dictionary attacks, and the hijacking of consumer e-mail accounts in order to send spam."

The bill, as amended, provides for both criminal and civil penalties, with enforcement by the Federal Trade Commission (FTC), state attorneys general, internet service providers, and the Department of Justice (DOJ).

The bill also contains preemption language. It provides that "This title supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto." It also provides that "This title shall not be construed to preempt the applicability of State laws that are not specific to electronic mail, including State trespass, contract, or tort law, and other State laws to the extent that those laws relate to acts of fraud or computer crime."

The Senate approved several amendments, including one offered by Sen. Charles Schumer (D-NY) that would require the FTC to submit a report to the Congress within six months that sets forth a plan and timetable for establishing a nationwide market do not e-mail registry. This report must include an explanation of any practical, technical, security, privacy, enforceability, or other concerns the FTC has regarding such a registry and include an explanation of how the registry would be applied with respect to children with e-mail accounts. It also provides that the FTC may establish and implement the plan, but not earlier than 9 months after the date of enactment of this act.

FTC Chairman Timothy Muris has already stated that he believes, given the lawless nature of spammers, that a do not e-mail list would not work. See, August 19, 2003 speech and story titled "Muris States Spam Debate on Capitol Hill is Veering Off On the Wrong Track" in TLJ Daily E-Mail Alert No. 722, August 20, 2003.

Muris stated that "Unfortunately, the legislative debate seems to be veering off on the wrong track, exploring largely ineffective solutions. For example, a ``Do Not Spam´´ list is an intriguing idea, but it is unclear how we can make it work. Most spam is already so clearly illegitimate that the senders are no more likely to comply than with the ``ADV´´ laws they now ignore."

He added that "We are sure the National Do Not Call Registry will reduce calls significantly. There is no basis to conclude that a Do Not Spam list would be enforceable or produce any noticeable reduction in spam. If it were established, my advice to consumers would be: Don't waste the time and effort to sign up."