Anti-Spam Bill Clears Senate

The U.S. Senate formally approved the negotiated House-Senate version of the Can Spam Act Tuesday afternoon, unanimously approving the nation’s first national anti-spam legislation. The legislation now returns to the U.S. House, where passage is expected in early December, to reconcile “technical” differences.

Saturday morning the House approved a modified version of the anti-spam legislation that passed the Senate in October. Because of the changes in the bill, another Senate vote was necessary. President Bush is expected to sign before the end of the year.

“This bill makes spamming an outlaw business and that this will be treated as priority issue,” said Sen. Ron Wyden (D.-OR), one of the co-sponsors, along with Sen. Conrad Burns (R.-MT), of the legislation. “If enforcement action takes place immediately after passage, we send a message to spammers that it is a new day.”

Consumers expecting to see a dramatic drop in unwanted email, however, are likely to be disappointed. Legitimate email marketers and publishers, along with political and charitable organizations, will still be allowed to send unsolicited email to consumers as long as the message contains an opt-out mechanism, a valid subject line indicating it is an advertisement and the legitimate physical address of the mailer.

The legislation, which pre-empts existing state anti-spam laws, imposes criminal and civil penalties for spammers who send fraudulent email using such standard spam tactics as false headers and misleading subject lines. It also criminalizes harvesting email addresses and hijacking consumers’ computers for the purpose of sending email, two other common spamming techniques.

The bill calls for statutory damages of $2 million for violations, tripled to $6 million for intentional violations and unlimited damages for fraud and abuse. In the most extreme cases, the bill calls for a maximum five-year prison sentence. Individuals are barred from suing spammers, a right reserved for Internet service providers and federal, state and local law enforcement agencies.

The bill also calls for the Federal Trade Commission (FTC) to investigate developing a national Do-Not-Spam list and contains provisions to limit wireless unsolicited commercial email.

“This pro-consumer measure is a significant beginning to controlling spam,” Wyden said. He also noted, “Kingpin spammers are not simpletons and we know many of them will try to move offshore, which will call for greater international cooperation.”

E-mail marketers and publishers pushed hard for one national standard that would pre-empt existing states laws, including the recently passed California law that carries much tougher restrictions than the federal legislation. The California opt-in law goes so far as to effectively ban ad-supported email newsletters.