AGs Want to Can the Can Spam Bill

The Internet Committee of the National Association of Attorneys General say thanks, but no thanks, for the Can Spam Act, passed by the Senate in October. A letter sent to House leaders, including Billy Tauzin, head of the House Energy and Commerce Committee and Nancy Pelosi, the House minority leader, detailed their complaints.

AGs from California, Kansas, Maryland, Nevada, Texas, Vermont, Virginia and Washington signed the letter, which said that the amended act has so many loopholes, exceptions and standards of proof that it won’t protect consumers. They also said that the law wouldn’t deter spammers, but merely foster more litigation.

The attorneys general pointed out that the standards for knowledge of violation in the Can Spam Act are higher than for other consumer protection laws. For example, when suing accused spammers, attorneys would have to prove not only that the subject header of a message was deceptive, but that the sender was conscious that it was deceptive.

The definition of a commercial electronic mail message is also problematic, the letter said, because it says it must have the “primary purpose of promoting a commercial product or service,” leaving the door open for eternal quibbles about the primary purpose of an e-mail offering, say, to share hot co-ed pix.

The whole opt-out thing wasn’t working for the AGs, either. Allowing opt-out menus could be confusing for consumers, and letting spammers off the hook for receiving opt-outs if their mail server is temporarily disabled pretty much lets them off the hook for good, since spammers’ e-mail boxes are always full right after they spew a mailing.

The AGs closed the letter with objections to the Act’s pre-emption of state laws. Many states’ laws are tougher, and the committee wants the ability to go further than Federal law.

The Senate took months of wrangling to churn out its anti-spam legislation, which sought to balance consumers’ desire for surcease with marketers’ desires to increase commercial e-mail in the wake of the implementation of the National Do-Not-Call list. The voice of the attorneys general will be one more in the cacophony of competing interests the House will have to deal with to hammer out some kind of law.

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