Senate Approves CAN SPAM Act

The bill, which would override all existing state anti-spam laws, puts numerous restrictions on the marketing e-mail messages companies can send to users, levies fines and jail terms for offenders, and instructs the Federal Trade Commission to report to Congress on a plan to create a 'do-not-spam' list, one similar to the that recently put into place by the FTC which prevents telemarketers from calling consumers who have added their names and phone numbers to the list.

Originally, the Senate passed its own version of the 'CAN SPAM Act' in late October by a vote of 97-0, but differences abounded between the two pieces of legislation. After the House moved on its version Saturday by a vote of 397-5, Senator Conrad Burns (R-Mt.), one of the two co-authors of the Senate edition, applauded the House.

"We have all seen the negative impacts of spam and know that the toxic sea of spam threatens to engulf the very medium of email. The passage of CAN-SPAM will help to stem the tide of this digital dreck," he said in a statement.

On Tuesday, the Senate gave final approval to the CAN SPAM Act, acceding to the House's version in several areas.

"We passed our version of the bill by unanimous approval, with changes, after discussions with the House," said Jennifer O'Shea, a spokeswoman for Senator Burns. "It was amended slightly, some technical changes were made, and then it was passed back to the House."

The next move in the process will come next week, said O'Shea, when the House is expected to puts its final stamp of on the bill. President Bush has previously indicated that he will sign the legislation.

The CAN SPAM Act allows e-mail marketers to send unsolicited messages to users, but requires that an 'opt-out' mechanism be placed in every message, giving consumers the opportunity to decline additional mail.

Additionally, it prohibits false or misleading headers and subject lines so that users can note the true origin of the e-mail, and Internet providers and third-party spam filtering firms can identify high-volume spammers.

The differences between the House and Senate versions lie primarily in two areas: damages and valid addresses for all commercial bulk e-mail. The approved Senate bill agrees to the House's version in both areas.

The bill will levy fines of $250 per spam e-mail, with a cap of $2 million that can climb to $6 million in aggravated, repeat violations. (The original Senate version laid out fines of $100 per message, with a maximum fine of $3 million in aggravated instances.)

The House bill had also applied its requirements -- including a valid reply-to address, a valid postal address, and honest headers and subject lines -- to all pieces of commercial e-mail, not just unsolicited commercial messages, which the Senate had originally mandated.

"The CAN SPAM law will help the Internet remain open for business and keep Americans' in-boxes closed to inappropriate and unwanted spam e-mail," said co-author Senator Ron Wyden (D-Ore) in a joint statement issued Tuesday with Burns.

Criminal charges are also part and parcel of the CAN SPAM Act, with penalties ranging up to five years in prison for such practices as hacking into another person's computer with the intent of sending spam from the hijacked machine, falsifying header information in bulk junk mail, and registering five or more e-mail accounts using false information then using those ill-gotten accounts to blow spam onto the Internet.

Although the bill does not mandate the creation of a 'do-not-spam' list -- something that many analysts have said would be unworkable -- it does direct the FTC to explore the pros and cons of such as list, as well as its feasibility.

Industry and analyst reaction to the impending passage of the CAN SPAM Act were mixed.

On Saturday, Bill Gates, Microsoft's chairman and chief technology officer, issued a formal statement calling the legislation "a milestone in the battle against spam," and noted that his company "supports the strong enforcement provisions, and the ban on falsifying the origin of e-mail solicitations and illegally obtaining lists of e-mail addresses, both of which will help Internet service providers prosecute spammers."

Although not in the forefront of anti-spam efforts, Microsoft has recently been paying attention to the problem with new technology rolled into its Outlook 2003 e-mail client and Hotmail Web-based e-mail service, as well as a spam-fighting add-on to its Exchange Server 2003 that will be available sometime in the first half of 2004.

Other experts were less impressed by the CAN SPAM Act, and its potential for shutting down spam.

"We're cautiously optimistic," said David Ferris, an analyst with Ferris Research, a San Francisco-based firm that tracks the messaging market. "But legislation isn't the primary way of controlling spam."

Rather than rely on just one method of stemming spam -- in this case, new laws, penalties, and enforcement mechanisms -- Ferris believes it will take a mixture of techniques, including technology and a revised opinion of mass-mailed messages from legitimate corporate senders to really put a stop to spam.

"It's just wrong to expect too much of this legislation," he concluded.

This story courtesy of TechWeb .