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The nations overwhelming response this month to the federal Do Not Call lists promise of telemarketing relief has given Congress added impetus to finally act on another unasked-for nuisance: spam.
Spam is not a partisan issue, but it is nevertheless embroiled in politics. In past years, turf battles between the House judiciary and commerce committees ruined chances for a bill to come to a vote on the floor. In addition, disagreements within the committees threaten to slow the momentum for passing a measure this year.
At present, two bills are competing—one authored by Rep. Richard Burr, R-N.C., and the other authored by Reps. Heather Wilson, R-N.M., and Gene Green, D-Texas. The Burr bill has the support of both committee chairmen, but the majority of the commerce committee members support the Wilson/Green bill.
“This is a watershed moment for Congress,” Rep. Fred Upton, R-Mich., chairman of the Subcommittee on Telecommunications and the Internet, said Wednesday. “We may finally be in a position to respond to our constituents plea for help.”
Some issues in the spam debate, such as whether to ban unsolicited commercial e-mail unless a consumer affirmatively “opts in” to receive it, have been settled for now. Few lawmakers are willing to support an opt-in requirement as it is highly unpopular throughout industry. Both the Burr and the Wilson/Green bills contain the less controversial “opt-out” requirement.
Fraudulent or Just Unwanted
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Fraudulent or Just Unwanted?
However, Congress continues to struggle at square one with defining spam. All agree that fraudulent e-mail and unsolicited pornographic e-mail must be curbed, but there is considerable debate on what other classes of unwanted e-mail Congress should try to limit.
For many average e-mail users, the problem with spam is not limited to fraudulent messages or unsolicited pornography, but it also includes the growing volume of unwanted messages. Rep. Bobby Scott, D-Va., noted Tuesday that the definition of spam is “in the eye of the beholder.” Other judiciary committee members complained of the “harassment” of volumes of unwanted—but not necessarily fraudulent—e-mail, and consumer advocates agree.
However, industry is seeking a bright line between fraudulent spammers and legitimate businesses that send unsolicited e-mail and are pressing Congress to focus its efforts on the frauds. Legislation should not penalize legitimate businesses, which would give frauds an advantage, Joe Rubin, an attorney with the U.S. Chamber of Congress, told lawmakers Tuesday.
Calling the Burr bill the weaker and less protective of the two, Rep. John Dingell, D-Mich., said Wednesday that it “creates a new category of legalized spam.” Dingell and several other lawmakers expressed concern that the Burr bill does not give states full enforcement authority and it arbitrarily limits the damages state attorneys general can seek.
Other lawmakers said they were concerned that the Burr bill leaves too many loopholes for spammers to exploit and that it creates burdens on enforcement because it requires a showing that a spammer knew or should have known about the opt-out provision.
Optimistic that sponsors of the two bills can reach common ground, Upton said there is negotiating room for increasing the damage caps and closing loopholes.
Individual Right to Sue
Individual Right to Sue
The sticking point, however, may be in the right of citizens individually to sue spammers or to file class action suits, a right the Burr bill would not permit. Rep. Cliff Stearns, R-Fla., questioned whether creating that right would unleash a torrent of litigation.
States generally are looking for a tough measure from Capitol Hill, but one that does not pre-empt any anti-spam laws they already have on their books. Paula Selis, senior counsel in the Washington State Attorney Generals office, opposed several provisions in the Burr bill, urging lawmakers not to restrict monetary damages or prohibit individual rights to sue.
Defending his bill, Burr said that no legislative measure could eliminate all spam, because some spammers will find ways to get around any measure that is passed. Recognizing that his initiative would not be perfect, Burr said the important thing is to get legislation passed.
ISPs are lobbying hard for legislation, but not necessarily the strongest measures sought by consumer advocates. Representatives from EarthLink Inc. of Atlanta, America Online Inc. of Dulles, Va., and Microsoft Corp. of Redmond, Wash., all testified Wednesday to the need for a federal law, but only Ira Rubinstein, associate general counsel at Microsoft, said he supports both bills.
Microsoft is also pushing Congress to set parameters within which industry could develop best practices and a “safe harbor” program to combat spam. The safe harbor program would reinforce the distinction between legitimate commercial e-mail and fraudulent e-mail and help improve the effectiveness of filters deployed by ISPs, Rubinstein said Wednesday.
The specter of an imminent invasion of spam over mobile phones is not lost on lawmakers, and some are pressing to include wireless in the anti-spam legislation.
“It is predictable that spam will migrate to wireless services,” said Rep. Ed Markey, D-Mass., Wednesday. “It will be spam that follows you wherever you bring your phone. This is a future that is right around the corner unless we act.”