Ninja Warriors

My first stop at Supercomm last week was an auditorium where FCC chair William Kennard was fielding a wide range of questions on worldwide attempts to regulate the Internet.

He said firmly and repeatedly that he’s against regulation, but added that incumbent regulated industries always have a natural advantage in Washington. In addition, he mentioned government must work on the side of the new, insurgent industries that don’t know the system as well.

The lobbyists for privilege are “ninja warriors. They work at night. You wake up the next day and see things in legislation you hadn’t seen before.”

I thought of that a few days later when anti-spam activist Anthony Phipps wrote to complain about a new bill on spam suddenly offered by Montana Republican Conrad Burns.

Most troubling about S. 2542, he said, was some language about “pre-existing business relationships.” Basically, it reads that if you’ve done business with someone in the last five years or had a chance to opt out of their mail and didn’t, their spam is legal.

According to Phipps, this means “If you get a piece of spam and don’t respond with an unsubscribe request, you now have a pre-existing business relationship with that spammer. That means everything they send you from that point on isn’t considered spam and isn’t covered by the bill!” There’s also no “private right of action” in the new bill, which means individual email users can’t sue spammers.

If that weren’t bad enough, the co-sponsors of the new bill include Sen. Robert Torricelli, previously known for his work on bills supported by the Direct Marketing Association, and Sen. Ron Wyden of Oregon, who generally knows better. In other words, Phipps smelled some ninja warrior activity.

The Coalition Against Unsolicited Commercial Email has been fighting the good fight on this front for years, and thought it was finally going to get something workable in HR 3113, the Unsolicited Commercial Electronic Mail Act of 2000. Its statement noted, “CAUCE is deeply concerned that the newly introduced Senate bill omits portions of the compromise language reached in the House and results in a breakdown of the carefully achieved consensus.”

The fact is that if you want to win in Washington, you have to be able and willing to bear the financial burden. Ordinary users are not, which is why I fear we’re about to be rolled, big-time, by our “servants” there.

Only big companies can pay the price, and the smart ones do pay it, as the Boston Globe’s Hiawatha Bray recently reported. In his story, chairman Andy Grove revealed that he hired antitrust experts and hammered his own people on antitrust issues 15 years ago. His aim was to guarantee they wouldn’t say anything to anyone that might be misinterpreted. As a result, Intel’s near monopoly on microprocessors rolls merrily on while Bill Gates faces the political guillotine.

This sort of thing happens all the time. If you’re not involved in the political process full time, no matter how corrupting it may seem, others who are will use it against you. As savvy as FCC chair Kennard is, he knows that too.

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