The latest proposed anti-spam legislation: How will it affect marketers?
Over the past month, spam in my inbox has more than doubled. Yet a small light shines on the horizon.
In February, I outlined changes on the congressional landscape that could open the door for anti-spam legislation. On April 10, Sen. Conrad Burns introduced the CAN-SPAM Act of 2003 (S. 877). Since my stint as a congressional intern in 1995, I never wanted legislation to regulate e-commerce. But I must say this bill is a welcome breath of fresh air in a sullied corner of the Internet.
No More State E-Mail Laws
First and foremost, if enacted, this legislation would preempt state email laws. Permission emailers are caught in the crosshairs of numerous state laws. It’s impossible to comply with every one, and apparently Burns recognizes this. At the same time, it gives state attorneys general enforcement power, albeit with federal power superseding those of individual states.
Defining E-Mail Pollution
Three years ago, the Association for Interactive Media’s (AIM’s) Council for Responsible E-mail set the first self-regulatory email best practices with Six Resolutions for Responsible E-Mailers. Burns appears to have adapted many of these, further defining five of the six. The two most important define fraudulent email header uses and outlaw email address harvesting. These two practices are reflected in nearly every piece of spam in my inbox.
Not all the bill’s definitions are as clear. The definition of unsolicited commercial email (UCE) omits "bulk," a critical term. This leaves open a door for filtering and litigating against even a single piece of spam.
On the permission front, definitions of "affirmative" and "implied" consent are vague in respect to marketers with long transaction cycles and for those with some types of third-party information exchanges.
This legislation does not require subject line labeling, such as the term "ADV," which some states require on all commercial email. But the bill still includes a vague requirement that advertisements be identified. Its wording on fraudulent subject lines could preclude some teaser copy that’s standard in direct marketing.
Power to the Post
When unethical marketers send fraudulent postal mail, the U.S. Postal Inspection Service tracks down perpetrators and takes action. This email legislation grants increased power to ISPs for similar action. The bill would grant ISPs carte blanche to filter any amount or type of email and to take civil action against violators of their network policies.
If anyone can track spam or combine filtering with litigation, it’s the ISPs. But this will inevitably increase the rate of false positives, frustrating legitimate emailers even further. Before the bill becomes law, emailers and ISPs must work together to devise better solutions to the growing false-positive problem.
Glasses to Clear Up Nearsightedness
The bill’s last portion is troubling. It calls for a "study of effects of unsolicited commercial electronic mail" but doesn’t mention the problem is global in nature. Spam is a worldwide epidemic. This legislation encourages domestic spammers to move offshore.
If you agree, voice your concerns. Ask Congress to expand its scope and form a commission similar to the Advisory Commission on Electronic Commerce to consider the entire problem with representatives from across the globe. Perhaps the Federal Trade Commission will make a similar recommendation based on the findings from this week’s Spam Forum.
Burns, chairman of the Senate Commerce Committee’s Communications Subcommittee, has the support of key politicians. The first is Sen. Ron Wyden, Congress’s most vocal champion for Internet issues, who co-authored the Internet Tax Freedom Act. Also behind him are Sen. Ted Stevens, long-standing chairman of the Senate Appropriations Committee, perhaps the most powerful committee seat in Congress; and Sen. John Breaux, the ranking member on the Senate Commerce Committee’s Science, Technology, and Space Subcommittee. With this team, and a suite of others who will almost certainly sign on in coming weeks, this bill has a good chance in the Senate.
On the House side, it’s rumored Rep. Billy Tauzin, chairman of the House Energy and Commerce Committee, will introduce similar legislation, rather than the perennial introducer Rep. Heather Wilson. If Tauzin’s bill passes in the House and Burns’s passes in the Senate, a joint committee will work merge the two bills into one to be voted on by the House and Senate. Should this happen, an anti-spam bill will have a much greater chance of congressional passage.
CorrectionIn my last column, in the "email confusion" bullet, I noted a sender’s email address would be removed, rather than the list subscriber’s. This was true with an earlier version of a popular email broadcast program, but the newer version enables the subscriber address to be removed. Thanks to the readers who noted this and corrected me.
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Ben Isaacson is the privacy and compliance leader for Experian, overseeing Internet and advanced technology privacy and compliance affairs across Experian Marketing Services products including CheetahMail, Digital Advertising Services, and Hitwise. Mr. Isaacson's previous roles include serving as the executive director of the Association for Interactive Marketing (AIM), a former DMA subsidiary. He regularly blogs at EmailResponsibly.com.
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