Anti-spam law could worsen the problem

January 01, 2004|By MIKE HIMOWITZ

Happy New Year! Is your inbox any cleaner yet?

Theoretically, it should be. The federal Can-Spam Act officially took effect when the clock ticked off the last second of 2003, which means those creeps who have been sending us pitches for mail-order Viagra, body-part enhancers, diet supplements, cut-rate mortgages, intimate photos of bored Russian housewives and, of course, anti-spam programs, are supposed to clean up their act.

What are the odds that this will actually happen in 2004? About the same as the odds that NASA will find little green guys on Mars this year.

But 2003 showed that the government is at least paying lip service to millions of us who are tired of being bombarded with spam, telephone solicitations and other obnoxious artifacts of the digital age. The problem is that the government isn't willing to do enough - or can't do enough even when it is willing.

The Can-Spam Act is a fascinating illustration of this conundrum. First, despite its title, the bill doesn't outlaw spam - which I define as unsolicited commercial e-mail from people you don't do business with and probably wouldn't touch with a 30-foot mouse cord. In fact, the bill legalizes spam for the first time.

It does prohibit the sender from forging or hiding his Internet return address, and requires a legitimate physical return address, along with a Web link or some other mechanism to get your e-mail address off his mailing list. And he's supposed to honor that request. This is known as the "opt-out" system of controlling spam because it allows anyone to bombard you with as many messages as he wants until you beg him to quit.

The act also authorizes, but doesn't require, the Federal Trade Commission to set up a "Do-not-spam" list similar to the "Do-not-call" list the commission created this fall to protect Americans from most commercial telemarketing calls. So far, consumers have registered more than 56 million phone numbers - an amazing response and strong signal that we're fed up with invasions of privacy.

Unfortunately, Can-Spam won't be as effective as the laws restraining telemarketers, for a variety of reasons.

Worse yet, Can-Spam pre-empts most state anti-spam laws, which are often considerably stronger than the federal version.

This itself is an interesting, digital-age example of federalism in reverse. Over the past 200 years, Congress has typically enacted federal laws (such as the Lindbergh kidnapping law or the Voting Rights Act) to protect Americans against weak, inconsistent or hostile state laws. But as business interests have tightened their hold on Congress and a succession of presidents, many state legislatures and attorneys general have become more active and pro-consumer.

For example, it was a coalition of state attorneys general that kept antitrust lawsuits against Microsoft alive when the Bush administration rolled over and accepted a much-too-cozy settlement.

The latest round of criminal investigations on Wall Street was largely the work of New York's ambitious attorney general, Eliot Spitzer - and not the institutions, such as the New York Stock Exchange, or federal agencies, such as the Securities and Exchange Commission, that are supposed to guard the national interest.

On the spam front, a handful of states, including Virginia and New York, have taken aggressive action under their own laws.

As a result, business lobbyists have been increasingly willing to accept or even promote federal regulation. They know it's cheaper to buy access to a single administration and a handful of key congressmen than it is to influence 50 governors, state legislatures and attorneys general.

Thus it was that the Direct Marketing Association, which represents some of the country's largest mail-order companies, dropped its longtime opposition to anti-spam laws last year and joined the call for federal regulations on commercial e-mail.

It didn't hurt that its members' own e-mail (which consists only of the most valuable offers to recipients who are delighted to get them) was being drowned in a sea of pitches for over-the-counter oxycontin.

But more than a few cynics - myself included - believe the main reason the DMA moved - and Congress acted - was to eliminate more than 30 state anti-spam laws, and one in particular.

That one was in California, the country's largest market, where new legislation would have made it illegal to send most commercial e-mail to anyone without the recipient's explicit, advance permission. This is the "opt-in" approach, and it strikes fear in the heart of snake oil peddlers everywhere.

Now, however, those nasty state prosecutors will be rendered toothless. Spam enforcement will be up to the FTC, which has limited manpower and is likely to limit itself to the highest-profile cases.

By the way, I'm not advocating a national "opt-in" e-mail policy like California's now-overridden law. It raises tricky First Amendment issues, and it's likely to be unenforceable.

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