Congressman proposes bill to can spam

Friday, June 18, 1999

Another bill mandating penalties for senders of unsolicited commercial e-mail, or spam, has been introduced in the U.S. House of Representatives.

Rep. Gary G. Miller, R-Calif., introduced the “Can Spam Act” on June 10. The measure would give Internet service providers the power to enforce their posted policies against sending spam to their users and would also forbid unauthorized use of Internet domain names.

Under the proposal, ISPs would be empowered to sue those who violate their anti-spam policies. Each message found in violation would carry a $50 fine, with a maximum of $25,000 per day. Criminal penalties would be assessed for forging domain names.

Miller's act is the third anti-spam bill proposed in Congress this year. It follows the Inbox Privacy Act and the E-mail User Protection Act, neither of which has yet been passed.

The bill is based upon a 1998 California state law authored by Miller while he was a state assemblyman. That legislation also allowed e-mail providers to sue spammers and made the “spoofing” of domain names a crime.

In a news release, Miller explained that the bill would place the authority to control spam in the hands of the ISPs, not in the government's hands.

“This approach is appealing because it offers a market-based solution to spamming. It puts the power to control spam into the hands of the Internet service provider and Internet consumers,” Miller said.

“We can avoid the Pandora's box of government designing the rules and procedures for unsolicited commercial e-mail advertisements,” he said. “That's a road we need not go down.”

Miller's bill has garnered the support of the Coalition Against Unsolicited Commercial E-mail, an Internet-based organization that seeks a legislative solution to problems associated with spam.

In an interview with the First Amendment Center, John Mozena, CAUCE co-founder and vice president, said spam regulation was a personal-property issue, rather than a free-speech issue.

“People who own the computer have the right to say how it will be used,” he said. “It has to do with the private individual being given power to control his own property for use of advertising purposes. Free speech does not involve using someone's soapbox without their permission.”

However, some First Amendment advocates have raised the question of the bill's potential effects on commercial free-speech rights.

Richard Kaplar, editor of Commercial Speech Digest, a First Amendment newsletter, said that such a bill could set a precedent for future challenges to free speech.

“We must be mindful and remember that if we restrict speech just a little, it makes it easier to restrict speech just a little more,” he said.

He also noted that Miller's bill seemed to be different from past junk e-mail bills, with its shift of focus from the consumer to the service provider.

“It seems to be more mindful of First Amendment concerns than some other bills we have seen, but we have to remember that the Supreme Court has extended an extremely significant amount of protection to commercial speech and has specifically said that online speech is entitled to a very high degree of First Amendment protection.”

Gerald Cerasale, senior vice president of the Direct Marketing Association said that while his organization has not yet directly addressed Miller's bill, in the past the group had supported the consumer option of “opting out,” or requesting that further unsolicited e-mails not be sent.

“We look at consumer choice as something positive, but we just want to make sure we don't get a ban. That's where the First Amendment problem is,” Cerasale said. “The DMA wants to try to keep e-mail as a viable option for commercial marketing.”

However, Miller maintains that some degree of control must be imposed.

“It is time for the law to catch up with technology, especially in the case of spam where families and businesses are forced to receive large amounts of objectionable material over the Internet,” he said.

“This is an issue of consumer protection, privacy and private property,” he concluded in his release.

The bill has been referred to the House Committee on Commerce and the Committee on the Judiciary. No hearing dates have been set.