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The United States Senate expects to pass before Thanksgiving the House anti-spam bill, which would lead to the creation of the first national law aimed at slowing the glut of unsolicited commercial e-mail. The White House indicated over the weekend President Bush will sign the bill and its effective date will be Jan. 1, 2004.
That date is important to e-mail marketers and publishers because the bill pre-empts 37 existing state anti-spam bills, including the recently passed California law that carries much tougher restrictions than the House bill. The California law goes so far as to effectively ban ad-supported e-mail newsletters.
The House passed the bill in the early pre-dawn hours of Saturday after House and Senate negotiators agreed on a compromise between competing House versions and the Can Spam Act passed last month by the Senate. Because of the negotiated nature of the bill, it is expected to win easy passage in the Senate sometime this week.
"The Departments of Justice and Commerce are pleased that Congress is poised to pass long-awaited anti-spam legislation. The bill proposed for final passage will be a useful step in helping consumers and businesses to combat unsolicited commercial e-mail," the Justice and Commerce Departments said in a joint statement. "The Administration believes that problems with spam cannot be solved by federal legislation alone; the development and adoption of new technologies will also be necessary."
The bill mandates commercial e-mailers provide consumers with an opt-out mechanism, calls for a national Do-Not-Spam list and contains provisions to limit wireless unsolicited commercial e-mail.
The legislation also includes criminal and civil penalties for spammers who send fraudulent e-mail using such standard spam tactics as false headers and misleading subject lines. The bill calls for statutory damages of $2 million for violations, tripled to $6 million for intentional violations and unlimited damages for fraud and abuse. Individuals are barred from suing spammers, a right reserved for Internet service providers and federal, state and local law enforcement agencies.
In the most extreme cases, the bill calls for a maximum five-year prison sentence.
Lawmakers defined "unsolicited commercial e-mail" as an "electronic message...the primary purpose of which is the commercial advertisement or promotion of a commercial product or service." The bill allows for unsolicited e-mail that is "transactional" in nature and further exempts e-mail from charitable or political organizations.
"With this legislation, the spammers who deluge computer users with billions of unwanted e-mails will face significant penalties for their illegal actions," Microsoft Chairman and Chief Software Architect Bill Gates said in praising the bill. "Microsoft particularly supports the strong enforcement provisions, and the ban on falsifying the origin of e-mail solicitations and illegally obtaining lists of e-mail addresses, both of which will help Internet service providers prosecute spammers."
The Institute for Spam and Internet Public Policy (ISIPP), a California think tank, was also pleased with the legislation.
"We all knew that a federal law was inevitable, next session if not this," said ISIPP President Anne P. Mitchell. "That this bill was able to get through both the Senate and the House in the time frame which it did evidences a high level of bi-partisan cooperation and a keen focus on the issues and concerns of an Internet industry and population mired in spam."
Mitchell added, "And of course it didn't hurt that the recently passed California anti-spam law was nipping at their heels."
The Coalition Against Unsolicited Commercial E-Mail (Cauce), which had pushed for an opt-in system, said it was disappointed with the final version of the bill.
"This legislation fails the most fundamental test of any anti-spam law, in that it neglects to actually tell any marketers not to spam," a CAUCE statement said Saturday. "Instead, it gives each marketer in the United States one free shot at each consumer's e-mail inbox, and will force companies to continue to deploy costly and disruptive anti-spam technologies to block advertising messages from reaching their employees on company time and using company resources."