Congress gets tough on spam - except when it's from them

Recent House vote allows for unsolicited bulk e-mail

December 28, 2003|By NEW YORK TIMES NEWS SERVICE

WASHINGTON - Even as Congress was unanimously approving a law aimed at reducing the flow of junk e-mail, members were sending out hundreds of thousands of unsolicited messages to constituents.

The spasm of activity is aimed at attracting voluntary subscribers to the lawmakers' e-mail lists, which would not be subject to House rules that normally impose a 90-day blackout before an election for taxpayer-supported congressional mass communications.

In September, the House Administration Committee voted 5-3 along party lines to allow e-mail messages to the subscribers to be sent in the blackout period, but maintained the ban on free postal mail from House members to voters. The policy change affected only House rules and was not part of the junk e-mail legislation.

At least 40 House members have bought or agreed to buy e-mail address lists from at least four vendors. The lists, which each have tens of thousands of addresses, are generally created by a process called e-mail appending, taking voter registration files from a member's district. The next step is to cross match them with large databases of names and e-mail addresses assembled by consumer data companies like Equifax, which has a database of more than 75 million e-mail addresses. E-mail addresses can usually be found for 10 percent to 20 percent of the voter file.

Many members of Congress praise the new policy for allowing cheaper and more effective communications with constituents. But consumer advocacy groups say the policy may unfairly give an advantage to incumbents over challengers because it allows elected officials to use government resources to communicate with voters right up to Election Day.

In addition, the consumer advocates say, sending bulk e-mail messages to constituents who have not agreed to receive it is essentially electronic junk mail, or spam.

The ability to communicate with constituents at taxpayer expense, the franking privilege, is one of the most cherished and controversial perks of office. For 30 years, advocacy groups have lobbied and sued Congress to try to close loopholes and stop abuses of the privilege.

Critics say the policy has created a significant new loophole.

"The core value is that you don't want to leverage technology to increase incumbent advantage," said Celia Viggo Wexler, research director at Common Cause, a group that has sued to limit franking. "What is troubling is that essentially the House is saying, `OK, you can communicate with the constituency up to an election, and we're not really going to check what you are saying with them.' The point is without that kind of oversight, it's ripe for abuse."

Before the change, e-mail was subject to the same treatment as regular postal mail. Correspondence sent to more than 500 constituents had to obtain approval from the franking commission and was subject to a 90-day blackout before an election. But individual responses were not subject to the restrictions.

Congressional officials said the old policy was too cumbersome.

"Anything over 500 e-mails you had to submit that to the franking commission," said Brian Walsh, the Republican spokesman for the House Administration Committee. "There was going to be a delay of a couple of days to get approved. We didn't feel that was consistent with the technology that existed."

The new policy says that lawmakers can freely send messages to voters who have agreed to subscribe to their e-mail lists. To build such lists, House members are sending huge amounts of unsolicited bulk e-mail messages to their districts in the hope that some voters will respond and subscribe.

The unsolicited messages go out from congressional offices as often as twice a month. The unsolicited messages, which have to stop 90 days before an election or a primary, are still subject to approval from the franking commission.

"They are regulating commercial spam, and at the same time they are using the franking privilege to send unsolicited bulk communications which aren't commercial," David Sorkin, a professor at the John Marshall Law School in Chicago, said. "When we are talking about constituents who haven't opted in, it's spam."

President Bush signed the law on spam Dec. 16, and it takes effect Thursday. It will ban the sending of bulk commercial e-mail using false information like fake names, as well as misleading subject lines and automated harvesting of e-mail messages. It will also require all commercial e-mail messages to include a valid postal address and give recipients an opportunity to opt out of receiving more messages.

The law restricts only commercial e-mail, a sector that accounts for more than half of all e-mail traffic. The law does not apply to unsolicited political messages. It also authorizes the Federal Trade Commission to study the possibility of a "do not spam" list.

Violators of the law will be liable for a fine up to $250 a violation, up to a limit of $2 million.

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