Anti-Spam Bills Losing Time

Congress at impasse with few weeks left.

One of silicon valleys key voices in Congress, Rep. Zoe Lofgren, D-Calif., said last week that lawmakers have reached a logjam on several technology-related legislative initiatives, including spam, digital rights and, to some extent, database protection. With just a few weeks left before members plan to return home, Congress is preoccupied with spending bills.

Unwanted e-mail, a hot-button issue on Capitol Hill all year long, has led lawmakers to an impasse. "Were stuck in the Commerce Committee in spam," Lofgren said. "Nobodys talking to anybody."

Speaking to a small audience of IT industry representatives here, Lofgren said the majority of the committee has signed on to the Anti-Spam Act of 2003, sponsored by Rep. Heather Wilson, R-N.M., but the committee chairman, Rep. Billy Tauzin, R-La., doesnt support it.

"None of us knows what would work on this tremendous problem we have," Lofgren said.

Lofgrens own anti-spam bill, the Reduce Spam Act of 2003, would require marketers to label commercial e-mail and include a valid return address, allow receivers to opt out of receiving further messages, and create a bounty for the first person to identify someone who violates the law. However, now Lofgren is considering other novel approaches such as focusing legislation on advertisers, she said.

Digital copyright protection, an increasingly controversial issue in light of the recording industrys litigation efforts against those who download music, has also brought lawmakers to an impasse, Lofgren told the audience gathered for the Computer & Communications Industry Associations annual Washington caucus.

The Digital Millennium Copyright Act of 1998, which authorized copyright holders to subpoena ISPs for the identity of alleged infringers, has been misinterpreted, Lofgren said. It was not the intent of the act to include non-infringing use of copyrighted material, and copyright holders should not be allowed to control the way consumers use the content they buy legally, she said.

In March, Lofgren introduced the BALANCE (Benefit Authors without Limiting Advancement or Net Consumer Expectations) Act, which would permit lawful consumers of digital material to reproduce or store that material for archival purposes or to perform or display it in a nonpublic place.

Rep. Rick Boucher, R-Va., is sponsoring a similar bill, the Digital Media Consumer Rights Act, and although Lofgren and Boucher have cosponsored each others measure, the legislation is unlikely to go anywhere this year.

"I think weve gridlocked ourselves," Lofgren said, adding that gridlock on the matter of digital rights management may be OK at the moment.

A litigation bonanza for copyright holders will only make the situation worse, Lofgren said. She said she believes there will be new efforts to download content without being identified.

"Now were going to end up with an anonymized system," Lofgren said. "It will be completely impossible for [content creators] to deal with it."

Momentum to pass the database protection bill, known as the Database and Collections of Information Misappropriation Act of 2003, has also slowed, Lofgren said, adding that she is skeptical such legislation can withstand judicial review.

"People are now realizing that theres a constitutional problem here," Lofgren said. "The multiple efforts to try and create a property right out of something that cannot be protected is an interesting thing to watch. I dont think it can be done."

In the Senate, lawmakers are working hard for passage of anti-spam legislation, but with a targeted adjournment at the end of the month, few are optimistic it will be done this year. The Senate Judiciary Committee approved a measure last week that would create jail time and high fines for hijacking a computer for the purpose of sending spam. The bill is the second Senate anti-spam measure to clear committee.