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New bill could slam spammers

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(IDG) -- Cavalier spammers could possibly face millions of dollars in fines, a year in jail, or a nasty lawsuit from Internet service providers (ISP) if a new U.S. Senate bill gets passed, a U.S. Federal Trade Commission spokesman said Friday.

The FTC is hot on the trail of ubiquitous spammers and has come out in support of Senate bill S. 630, which would pit unlawful spam senders against a multifaceted enforcement scheme that would allow federal agencies, attorneys general and ISPs to receive injunctions against violators and recover damages.

Eileen Harrington of the FTC's Bureau of Consumer Protection testified before the Senate Subcommittee on Commerce, Science and Transportation Thursday, telling senators that the proliferation of spam is stifling online consumer confidence and e-commerce growth, as well as crippling ISPs.

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"Giving consumers the ability to choose the information they receive over the Internet ... seems likely to create more consumer confidence in the content and in the sender," Harrington said in her testimony, according to a transcript provided by the FTC.

Jason Catlett, president of Junkbusters Corp., a group that fights unwanted commercial solicitations, also testified before the Senate subcommittee Thursday, and agreed that spam has become a plague on Internet commerce.

"As e-mail marketing becomes synonymous with spam -- a tragedy because this is unnecessary and avoidable -- many consumers are deciding simply not to participate," Catlett testified, according to a transcript on the Junkbusters Web site.

The new bill would try to fight the damaging commercial effects of unwanted spam by requiring that senders of unsolicited commercial e-mail (UCE) disclose that the UCE is an advertisement or solicitation, give the receiver the opportunity to decline future UCE from the sender, known as an "opt-out" feature, and include their valid return e-mail and postal address.

There is currently no federal law on the books regulating spam, although some states have already put legislation in place.

The Senate bill, introduced by Subcommittee Chairman Conrad Burns, would also make it illegal to both send subsequent e-mail to someone who requested not to receive any further mail, and to send e-mail with a false or misleading subject or header. By cracking down on deceptive header and subject lines, consumers and marketers would benefit, Harrington said in her testimony.

Privacy lawyer Reed Freeman said that the FTC's statement on spam's effect on consumer confidence is "surprising in its breadth," indicating that the agency is very serious about regulating UCEs.

But while there is ample support for a law regulating spam, terms and enforcement of the legislation are still in play. While the Senate is considering S. 630, the House of Representatives is bouncing around a similar bill, HR. 718. While both bills ban misleading header and subject lines, have opt-out features and require a valid return e-mail address, "where the rubber hits the road is where it gets enforced," said Freeman.

The House bill allows for a private right of action, or the opportunity for individuals to sue, but does not have a criminal penalty, whereas the Senate bill is more stringent in that violators could face multiple liability from combinations of the Department of Justice (DOJ), the FTC, the state and ISPs.

Bill S. 630 "doesn't rely on one particular way to have its penalties felt," said Allen W. Hile, a representative of the FTC's Bureau of Consumer Protection.

In the Senate bill's penalty parfait, the Department of Justice could enforce criminal penalties of up to a year in jail, and violators could theoretically get hit with a lawsuit from an ISP, or charged with statutory damages from the state. Or, alternatively, spammers could possibly get the ISP and state combo, plus face FTC action that could imply penalties of up to $11,000 per violation. Perpetrators would not get hit by both the FTC and DOJ, however, given that they normally work together.

And given the FTC's penalty, unlawful spammers faced with the Senate bill could see their free Internet marketing get mighty costly.

"The way I read this is that every single piece of spam that violates (the FTC's jurisdiction under the bill) could end up with a $11,000 fine," said Hile.

But even if the Senate bill sounds hard-nosed, some anti-spam activists have complained that it is not tough enough.

Catlett indicated that he was not impressed with S. 630 because it is missing a private right of action and an "opt-in," meaning only consumers who requested spam would receive it, instead of the reactive "opt-out" clause, he said during an interview.

Catlett said that without the private right to action, individual consumers could do nothing about spam offenses without working through functionaries such as the FTC or their ISP, and that they were not likely to field every case, he said during the interview.

While enforcement wrangling will likely permeate future spam bill discussions, authorities are eager to lay down the law on UCEs. Experts like Freeman predict that a bill prohibiting false or misleading subject and header lines, an opt-out feature and a valid return e-mail address will be in place by the end of the year.

Of course, as Hile noted, "we can't predict what will happen on the Hill."



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RELATED SITES:
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FTC
Junkbusters

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