Bill that targets spam rising

Dilemma: As the measure advances, Congress debates the rights to privacy and free speech and how they pertain to this e-mail dispute.

July 24, 2000|By Carolyn Lochhead | Carolyn Lochhead,SAN FRANCISCO CHRONICLE

WASHINGTON -- Hoping to shrink the rising heaps of unwanted clutter in everyone's electronic in-boxes, the House has overwhelmingly approved legislation to crack down on unsolicited commercial e-mail known as spam.

The measure, which passed 427-1 last week, would help halt repeated electronic solicitations from advertisers, permitting consumers and Internet service providers (ISPs) to sue advertisers for as much as $500 per unwanted e-mail, up to $50,000.

Courts could triple that amount in certain cases and award attorneys' fees.

"The most annoying thing about the Internet is junk e-mail," said Rep. Heather Wilson, the New Mexico Republican who sponsored the bill. The Constitution, she said, "guarantees a right to commercial free speech, but there is no right to force us to listen to it."

The single "no" vote was cast by Ron Paul, a Texas Republican with strong libertarian leanings. A similar bill is under consideration in the Senate, but has not moved out of committee despite broad bipartisan support.

The popular spam crackdown is part of a continuing drive in Congress to write rules for the Internet -- an effort that spans attempts to ban Internet gambling to such hugely complicated and controversial issues as digital copyrights and access to high-speed "broadband" communication networks.

But even on an issue as seemingly simple as banning spam, lawmakers found themselves trying to sidestep a thicket of basic conflicts -- in this case between privacy and free speech -- that have complicated Washington's efforts to update the nation's legal infrastructure for the Information Age.

While the spam crackdown passed nearly without dissent, the measure took more than a year to draft after earlier versions brought complaints from free-speech advocates.

Rather than ban spam outright, lawmakers were careful to draw a narrow bill that essentially allows consumers to simply opt out of further solicitations.

"Somewhat to my surprise, given all the not-very-good laws I've seen, this one seems pretty solid," said Eugene Volokh, a law professor at the University of California at Los Angeles who specializes in cyberspace issues and free speech.

"It's suitably narrow. It merely requires that the sender provide an opt out," he said.

The bill requires advertisers to include a valid return address in all commercial e-mails and prohibits further transmission after a recipient objects.

Senders must label all advertisements "in a manner that is clear and conspicuous" and clearly provide a method for recipients to refuse any further solicitations.

Wilson cited estimates that more than a third of unsolicited commercial e-mails are for pornography. And at congressional hearings, Federal Trade Commission official Eileen Harrington testified that spam is rife with false information and extravagant claims, calling spam the "fraud artists' calling card on the Internet."

The bill could prove a boon to ISPs, who said that spam campaigns can overwhelm their systems and slow service, costing them $1 billion a year.

The measure would permit ISPs to prohibit anyone from using their systems to send unsolicited commercial e-mails. America Online, the nation's largest ISP, estimates that up to 30 percent of its traffic coming from outside its system consists of spam.

Wilson cited a small ISP in her state of New Mexico, Albuquerque-based Associated Information Services, which complained of being inundated with 400,000 to 2 million junk e-mails a day, clogging traffic and in some cases causing system crashes.

If an ISP is working with spammers -- say by collecting a fee from advertisers who send spam -- the measure would require the provider to give its subscribers the option of not receiving such e-mail.

Like other legislation that shields ISPs from litigation over activity that takes place on their systems, the bill would protect ISPs from spam lawsuits involving their networks.

The bill stopped short of a ban to avoid trampling on commercial free-speech rights and to protect consumers who do want to receive unsolicited commercial e-mail.

The measure would pre-empt 16 state anti-spam laws, including California's, which has been challenged in court as a violation of the Constitution's protection of the free flow of interstate commerce.

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