Do We Need a Stronger Federal Law to Curb Junk E-Mail?
By: Source: AARP Bulletin Today Date Posted: 2004-02-06 15:21:00-05:00
Yes
Can Spam Act Has Gaping Loopholes
By John C. Mozena
We already know that we will need another anti-spam law, because the Can Spam Act fails the most basic test for anti-spam legislation: It doesn't actually tell anybody not to spam.
Rather, the new law requires spammers to be honest about who they are and what they're sending you. But as long as they adhere to basic honesty requirements, every marketer in the United States gets one free government-approved shot at each of our mailboxes. The new law really should have been labeled the "YOU CAN SPAM Act."
The potential problem here is obvious to everybody except Congress and the marketing industry: There are roughly 23 million small businesses in the United States. If just 1 percent of those small businesses sent you just one e-mail apiece per year, you'd average 630 messages in your in-box every day. Under Can Spam, those 630 messages would be perfectly legal, and even if you unsubscribed from each marketer's list, there'd be another 630 the next day, and the next.
Can Spam is what's called an opt-out law, meaning that consumers have to ask marketers to stop. What we need, and what is quickly becoming the legal standard in the rest of the world with regard to spam, is an opt-in law. "Opt in" means marketers need to get permission before contacting you.
That's already the way we handle some types of marketing in the United States, such as junk faxes and telemarketing to cell phones. That's also the way that most legitimate businesses run their e-mail marketing operations today. Unfortunately, Congress ignored the history of complete and utter failure of every other opt-out spam law passed in the United States and around the world. In more than 30 states, opt-out laws have failed.
Unfortunately, history is going to repeat itself with Can Spam, and we're going to need another law that truly requires marketers to change their behavior before we'll see a significant decrease in spam.
John C. Mozena is co-founder and vice president of the Coalition Against Unsolicited Commercial Email, an international grassroots consumer group.
No
Let's Give the New Law Time to Work
By Ronald L. Plesser
Yikes! Congress just passed the Can Spam Act, and it became law effective Jan. 1. Now there is a call for additional "stronger" federal legislation. This is ridiculous, until we can see what impact the first federal law of its type will have.
The Can Spam Act does two basic things. First, it creates the real threat of serious jail time for "bad" spammers who falsify their identities or violate other provisions of the act.
Second, it creates a national best practices standard that allows marketers to use e-mail for legitimate offers, and it requires them to inform consumers they can "opt out" of receiving these mailings. It gives the Federal Trade Commission (FTC) broad rule-making authority and gives federal and state agencies and Internet service providers new legal tools to use against spammers.
Spam—e-mail that is not from an identifiable sender and does not permit consumers to opt out of further messages—should be eliminated, but no single law can achieve that. Enforcement of the new law and technological innovations should help. In a recent news article, Alan Ralsky, one of the world's most prolific spammers, said the law's stiff penalties are making him "rethink" his practices.
E-commerce is becoming a more important and trusted way for a consumer to do business. This holiday season, a record $18.5 billion in purchases were made online.
In addition to fighting spam, it is critical that merchants and consumers be able to communicate over the Internet. This law strikes such a balance, unlike stringent "opt-in" provisions that would require prior consent from the consumer and were rejected by Congress. Opt-in requirements would prevent legitimate marketers from communicating with consumers.
The new law requires the FTC and the Department of Justice to report to Congress in two years on the impact of Can Spam. That is the time to consider new measures, not now. What we need now is strong enforcement and the funding to support it.
Ronald L. Plesser is a partner at Piper Rudnick LLP, a Washington law firm. He chairs the firm's Electronic Commerce & Privacy practice group.
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