Congress Sends Anti-Spam Bill To White House

sunbird writes "At just after 5 o'clock EST, the House concurred to the Senate's amendments to the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (or "CAN-SPAM") (bill in PDF format: here or here). Although the bill will prohibit certain tactics (such as hiding return addresses), critics state that the bill does not go far enough (see this press release). The bill will provide criminal penalties for violations of its provisions (up to five years behind bars), but will not allow private parties to sue spammers. News reports indicate (SF Gate or Forbes) that Bush intends to sign the bill. Prior Slashdot articles are here: 1 2 3."

what to do

[senatorpjt]

The ability for private parties to sue spammers when there is a documented attempt to stop it might help. Most people can't do it, but there are enough people who know what they're doing to be able to track the actual individuals down that it would seem to be helpful.

litigation wont work

[adamruck]

lititgation is not going to help the spam situation, the result of anti-spam laws in the us is simply going to mean that spam will be routed through some foreign country

Re:litigation wont work

[gcaseye6677]

This doesn't really change much, in that state laws by definition are powerless to stop spam. California will have NO luck whatsoever prosecuting a spammer outside the U.S, and very little luck with a spammer in Wisconsin. There is certainly nothing in the law that requires ISPs or anyone else to deliver spam, so existing blocking and filtering techniques are not affected. Technological solutions are really the only thing that can make an impact on spam, and it helps to be able to prosecute someone who forges headers.

How can a private party not sue?

[pyite]

I'm curious as how they can limit a private party from suing a spammer. Tell me if I'm reading this wrong:

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

(Emphasis mine)

Definition of 'Marketer'

[pipingguy]

...it gives each marketer in the United States one free shot at each consumer's e-mail inbox

Can a subcontracted person be defined as a 'marketer'? I.E., Joe Spammer pays 'John Smith' $50 to one-time spam 3,000,000 addresses from his email account. 'John Smith' uses a valid return address but abandons account after the dirty deed is done. Technically within the law?

Yeah. Democrats never do that.

[Anonymous Coward]

Have you perhaps looked at laws and their selective enforcement lately? A woman can rape a child, have his baby, and sue him for child support, maybe she'll go to jail. A woman can lie to a man she's not married to about whether a child is his, and even if this is later shown to be false, he is still obligated to pay her money? A woman can be with a man who doesn't adopt her pre-existing children, and if they get used to him, he now owes THEM money?

W.T.F.

The Democrats want to take you money and give it to someone else, because they feel guilty about being rich and lying all the time, so you should too. The Republicans just want to make sure you're not thinking bad thoughts, and fucking the right person, unless that person is a mistress, in which case be discreet so "those" people don't end up in *their* country club. Oh and rich people should be allowed to fly to europe for abortions, but poor people should be forced to have kids, preferably uneducated, to keep the price of manual labor affordable.

Private Party vs Company / ISP

[ryanw]

I know it doesn't allow Private Parties to sue, but I have affiliations with a smaller company that is an ISP for other ISP's. They have like 8 OC48's. Would THEY be able to sue people due to spams I receive through their network?

Re:The United States Anti-Spam Bill

[MrLint]

well watch soon the spammers will sue you for blocking their spam as it blocks legally protected interstate trade.

Concerns by a CEO who has sued spammers

[Joe Wagner]

I am the CEO of Hypertouch Inc, one of the few corporations in California to have brought suit against a spammer under the existing CA anti-spam laws, and the only person so far who has be able to get the local DA to take a criminal complaints against spammers under the criminal provision of CA law. (see http://press.hypertouch.com/) Some of the "minor changes" that the Senate made before sending it back to the House include changing the statutory damages from a flat $25 to "up to $25." Now small ISPs can't even count on the paltry $25/message when they decide to take a spammer on in Federal Court.

I should note one interesting wrinkle. Unlike what is common in other Federal laws, the act "supersedes any statute, regulation, or rule of a State or political subdivision of a State " but says _nothing_ about the District of Columbia. Soooo, if people can rally the DC council to pass a California-like law, perhaps there may be a new place to host your mail servers.

A final copy of the act can be found on my website. http://www.hypertouch.com/legal/s877-eas.html [hypertouch.com]
I'm pretty pessimistic about things right now. Here are my chief concerns about the bill.

1."I CAN SPAM " Act legalizes unlimited spam -- even after"opt-outs "
The "SEPARATE LINES OF BUSINESS OR DIVISIONS " clause in the act permits spammers to send repeatedly to you even after you've opted out as long as they change domain names, a.k.a. lines of business.

(B) SEPARATE LINES OF BUSINESS OR DIVISIONS- If an entity operates through separate lines of business or divisions and holds itself out to the recipient of the message, in complying with the requirement under section 5(a)(5)(B) [the opt out section], as that particular line of business or division rather than as the entity of which such line of business or division is a part, then the line of business or the division shall be treated as the sender of such message for purposes of this Act.

The impression we have is that the DMA asked for this so that one cannot opt out of spam from the Fortune 500 by giving notice to their corporate HQ, you have to track down each"Division. " But more to the glorious point from the Viagra spammers perspective, see what happens if I opt out of a spam for today's mail bin: (picked at random)

Easiest method to enlarge your $&#@%, stick on the patch, and forget about it! easy as 1-2-3. Find out how we can help your manhood [url in spam: www.prosize-health.biz/in.php?id=43&p_id=2 ]

By my sending email (or going to Prosize-Health.biz or whatever hoops they choose to put up for their process), I can"opt out. " However that spammer will be able to spam me LEGALLY from all of their other lines of business, e.g. Biggersize-health.biz, etc. Note that the spammer's email only represents itself as Prosize-Health.biz... All they have to do is spend $7 every couple of weeks for a new domain for their new"Line of Busines " (they might even bother to call it a new Division) and they are home free. There is NOTHING I can do to stop this. I can track down every big spammer and personally serve them with an opt-out, but that doesn't trickle down to their thousands of "Divisions. "
Let's be clear -- Spammers are already talking about this open license on their bulletin boards and mailing lists.

2."I CAN SPAM " punishes only the spammer, not the marketer
By rotating through US based spammers, or using untraceable overseas spammers, often in Russia or China, businesses will be allowed to advertise via spam with abandon. The great strength of the upcoming California law is that is target both the marketer and the spammer. That will be gone when California laws are made void. For example, we have been trying to get Discover Credit Card to stop sending spam to us for over 18 months. They literally just regularly rotate through new

Attack the source of spam...

[i8a4re]

and not the spammers. I remember a while back there was a posting about the telemarketers that gave their phone number. After a few phone calls, they decided they didn't like their own medicine very much and even changed their phone number. Like most things we American's take on, we work our asses off for a very short period of time and then get tired of trying and most of us give up. I propose that we contact the companies whose products are advertised in spam, and inform them of how we do not approve of their marketing method.

Yes, spam is cheap and that is why it is so profitable for not only the spammer but the company that paid a direct marketing firm to advertise their product. Most companies have toll free numbers. If 1/1000th of the people who recieve spam for a product from a company in the US called this company, their marketing model would fall apart.

This would at least reduce spam for somewhat legitimate products. However, at best, we would only pull this off one time, and in a few months, all these companies would be right back at it.

What about alerts from mail providers?

[NewsWatcher]

I currently have a Hotmail account. One of the things that annoys me is that emails from Microsoft can't be blocked by the internal filter. They always seems to be writing to me, to alert me to the fact that if I pay I can get more features. This to my way of thinking is spam. Will this be blocked? If it is, what does it mean for emails that alert me to the fact that my inbox is nearing its limit? Will they be forced to start deleting my emails if I go over limit without warning because they will be banned for alerting me. I know, I know, I shouldn't even bother with Hotmail, but sometimes it is useful to have web-based email addresses, and this type of issue will surely affect all mail providers.

Re:This legalizes spam

[fermion]

And as much as we wish to make anything we find uncomfortable illigal, that is not the purpose of the government, or laws in general. I this case, unlike the post-9/11 laws that made the US look like another reactionary dictatorhship, the congress tried to define acceptable marketing using measurable enforcable terms.

The biggest problem with spam is the deception and confusion. This is also the biggest problem in all advertising, and something the US government tries hard to minimize. This bill speaks specifically two three issues on this. It requires that addresses be gathered overtly, and not harvested or guessed. It requires that the headers be true. It requires the content conform to current laws, and in particular requires adult content to be marked. This is similiar to existing laws. Such laws have been used to by the AG to punish direct mail and telemarketing firms.

It is unrealistic to assume that the Congress will ban commercial email. We would like something like confirmed opt-in and the like, but that may come later. Look at it this way. The drive to make telemarketers behave themselves has been going on for a very long time. As it has become clear that they do not and will not respect the wishes of the public, more aggresive laws have been passed to make them behave, until the most recent laws threaten to destroy the industry. This was the right and proper sequence of events. I think we can realiable expect the spammers to show the same disrespect and greed, and therefore can expect increasingly strict laws.

As far as the non-US mailer problems, that will can not really be solved by the congress.

Re:damn lame bill

[cyberformer]

It's actually even worse than that, because there is no centralized opt-out list. Every company or indicidual maintains its own do-not-spam list, so you have to opt-out of each one individually. Like it used to be with telemarketing before the do-not-call list.

But it's great for spammers: They don't have to worry about dealing with individual state laws, so can spam indiscriminately and know they're immune from prosecution and lawsuits. That is, if they're confined to the U.S. Companies with a presnece in Europe or a country that has an anti-spam law won't be able to get away with it.

Last-minute change: now effective January 1, 2004

[Animats]

There's been a last-minute change in the bill. [congress.gov] The version passed by the Senate and approved by the House was to take effect 120 days after enactment. A last-minute change makes the bill effective January 1, 2004. This prevents California's tough anti-spam law from being in effect for over three months.

S877

[Skapare]

"S877" goes into my blocking keyword list today