Senate Panel Overwhelmingly Passes Anti-Spam Bill

WASHINGTON — The U.S. Senate Commerce Committee approved legislation Thursday that could cost spammers who use false headers or misleading subject lines up to a year in jail and a maximum fine of $1 million. The sponsors of the bill, Conrad Burns (R.-Mont.) and Ron Wyden (D.-Ore.) promised that the penalties would get even tougher before the full Senate votes on the legislation.

The Can Spam Act (S. 877) requires that commercial emailers use clear and conspicuous identification that the message is an advertisement or solicitation and that the email contains an opt-out provision. Under the bill, unsolicited commercial email must contain the valid physical address of the sender.

The bill also beefs up penalties for address harvesting and dictionary attacks, using scripts or other automated means to establish multiple electronic mail accounts to avoid detection and to knowingly relay or re-transmit an unsolicited commercial electronic message.

In a nod to Sen. Charles Schumer’s (D.-N.Y.) proposal to create a national Do-Not-Email list similar to the Federal Trade Commission’s (FTC) Do-Not-Call registry, the bill calls for the FTC to submit to Congress recommendations for a workable plan and timetable for creating a national list of consumers who want to opt out of all unsolicited commercial emails.

The legislation would pre-empt state anti-spam laws, but give states the right to establish tougher penalties for spammers under anti-fraud laws.

Contending the penalties contained in the Burns-Wyden bill were not harsh enough, Sen. Bill Nelson (D.-Fla.) proposed and then withdrew an amendment to the bill to use the civil Federal Racketeer Influenced and Corrupt Organizations Act (RICO) to crack down on what Nelson calls the worst of email Internet solicitations — spam sent by people seeking money illegally or engaged in other illegal acts.

“The bill will get tougher as we go forward,” Wyden promised Nelson and other members of the committee. “We want to come down hard with hob-nail boots on big time spammers.”

In a separate vote, the Commerce Committee also voted to give the FTC broader authority to go after cross-border spammers by approving the agency’s recent request to bypass certain disclosure laws required under the Right to Financial Privacy Act (RFPA) and the Electronic Communications Privacy Act (ECPA).

The ease in which the legislation passed the committee is another sign of Congress’ willingness to pass federal legislation in an effort to stop the flood of spam clogging mailboxes. In the past, anti-spam legislation has failed to gain traction due to free speech concerns and opposition by direct marketers.

However, with the volume of spam reaching 45 percent of all electronic mail, lawmakers supporting anti-spam legislation feel the issue has reached a critical mass.

In the House of Representatives, Billy Tauzin (R.-La.), chairman of the Energy and Commerce Committee, and Judiciary Chairman James Sensenbrenner (R.-Wisc.) are sponsoring similar legislation to the Burns-Wyden bill.

“While we take slightly different approaches, I am pleased to see the Senate Commerce Committee take action on the growing problem of spam,” Tauzin said in a statement. “Stemming the flow of unsolicited email to protect consumers from fraudulent schemes and pornographic come-ons should be one of our top priorities in the coming months.”

In addition, Silicon Valley Rep. Zoe Lofgren (D.-Calif.) has prepared a bill creating a bounty for the first person who reports a particular spammer and establishes criminal penalties for fraudulent spam. Lofgen also wants unsolicited email to have labeled subject lines, such as ADV (advertising).

On Wednesday, Rep. Rick Boucher (D.-Va.) introduced yet another anti-spam bill calling for penalties of two years of prison time for spammers.