WASHINGTON -- The Direct Marketing Association admits that spam is a problem. But the group's members don't want Congress to regulate it.
A lobbyist for the 4,700-member trade association said Wednesday that laws restricting companies from firing off unsolicited e-mail messages may have unintended consequences that politicians simply can't anticipate.
Jerry Cerasale, the DMA's vice president of government affairs, predicted that current anti-spam proposals would send the wrong message to countries outside the United States.
"If the U.S. creates a regulation that says you can't send out information because it's information that I may not necessarily want to receive," Cerasale said at a debate organized by the Cato Institute, "that's a green light to the rest of the world that you can do that not just on commercial stuff, but on anything. That's something we have to be careful about."
About the only thing those who have researched spam can agree on is that the stuff is multiplying faster than a G4 processor: Ads touting dubious make-money-fast techniques and cheap toner cartridges are clogging inboxes and vexing network administrators more than ever before. It's so bad that even Nigeria, home of the infamous ex-government-official spam scam, has created a website to report abuse.
The emphatic curses of unwilling spammees have prompted some legislators to introduce anti-spam bills -- though Congress' attention has been elsewhere after Sept. 11 and few hearings have been held this session. While no federal law regulates spam, some states including California, Colorado and Pennsylvania have slapped labels on unsolicited bulk e-mail that is commercial or adult in nature.
Not everyone wants to ban spam, its proponents protest, saying spam is a valid method of advertising. The DMA takes a middle ground: Instead of banning spam, individuals should be given the opportunity to notify a sender that they want to opt-out from the mailing list.
"You've got to give the opportunity to say, 'I don't want to get this e-mail anymore and you have to honor it,'" Cerasale said.
In an attempt to demonstrate that self-regulation can work, the DMA offers an E-mail Preference Service that asks you to type in your e-mail address. Then, the idea is, DMA members will no longer spam you -- though they're still permitted to do so to if you submitted your "work address."
Another participant in Wednesday's debate endorsed some anti-spam laws.
Chris Hoofnagle, an attorney at the Electronic Privacy Information Center, acknowledged that some First Amendment problems exist when restricting what people can say in e-mail messages. The First Amendment says Congress "shall make no law" abridging freedom of speech.
"We oppose aspects of spam legislation that would be overly broad and possibly restrict the ability of individuals to communicate political speech anonymously," Hoofnagle said.
But he applauded other types of anti-spam laws.
In the past, EPIC has joined free-speech groups like the American Civil Liberties Union and the Electronic Frontier Foundation in opposing a law restricting commercial Internet sex sites. But when it comes to commercial advertisements, EPIC foresees no First Amendment problems if the government compels bulk mailers to add labels.
Hoofnagle said his organization "favors the inclusion of an ADV: tag in the Subject: line of a spam e-mail. We believe it satisfies the public interest of labeling spam as commercial. And it only places a minimal burden on spammers."
Both EFF and the ACLU have criticized laws requiring "ADV:" labels as a bad idea, and perhaps unconstitutional. An ACLU spokesman says the group is "opposed to any kind of mandatory labeling scheme, including for commercial speech."
The Direct Marketing Association's Cerasale sounded like a renegade civil libertarian: "Going to the First Amendment issue, the unsolicited commercial e-mail issue has been applied to non-profits trying to get funds. Courts have ruled that's protected as speech.... We look at ADV: as labeling speech and we oppose that."
Howard Beales, director of the FTC's Bureau of Consumer Protection, said his colleagues were working diligently to prosecute deceptive and fraudulent spammers. In fact, the FTC has probably compiled the world's largest collection of junk e-mail.
"The commission has had in place for years a spam database," Beales said. "You can send us spam by forwarding it to uce@ftc.gov. Last year we got just under four million pieces of spam. This year we have two million plus already."
He said the FTC uses the spam "flow" to look for cases to prosecute where the spam is deceptive and the messages "have no value to anybody" -- or where spammers don't follow pledges to remove spammees from mailing lists.
Among the proposals that Congress is considering:
- The House Judiciary committee held hearings last May on the Anti-Spamming Act of 2001 (H.R.1017)(PDF), which requires spammers to send accurate identifiers, such as Internet domain, header information, date or time stamp and originating e-mail address.
- The CAN SPAM Act of 2001 (S.630) (PDF), which prohibits deceptive headers, return addresses and subject headings in spam. It is stuck in the Senate Commerce committee.
- The Wireless Telephone Spam Protection Act (H.R.113) (PDF), which would ban using the messaging features of wireless telephone systems to transmit unsolicited commercial messages.
The Federal Election Commission met Wednesday to puzzle out how to regulate websites and hyperlinks that endorse politicians seeking federal office.
