Making the U.S. safe for spam

By a vote of 97-0, the Senate passed a bill to stop junk e-mail. Too bad it won't do anything of the sort.

By Matthew Honan

Nov 4, 2003 | I am quite content with the size of my penis. I don't want Vicodin through the mail. I have no plans to refinance my mortgage. Hell, I don't even have a mortgage. I don't care to see Sexy Farm Babes Getting It On. I don't care who was deposed in which African nation or how much they have squirreled away in a Bahamian bank; I'm not sending out my account information. No way. I don't need anti-fungal ointment. My teeth are white enough, thank you. I don't want to meet you tonight, I did not block your IM, and I don't even know what herbal Viagra is. Please. Can't I just be left alone?

Spam is more than a mere annoyance. Forrester Research estimates that spam costs U.S. businesses $10 billion a year. Brightmail, a San Francisco anti-spam technology company, found that as of July, 50 percent of all e-mail traffic on the Internet is made up of spam. Worms and viruses such as SoBig and more recently Mimail use spam technology to spread at alarming rates, and they threaten to cripple the whole of the Internet. Something needs to be done. Unfortunately, something was.

The Burns-Wyden anti-spam bill, or the so-called Can Spam Act, blew through the U.S. Senate two weeks ago and was heralded on front pages across the country as an anti-spam victory. "Senate Votes 97-0 to Restrict E-Mail Ads," the Washington Post announced. "Senate Votes to Crack Down on Some Spam," reported the New York Times. "Senate OKs Do-Not-Spam Plan," bellowed the Mercury News in giant type across the top of the page.

The House, which had been squabbling over competing anti-spam bills all year, is now under intense pressure to follow suit, and many observers expect Speaker Dennis Hastert to introduce the Can Spam Act directly on the floor this week, bypassing committee infighting and forcing a vote. There's just one problem: The Can Spam Act is going to make the scourge of spam worse and will effectively legitimize the practice of sending unsolicited bulk e-mail.

By eliminating a consumer's right to sue, overriding state legislation, and providing for truthful-yet-unwanted e-mail from so-called legitimate spammers, the Can Spam Act will create a flood of unsolicited commercial e-mail, all of it legal.

Can spam? More like spam can.

The Can Spam Act is a well-intentioned piece of legislation. Ninety-seven U.S. senators aren't out to flood your in box with Vicodin ads. It grew out of several decent pieces of legislation, cobbled together at the last minute to make a very bad one.

"We had some high hopes, but when we saw the actual legislation that came out of the Senate, we began to get concerned," says John Mozena, vice president and co-founder of the anti-spam Coalition Against Unsolicited Commercial Email, or CAUCE. "We were strongly supporting Senator Schumer's bill that would create the do-not-spam list at the FTC. That bill and the Burns-Wyden Can Spam Act, and also Senators Hatch and Leahy's bills, all got rolled together on the Senate floor.

"Our fundamental issue is that it fails the basic litmus test: It does not tell you not to spam. It says if you are sending unsolicited e-mail, here are the rules. Our concern is that any bill that tries to get rid of the current crop of spammers doesn't leave the door open for legitimate businesses."

And that's exactly what the Can Spam Act does: It makes it OK for businesses to spam you, as long as they play by the rules Congress set up. The Can Spam Act is an opt-out piece of legislation. It makes it OK to spam, as long as there's a way for consumers to opt out of future mailings. In other words, it's OK to spam everybody once. Consumer advocates are almost universally against an opt-out program. David Kramer, a spam-fighting attorney with Wilson Sonsini Goodrich & Rosati who has won landmark, precedent-setting cases against spammers, is practically apoplectic on the issue.

"If you want a law that ensures spam will be around for the next decade, than you should support the Can Spam Act," says Kramer. "The American people deserve better than this poor excuse, spawned by the marketing industry."

Next Page: The only effective means of stopping spam is by giving consumers a right to sue

• View blog reactions