|The "You CAN SPAM Act" News, January 1-10, 2004|
|"Congress Passes One of the Most Ill-crafted Pieces of Legislation in Some Time.|
U.S. Congress Passes the "You CAN SPAM Act", December 2003, Effective (Sort of) January 1, 2004..
Our Senators and Congressional Representatives, in an almost unanimous paroxysm of delight at voting for a law they knew was bad, affecting technology they did not understand, but a law which they believed would convince the average American Citizen that Congress was REALLY on their side while costing Congress nothing, voted into law what many anti-spammers refer to as the "You CAN SPAM Act" of 2003. The law takes effect January 1, 2004.
According to reports from the anti-spam community late on January 1, for the most part the spammers seem to be blithely ignoring the prohibitions written into the law, and the flood of spam continues unabated. AOL users report that by the end of January 1, 2004, AOL had reported the usual flow of spam, somewhere in the neighborhood of 1.5 BILLION trapped by AOL spam filters in just the first day of the new year. Business as usual.
The underlying problem with this bit of feel-good legislation is that it implicitly legalizes unsolicited bulk email. It requires only after the fact opt-out, thus giving spammers the first bite. Which companies will of course take. Which will of course continue to flood users' inboxes with spam, i.e. unsolicited bulk email.
There are several aspects of the law most troubling to me. One is that individual American citizens are explicitly denied a right of action if spammed. That right is reserved to ISPs. This part of the law seems unconstitutional on its face (IANAL), but I am sure that clause is there because the DMA, Microsoft, and other corporations wanted it. Further, the law preempts state legislation. Part of the final rush to pass the "You CAN Spam Act" as 2003 slipped away was motivated by the would be corporate spammers' fear of looming California legislation, slated to go into effect January 1, 2004. That legislation would have required "opt-in", i.e. any bulk email not subscribed to in advance would have been illegal under the California law. The DMA and the current and prospective mainsleaze spammers were terrified they were about to have a clear legal prohibition against their abusive activities. When you see a law rushed into force like this with a major component left dangling, namely that the FTC come up with some sort of subject tag for pornography sometime in the near future, you know that once again corporate money has bought the finest law money can buy.
If law enforcement agencies choose to enforce the prohibitions in the new law against certain acts, such as proxy hijacking and other unauthorized use of computers, the law will achieve the aim of the DMA and the companies whose lobbyists purchashed this flawed legislation. The fly by night criminal spammers may be reduced in number. Leaving the way clear for the legitimate spam of the mainsleazers. That is the only purpose of this legislation. This law will NOT stop spam, unsolicited bulk email. For the most part, the current major spam gangs were already engaging in illegal activities, doing so with little fear of consequences. Why should this law make any difference in that regard, since the authorities had been so slow to understand the crime wave the Internet had fostered and react to it?
Of course the question then becomes what do we do when our inboxes fill up just as completely, rendering them just as useless, with unsolicited spam from "legitimate" companies, with subject lines that flag them as advertisements. This assumes the FTC, charged with administering this law, comes up with guidelines for tagging such spam as pornographic bulk emails. That requirement does not go into effect for several months. And the FTC appears to have no plan of action they have made public yet.
ISPs who don't want their customers to flee to other ISPs that are willing to block based on these tags will immediately bounce all such legal spam. So in the end the DMA and the corporations may not get their way. Whether they give up or go back to Congress later in 2004 as this starts happening and try to get a new law that forces ISPs to accept their spam will be an interesting trend to watch for.
Information on the law from the Library of Congress on thomas.loc.gov:
S877....limitations and penalties on the transmission of unsolicited commercial electronic mail
Information on the law at spamlaws.com:
spamlaws.com: CAN-SPAM Act of 2003
My letter to Congress on the spam email issue from mid-2003:
Spam Email Legislation Issues: Free Speech or Trespass to Chattel
There has been a great deal written on the content and possible consequences of the so-called "CAN SPAM Act" in the online media. It appears the majority of the commentators are no more optimistic nor confident in a positive outcome from this law than am I. Here is a sampling of opinion:
The "Yes, You Can Spam" Act of 2003 (Ed Foster, Infoworld)
Bush OKs spam bill--but critics not convinced
Spamhaus Position on CAN-SPAM Act of 2003 (S.877 / HR 2214)
Why the new federal CAN Spam law probably won't work
MIKE WENDLAND: Bill to stop e-mail spam will do just the opposite
Needed: A Beefier CAN-SPAM Bill
The pending California legislation was a much more realistic response to the problem, and clearly what the DMA and the corporations that want to spam feared themost:
California Senator Slams 'Can Spam'
California Senate Passes Tough Opt-In Anti-Spam Bill
Will California’s Spam Law Kill Your Email Marketing?
Of course the real icing on the cake, and I know this will come as a great shock to the average American citizen and voter, is that it is now being reported that a large number of members of Congress have themselves engaged spammers to send out unsolicited bulk email on their behalf. Of course Congress has a strong track record oF reserving the right to commit certain acts it denies the mere citizens of the Republic. It was nearly the 21st Century before wage and salary and employment rights were extended to Congressional staff. Why should this problem be any different?
Congress Stops Spam, But Not It's Own--January 14, 2004
Legislators can spam us? That's what I call obscene. January 08, 2004
We Hate Spam, Congress Says (Except Ours). New York Times, Dec. 28, 2003
Congress says it hates spam (except its own). News.com, Dec. 28, 2003
Request for Information - National Do Not E-Mail Registry|
ftc.gov. February 23, 2004.
The Federal Trade Commission has issued a Request for Information (RFI) seeking technical information that could assist in creating a plan and timetable for establishing a National Do Not E-mail Registry as called for by the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the CAN-SPAM Act).
Request for Information - National Do Not E-Mail Registry