Is This the Year for a Federal Solution to Spam?

In the past few weeks, I’ve had dozens of conversations about “the solutions to spam.” They always turn into conversations about what’s going to happen in Congress this year and what, if any, effect it will have on legitimate emailers. As the first in an ongoing series of updates, here’s an analysis of the situation and a description of what emailers should be thinking about with regard to federal legislation.

First, let’s review what’s happened thus far:

• July 19, 2000: The Unsolicited Electronic Mail Act of 2000 (introduced by Rep. Heather Wilson) passes the House of Representatives 427 to 1. It never gets to the Senate for vote.
• June 5, 2001: The Unsolicited Commercial Electronic Mail Act of 2001 (also introduced by Wilson) gets placed on the House calendar for a vote. A vote never occurs.
• October 16, 2002: The CAN SPAM Act of 2001 (introduced by Sen. Conrad Burns) gets placed on the Senate calendar for a vote. A vote never occurs.
• 1999-2002: Twenty-six state laws regulating commercial email are put on the books. California, Virginia, and Washington are in the process of enforcement of their laws.

Congressional Update

Now let’s talk about how the congressional and email industry landscapes have changed in the last year and what effects the changes may have on any anti-spam bill. The first change is with the leadership of the 108th Congress. Sen. John McCain is back in charge of Senate Commerce, Science, and Transportation Committee, with Sen. Ron Wyden as the co-chairman of the Science, Technology, and Space Subcommittee. McCain has always been pro-business and will be cautious about pushing Internet bills through his committee. However, with Wyden in a leadership role and as a co-sponsor of the CAN SPAM Act, we should see little resistance to its passage through the committee and eventual placement on the Senate calendar.

On the House side, Rep. Billy Tauzin is now in charge of the House Energy and Commerce Committee, and Rep. Cliff Stearns is the chairman of the Commerce, Trade, and Consumer Protection Subcommittee. Though Tauzin has been relatively quiet on spam issues, Stearns has been ardent in his advocacy of consumer privacy and is getting set to reintroduce his own sweeping privacy bill in the next few weeks.

Industry Update

The industry has seen one major change this year. The Direct Marketing Association (DMA) has finally come to believe spam is killing the email medium and state laws are posing a great threat to legitimate commercial email. The DMA now officially supports the idea of legislation; however, it will take some smooth maneuvering to work out wording that will appease both the direct marketers and the powerful telecom and ISP lobbies.

In addition to the DMA, we’ve seen continuous influence by the American Civil Liberties Union (ACLU) as it relates to the free speech and labeling clauses in past legislation, as well as financial services interests that are adamant about ISP rights of refusal and their non-delivery of critical messaging.

Elsewhere in the industry, we’ve seen the emergence of two industry bodies with opinions about spam — and with lobbying intentions. The Interactive Advertising Bureau (IAB) in October formed an email committee, which later issued guidelines for ethical email.

More recently, a number of email service bureaus formed the Email Service Provider (ESP) Coalition under the aegis of the Network Advertising Initiative (NAI), which was previously successful in getting the Federal Trade Commission (FTC) to approve online advertising networks’ self-regulatory guidelines.

Finally, we come to the email users’ changed perceptions this year. According to a recent Harris Interactive study, more than 75 percent of respondents now support federal anti-spam legislation. As you know, legislators are quick to point to constituent opinion as evidence for their causes.

Technology Update

On the flip side, there have been some tremendous technology changes over the past year, with the rise of server-side filters such as Brightmail (filtering 16 billion emails per month) and client-side filters, making it much easier for users to block spam. Perhaps the greatest trend on the client side is the easy-to-identify anti-spam buttons on AOL 8’s, Yahoo’s, and Hotmail’s client tools.

Still, most of the discussion taking place within the email community these days is about public, third-party blacklists; private ISP blacklists; and initiatives to get placed on ISP “whitelist” programs. This discussion is making its way to Congress as the ISPs fight for a stronger right of refusal of bulk email and greater enforcement powers to take legal action against violators of their policies. Marketers should also not be surprised if blacklists rear their heads in the federal debate and wording is introduced in legislation to legitimize their use.

In the next few weeks, Burns’s CAN SPAM Act will be reintroduced, and it will likely gain the necessary momentum to pass through the Senate Commerce Committee in the next few months. I believe this piece of legislation has the greatest chance for congressional passage this year. If it does, it will supersede the reintroduction of other anti-spam bills. In a future column, I will analyze the bill and offer comments on how it might affect commercial emailers.

In the meantime, marketers should review last years’ bill. There probably won’t be too many changes in its scope and approach toward the email industry. During the debates last year, few marketers were involved in the discussions. Remember, elected representatives are available for your comments and interests at any time (especially those of you in Burns’s home state of Montana!). If you are at all interested, contact any member of the Senate Commerce Committee and voice your concerns or support to the staff member who is working on this bill. Finally, I would be remiss not to mention these staffers contact representatives of the industry to request information and insight.

What do you think about federal legislation this year? Send me your comments.