Spam Heats Up Capitol Hill

Competing bills joust for support, but Congress still struggles to define spam.

The nations overwhelming response to the federal "do not call" lists promise of telemarketing relief has given Congress added impetus to act on another consumer nuisance: spam.

Spam is not a partisan issue, but it is embroiled in politics. In the past, turf battles between the House judiciary and commerce committees ruined chances of a vote on the floor. In addition, disagreements within the committees threaten to slow 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.

"We may finally be in a position to respond to our constituents plea for help," said Rep. Fred Upton, R-Mich., chairman of the Subcommittee on Telecommunications and the Internet.

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 opt-in requirements, since they are unpopular in the industry. Both bills contain the less controversial "opt-out" requirement.

However, members of Congress continue to struggle to find a definition for spam. All agree that fraudulent e-mail and unsolicited pornographic messages must be curbed, but there is considerable debate over what other classes of e-mail Congress should try to limit.

For average consumers, the problem with spam is not limited to fraudulent messages or unsolicited pornography; it also includes the growing volume of unwanted messages. Rep. Bobby Scott, D-Va., noted at a hearing this month 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.

The industry wants to draw a 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, in Washington, told lawmakers last week.

Calling the Burr bill the weaker and less protective of the two, Rep. John Dingell, D-Mich., said 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 that it arbitrarily limits the damages states can seek.

Another sticking point may be the rights of citizens to sue spammers, which the Burr bill would deny. Rep. Cliff Stearns, R-Fla., questioned whether adding 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, in Olympia, opposed several provisions in the Burr bill, urging lawmakers not to restrict monetary damages.

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.

ISPs, meanwhile, are lobbying for legislation but not necessarily the strong measures sought by consumer advocates. Representatives from EarthLink Inc., of Atlanta; America Online Inc., of Dulles, Va.; and Microsoft Corp., of Redmond, Wash., testified this month 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.

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. "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."

Upton expressed optimism that the sponsors of the two bills would reach common ground and that legislation could be passed this year.

There is negotiating room for strengthening the Burr legislation by increasing caps on damage and closing some of the loopholes that critics have cited, Upton said. However, as lawmakers began discussing ways of reaching a compromise last week, disagreement remained over the issue of individuals right to sue.