Greetings From the USA: You’ve Been Spammed

WASHINGTON — The governments and regulatory bodies of Europe, Australia, Korea and Japan have adopted tough laws to deal with spam, including opt-in requirements, subject line labeling, accurate return addresses and a range of criminal penalties for mass mailing violations.

Unfortunately for those countries, the majority of spam comes from the United States, which has no national anti-spam laws.

“We are learning what American culture is all about through spam,” Dr. Hyu-Bong Chung of the Korean Information Security Agency told conferees Friday morning at the Federal Trade Commission’s (FTC) Spam Forum.

Added Tom Dale, general manager for the Australian National Office for the Information Economy, “We’ve learned far more about American culture (through spam) than we want to know.”

The three-day FTC national workshop that has covered a wide of range of issues involving spam, concludes Friday afternoon. Friday morning’s session was devoted to potential solutions through legislation and the overwhelming majority of the panelists supported a call for federal action. What type of federal legislation, however, was a different question.

“Absolutely, we need a federal law,” said David H. Kramer of Wilson, Sonsini, Goodrich and Rosati, a Silicon Valley-based law firm. “Right now we have a classic case where no one has enough of a vested interest. However, without a private right of action, federal law will not be effective.”

Charles Curran, assistant general counsel for America Online, said a federal law was an “absolute necessity,” while Ray Everett-Church, an attorney for the Coalition Against Unsolicited Commercial Email, was of the opinion that it “was time for federal legislation.”

Even the two direct marketing representatives on the panel — Jerry Cerasale, SVP for the Direct Marketing Association and Steve Richter, general counsel for the Email Marketing Association — agreed spam could not be stopped or limited without federal action.
Global Internet Project, disagreed with the panelists, saying new laws have “zero probability of working” since spammers will simply move offshore and ignore U.S. legislation. Patrick favors technological solutions to the problem.

“We’re really kidding ourselves right now,” Patrick said. “There are a lot of ways to solve this without legislation.”

When asked specific legislation, the panelists were in equal agreement that all currently proposed federal legislation is flawed. Receiving most attention, and abuse, was the CAN SPAM (Controlling the Assault of Non-Solicited Pornography and Marketing Act) bill introduced by Senators Conrad Burns (R.-Mont.) and Ron Wyden (D.Ore.), which calls for unsolicited e-mail marketing messages to have a valid return address.

The legislation would also mandate e-mail marketers be required to remove customers from their mailing lists if requested. The bill gives more legal ammunition for ISPs to take spammers to court, allows the FTC to impose fines, and gives state attorneys general the power to bring lawsuits.

“Burns-Wyden is not (effective legislation),” said Paula Selis, senior counsel for the Washington State Attorney General’s office. “We see this as a step backward. There are loopholes and exceptions that are a setup for extensive litigation.”

“The bill would be large step in the wrong direction,” said David E. Sorkin, an associate professor of law at the John Marshall Law School. “The real principle should be do no harm. You’re still going to get spam. It’s badly misguided.”

Everett-Church added that Burns-Wyden would actually “legitimize their (spammers) activities” since it has no opt-in requirements.

Silicon Valley Rep. Zoe Lofgren’s (D.Calif.) proposal to offer bounties to people who out spammers drew even less support from the panelists than Burns-Wyden.

“It’s solving a problem that doesn’t need solving,” Kramer said, adding that the issue of finding spammers is a red herring.

“Anybody can track down spammers,” added Everett-Church. “The problem is getting law enforcement to act.”

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