Senate Opens Door to Email Spam

by Mark Taylor

Amended to a bill that deals with telephone slamming, the amendment offered by Sen. Murkowski (R - Alaska) would allow junk email under certain conditions. First, that the sender identifies themselves with their name, physical address, electronic mail address and telephone number. Second, removal from the mailing list must be offered and accomplished upon the recipient's request.

Third, the Federal Trade Commission (FTC) has the power to prosecute violators through the civil (not criminal) courts. Violators can face a maximum fine of $15,000 for each incident. Fourth, states can take action against illegal spammers under the federal law. However, states cannot sue if the FTC is taking action against a spammer.

Additionally the law allows federal courts to be used for legal actions so state borders are not a hindrance to prosecuting offenders. Finally, under the law a person has accepted junk email if they respond to junk email solicitation (except to request removal) or bought a product or service through it.

The law would be a boon for spammers and allow them to send junk email with impunity. Instead of the opt-in approach favored by many in the Internet community, everyone on the Internet will become a target for spam. You will need to request removal from each mailing list that sends you spam. The law is a giant step backwards on the Internet and is obviously a gift to spammers.

Junk email has wrought massive problems on the Internet, from ceaseless consumer complaints to server crashes. Spam is used to advertise everything from the latest and most dubious money-making opportunity to hard-core pornography. Internet Service Providers (ISPs) bear the greatest expense since spam overloads servers and causes slowdowns.

Additionally ISPs have had to hire people just to investigate spam complaints. Suits brought by ISPs against spammers resulted in most companies, including the ubiquitous CyberPromo, leaving the business. Now, ISPs have to wonder whether this law means they can or cannot filter out junk email for their customers.

Proponents of spam like to hype the fact this bill would require them to provide full identification. That is fine and good, but since when has spam ever done this? Once spammers realized people were complaining and knocking them off the Net, they began using fake headers and false email addresses. Ninety percent of all junk email has faked header information meant to deter people from learning where it came from in the first place.

It's unlikely that this will change much if the law is enacted. Most spammers will probably continue to use fake headers to evade detection the possibility of paying a fine. CyberPromo, the former king of spam, used fake headers all the time, despite claims it was trying to become more ethical.

The law also gives power to the FTC to become the chief enforcer over spam. There are several things wrong with that. The first is that it gives the ffederal government, via the FTC, a foothold on the Internet as a regulator of content.

For many in the anti-spam community, the FTC's role is a bad joke. In the past, the agency didn't want to deal with the issue and instead tried to get the industry to create voluntary codes of conduct. That sounded good on paper but, as many argued, spammers had no real incentive to abide by such codes.

And they were right. Remove requests earned senders more junk email; Netizens realized the joke was on them. While the FTC would go after big junk emailers, most of them now are small operations comparable to boiler room operations. They open up shop for a few days with throw-away accounts and spam. Then they close up shop before anyone can chase them off the Net.

The FTC also will likely not put spam on high priority unless it involves pyramid schemes or other illegal promotions. Making the FTC the spam cop is like catching rum runners in the 1920's, a daunting task. The full weight of the U.S. government was unable to halt alcohol consumption. Perhaps they can find an Eliot Ness type character to take over and track down the Al Capones of junk email.

Of course one reason that the spam issue is being punted to the FTC is that politicians do not want to deal with it. When lawmakers do not want to deal with something, the easiest way to avoid problems is to turn it over to a government agency. That way when people complain, the politician can point a finger to the agency and blame them.

The FTC does not want to police spam. But when the complaints come in about how ineffective the FTC is at prosecuting violators, legislators will shake their heads and agree that things are bad. Then another costly round of committee hearings and agency studies will end up again doing nothing to solve the problem.

The law is a bad idea and makes spam legitimate. The Senate is out of touch with the Internet community, much of which wants it banned. Tell your Senators what you think; otherwise, the next spam you get may come courtesy of the U.S. Senate.