US House, Senate Agree on Anti-Spam Bill

Folic_Acid writes "Rep. Billy Tauzin, chairman of the House Energy and Commerce committee, has announced that the House and the Senate have reached a deal to both pass an anti-spam bill, the first ever federal anti-spam law in the United States. Specifically, the law contains: opt-out, authority for the FTC to set up a "Do-Not-SPAM" registry, criminal charges for fraudulent spam, including five years in prison, statutory damages of $2 million for violations, tripled to $6 million for intentional violations, unlimited damages for fraud and abuse." News.com has a copy of the bill and a story.

Comments

Exactly...

[setzman]

How will this be enforced? The global nature of the Internet seems to be unmanagable by a single government.

how long before...

[civilengineer]

some state court says that's unconstitutional and lets spammers spam?

Re:how long before...

[Loki_1929]

"how long before some state court says that's unconstitutional and lets spammers spam?"

Pretty long, seeing as state courts can't rule on a Federal issue. Spam, being 'insterstate commerce' (in a manner of speaking) is most certainly all Federal. I also doubt there are many Federal courts that would consider the question of the bill's constitutionality. You have the right to speak, not to be heard; most certainly not at someone else's expense. If you had the right to be heard by your audience, you could sue deaf people for violating your right to free speech. How absurd is that? Free speech protects you when you're standing on a corner preaching your religious views or publishing a political opposition newspaper. It does not force everyone to stop and listen to you speak, nor force anyone to buy a copy of your newspaper.

If spammers want to continue to spam legally, they ought to stand on a street corner and hand out fliers to anyone who wants one. Thus, the optimal example of an 'opt-in' system. The way it works now, they're jamming the fliers into your pocket, whether you want them or not, to the point that your pockets explode when you get home. Every time you try to cover your pockets, they find another way to jam another flier into your pants. Activity like that would get you shot in New York, and perhaps worse in L.A.

Re:How?

[peezer]

I think that congress (and your average citizen) believes that legislation is the solution to most problems. The SPAM wars will be fought and won with innovative technology, not with legislation. Don't get me wrong, some of the acts spammers engage in should definitely be illegal. But they should be illegal on principled grounds, no on the hope of detterence.

Not going to sign up for Don't-email-list

[deadmongrel]

The very idea of don't email list is stupid. the only way to fight spam is by attacking their business model. You get spam because some idiot thinks he is getting a good deal for the product that the spammer sells. don't the law makers know that there is a diff between phones and emails? it costs real money to call someone to sell something but it costs almost nothing to send out emails. Also what about security for these Don't-emails-lists(if they are created)? what are they going to do give the spammer a list of email address he shouldn't email? yeah right. I bet the spammers would support this bill.

Re:Translated version

[GreyPoopon]

If anyone wants to hear that in English, it sounds like they're saying that the MPAA- and RIAA- bots don't count as SPAM.

They do if the the intended recipient of the mail is not, indeed, using said protected material unlawfully. Hmmmmmm. This could be VERY interesting the next time they make a mistake on the identity of the alleged pirate.

So a false notice by the RIAA *D *is* SPAM?

[Jammer@CMH]

If I read that right, it appears to say that an electronic mail message sent by or on behalf of one or more lawful owners of copyright, patent, publicity, or trademark rights to an innocent person is SPAM. Fascinating. What is the RIAA's error rate, and what is the fine for repeated violations?

This is a BAD bill

[Anonymous Coward]

This is a BAD bill... it preempts all state spam laws -- some of which are actually decent, and let US the CONSUMERS go after the spammers instead of depending on fat, lazy, guberment morons to do it.

Don't preempt the SPAM state laws!!!

Re:The RIAA/MPAA has their mitts in this one too!

[originalTMAN]

I would 1.) Rather be notified if I was in violation of someone elses licence/copyright/patent/trademark. I like not getting randomly sued for... say... using a coca-cola logo on my homepage which sells homebrew snowboarding t-shirts. 2.) Would like the ability to notify others if they were violating my intellectual property. Maybe I'm missing something... how is this so different than a "friendly" notice. It's better than a supoena, no? Last time I checked, its not just coorporations that can have IP.

Here's what I'm going to do:

[jkujawa]

An experiment.

I'm going to create a new email account, and register it on the "do not spam" registry. It will have a random account name on my own domain.
I will not use this account for anything else.

As a control, I will create another random account under the same domain, and not use it anywhere, even on the "do not spam" registry.

I will measure how long it takes before the first address receives spam, how long before the second receives spam, and the amount of spam each receives.

Hypothesis: The first account will start receiving spam almost immediately. Due to the nature of the spam, the second should never receive spam unless someone is sending email to random 8-character accounts at my domain (brute force attack).

Re:Finally!

[revmoo]

No, It's a _horrible_ idea. Two things.

(1.) U.S. Laws only reach as far as U.S. borders. Where does 95% of spam come from?

(2.) What is to stop spammers(who have previously shown themselves to be willing to break the law and root people's servers to use as relays) from using this Do-not-spam list as a database to spam? I mean, think about it, a nice, large index of completely valid email addresses? This is spammer gold people!

Re:Nonsense

[corebreech]

So hate on haters.

Wow.

You're missing the point. The question isn't so much whether their email should be considered spam, as it is the fact that such a provision is front-loaded into legislation that on its face has absolutely nothing to do with copyright issues.

This is particularly relevant given the past instances of industry involvement in the legislative process, and most especially the DMCA itself, which it has been alleged saw language included at the last moment on behest of the RIAA that was never approved by any member of the House or Senate.

In other words, it is just another example of corruption of our government by the "entertainment" industry.

Maybe if these people spent less time choking our freedoms with self-serving laws and spent more time on creating art we wouldn't have to deal with fare such as Matrix: Sucks and Matrix: Really Sucks.

Re:Finally! - BAD, BAD, BAD

[schon]

This has been a long time coming

Judging by the text of the bill, not long enough.

Properly implemented, a law would be a good thing, but this misses on several counts..

First - it defines spam incorrectly.

Spam is unsolicited bulk email. This uses the term 'unsolicited commercial electronic mail message' - whether an email is commercial or not is irrelevant as to whether it is spam. Although the majority of spam is commercial in nature, not all of it is, just as not all unsolicited commercial email is spam (as evidenced by their need to include an exemption for copyright infringement notices.)

Second, the fact that it's opt-out, means that it legalizes spam - it's a pro-spam bill, not an anti-spam bill.

I haven't finished reading it, but if it overrides state legislation, then it's the worst possible outcome.

great... wait...

[griffjon]

How is this not an international please-spam-me,-here's-my-favorite-and-most-privat e-email-address list? Even if it prevents US companies from spamming you, it's like a golden list for most spammers in the world.

And even if they MD5 each address or something not-totally-braindead, it turns into a us spammer hash-checking, finding it on the do-not-spam list, and selling it to a foreign counterpart as a quality address.

Re:Finally..

[Joe Wagner]

As owner of a business who has taken spammers to court and whose lawfirm defended California's current antispam law in the CA Supreme Court, let me be emphatic: This is a horrible law. It absolutely overides California and all other state laws which is why the DMA is pushing for it so hard. It removes a private right of action for end users. Let's be clear:

This law makes it legal to send spam in all 50 states.

The law has many things wrong with it:

• It removes any and all laws individual states passed to protect their citizens.
• It removes private right of actions. Junk faxes are only just annoying rather than crippling today because of the TCPA, which allows Joe Public call to carpet any junk faxer in small claims court for $1500/fax.
• Anyone can spam you until you specifically asked them to stop -- what percentage of the 25 million business in the US do you think you have time to individually contact.
• "Valid" return addresses on spam offers no aid to people fighting spam. How does a spammer having some (possibly even valid) street address in an obscure corner of the world and an mail server that dumps all incoming email to /dev/null give me any help in fighting spam. A large percentage of our incoming spam all have "valid" return addresses.
• In 1991, Congress authorized the telephone "do not call list" by the FTC. That list took more than a decade to go into effect. How long do you think you'll wait for this one?
• "At the FTC's Spam Forum in May 2003, FTC officials and a representative of the National Association of Attorney's General stated clearly that neither the FTC nor state law enforcement agencies have the time, money, or resources, needed to engage in enough anti-spam prosecutions to make a dent in the problem." (Cauce.org)
• As currently written, the email "do not call list" will only be by individual email address, not by domain.

Time in earnest to call your local congressional rep. The Senate appears to be a lost cause.

This is not an anti-spam bill

[eaolson]

This is not an anti-spam bill. This is a pro-spam bill. (I'm looking at S.1231 on thomas.loc.gov, and assuming that's the latest version.)

It seems like the meat of this bill is in this clause:

... it shall be unlawful for any person to initiate the transmission of any UCE to a protected computer unless the message provides clear and conspicuous identification that the message is an advertisement or solicitation, by providing, as the first characters in the subject line, `ADV:'.

So, basically, spam all you want as long as the recipient isn't on the do-not-spam list, and as long as the spam is labeled. Point-by-point for today's news release:

1. Empowers American consumers with the right to opt-out of all unwanted and unsolicited commercial e-mail or SPAM.

   The bill is opt-out. Enough said.

2. Provides the FTC with the authority to set up a "Do-Not-SPAM" registry based on Chairman Tauzin's work on the "Do-Not-Call" registry for unwanted and unsolicited telemarketing telephone calls.

   Won't work, for many reasons that have been copiously explained elsewhere. Primarily, great, give the spammers a list of valid email addresses.

3. Grants the strongest available protection for parents and consumers to say "no" to the receipt of pornographic SPAM.

   The pornifity of the email is irrelevant. Spam is spam. Again, you have to say "no," possibly thousands or tens of thousands of times. Opt-out.

4. Makes it a crime, subject to five years in prison, to send fraudulent SPAM.

   But non-fraudulent spam is ok? I thought fraud, whatever the medium, was already illegal.

5. Allows the FTC and state attorneys general the ability to vigorously enforce the laws contained in the anti-SPAM legislation.

   I just don't see the point of a law where enforcement is not permitted.

6. Enforces statutory damages of $2 million for violations, tripled to $6 million for intentional violations, and unlimited damages for fraud and abuse.

   Spam is abuse of the email system. Who can sue for these statutory damages? The ISP, the recipient, the states?

IAAL

[unassimilatible]

Are you a lawyer? I am. I am not incorrect. The safe harbor provision has been widely-interpreted as applying to Web sites as well as OSPs. Web sites which, like /., allow anyone to post on them are considered OSPs for the purpose of DMCA.

And since Web sites are often maintained by various people, the DMCA safe harbor generally applies, which is why most commercial Web sites have DMCA contact info for an agent to receive notices of claimed infringement.

Obviously, if the infringer infringes on purpose, there is no safe harbor.

Opt-out is very bad for non-individual mail

[alehmann]

Much of the spam we get comes from mailing lists. This kind of scheme would require every list admin to submit all their mailing list addresses to some stupid opt out lists. There are many examples of this not being practical, such as the Debian bug tracking system which has a different email address of each bug (and there are over 200k). FWIW, it does receive spams that clutter up bug audit trails and are extremely annoying. Being allowed to spam should not be the default.