State Anti-Spam Laws to Get Canned
By Pamela M. Prah, Staff Writer
Congress is set to send 36 state anti-spam laws to the trash bin as lawmakers near final approval of a federal law that tries to curb junk e-mail that floods computer in-boxes. But some consumer and anti-spam groups argue that while many state laws were weak, the federal law doesn't go far enough.
Both the U.S. House and Senate approved the CAN SPAM Act (S 877), but the measure goes back to the House for final approval after the Thanksgiving recess. President Bush is expected to sign the bill.
The measure would supersede state laws aimed at controlling unsolicited commercial e-mail or spam, but allows state attorney generals to go after spammers if federal authorities do not and recover up to $2 million in damages.
Spammers also would face fines and jail time up to five years if caught hacking into someone else's computer to send bulk spam or sending deceptive "headers" that make it hard for people to know who sent the e-mail.
The AeA, formerly known as the American Electronics Association, which represents the high-tech industry, said the federal law brings order to a patchwork of state laws which are confusing for businesses to comply with and difficult for states to enforce. "This creates certainty in the states ... and makes the Internet a safe place to work and play," said Marc-Anthony Signorino, AeA's technology policy counsel.
But critics argue that California and Delaware residents are the big losers since those states had stronger anti-spam laws than the new federal law.
"We do think there is value to having one central, good federal law, rather than 50 different laws," said John Mozena, co-founder and vice president of the Coalition Against Unsolicited Commercial Email, a group made up of Internet users and computer system administrators who want junk e-mail banned. "But we shouldn't replace some good state laws with one bad federal law," he told Stateline.org.
California and Delaware have the strongest states laws because they had "opt-in" rules, meaning that marketers would first have to get users to sign up to receive unsolicited e-mails, said David E. Sorkin, who teaches a spam law course at the John Marshall Law School in Chicago and maintains a Spam Laws Web site.
The new federal law would allow people to "opt-out" to prevent them from getting future spam, but does not have an "opt-in" feature.
California's anti-spam law, slated to go into effect Jan. 1, 2004, was the impetus behind Congress acting now after failing to pass legislation for the past four years, Mozena of CAUCE said.
"Both Mozena and Chris Murray, legislative counsel of Consumers Union, publisher of Consumer Reports, said Congress should have used the California's "opt-in" law as a model for national legislation rather that pass legislation than nullifies it.
These consumer and anti-spam groups also are not sure the new federal law will mean less junk e-mail. The measure will have little impact on the "shady" fraudulent spammers that pitch get-rich schemes and pornography and may even encourage legitimate marketers "to hawk their products" online, Sorkin said. "Basically [the law] cleans up the `bad' fraudulent spam and opens the floodgates for the non-fraudulent spam" from companies that now will rely more on the Internet to market their products, Sorkin said.
Mozena said the new law fails the most basic test: "It doesn't tell anyone not to spam."
Sorkin also faulted the legislation for allowing, but not requiring, the Federal Trade Commission to implement a "Do Not Spam" list akin to FTC's "Do Not Call" list that millions of Americans have signed up to avoid telemarketing calls.
"It [the law] makes states much less important in the spam debate," Sorkin said, but that is not a bad thing. "I don't think the Internet ideally is the appropriate subject for state regulation. It's such an interstate medium that it makes more sense to look at the issue from the federal perspective."
Anti-spam was a hot issue in the statehouses in 2003. At least 33 states considered legislation aimed at controlling spam this year and 19 states enacted new measures, bringing the total to 36, according to the National Conference of State Legislatures' spam page.