Congressmen introduce two new bills in fight against junk e-mail

Monday, July 13, 1998

The push for a legislative solution to the problem of junk e-mail intensified recently in Congress with the introduction of two bills containing anti-spam provisions.


There are now seven pieces of legislation before Congress that seek to control unsolicited commercial e-mail, which has been referred to by spam foes as the scourge of the Internet.


These two latest legislative forays are H.R. 4124, known as the E-Mail User Protection Act of 1998 and H.R. 4176, the Digital Jamming Act of 1998.


Introduced by Rep. Merrill Cook, R-Utah, the E-Mail User Protection Act, contains a series of restrictions that would prohibit spammers from sending unsolicited commercial e-mail messages “from an unregistered or fictitious Internet domain, or an unregistered or fictitious electronic mail address.”


The bill would also prohibit spammers from sending junk e-mail to the subscriber of an Internet service provider in violation “of the rules of the interactive computer service with respect to unsolicited commercial e-mail.”


Interactive computer services could directly file lawsuits and recover $10,000 for each violation. If the defendant's actions were considered by a court to be “particularly egregious,” the court could award up to $100,000 for each violation.


However, under the bill, lawsuits on behalf of individuals would have to be filed by a state attorney general. The defendant could be held liable for $500 per violation though a court could also increase the award by a factor of 10 if the conduct is “particularly egregious.”


Ray Everett-Church, co-founder of the Coalition for Unsolicited Commercial E-Mail, said the legislation is “very promising” and “well-reasoned.” However, he said: “The most troubling aspect of this legislation is that it provides for no private right of action by individuals.”


Connie Humphrey, legislative director for Cook, said: “The impetus for this bill came from a group of constituents in Salt Lake [City] who kept receiving commercial e-mails of a pornographic nature. These citizens complained that their kids were receiving these messages.


“Our measure does not have the First Amendment problems that some of the other spam legislation does,” she said. “At least one of the other measures basically bans unsolicited e-mail outright. Our basic premise for this measure was that people should have the right to say whether they want to receive unsolicited commercial e-mail or not.”


The E-Mail User Protection Act was referred to the House Subcommittee on Telecommunications, Trade and Consumer Protection on July 2, but Humphrey said no timetable has been set on when the panel will review the legislation.


Introduced by Rep. Edward Markey , D-Mass., the Digital Jamming Act would prohibit spammers from forging e-mail headings and using fake return addresses. The law would also prohibit spammers from initiating “an unsolicited commercial e-mail message to any recipient who has previously indicated a desire not to receive such messages.”


Furthermore, the proposal would provide that no subscriber to an electronic mail service shall send e-mail in violation of the service provider's “published policy prohibiting or restricting the use of its service or equipment for the initiation of an unsolicited commercial electronic mail message.”


Everett-Church said that “while well intentioned the Markey bill seems to miss the mark on many scores. We hope to work with Representative Markey to make changes to the bill which would make it more responsive to the concerns of Internet users.”


One of the main criticisms CAUCE has with the Digital Jamming Act is its implementation of an opt-out scheme. To Everett-Church and other members of CAUCE such provisions “are a wrong-headed approach because they will allow every marketer 'one free bite' at every e-mail recipient and will do more harm than good by giving unsolicited commercial e-mail the air of legality and legitimacy.”


At least one constitutional scholar questions whether the current effort to pass anti-spam legislation infringes on free-speech rights. Robert Peck, director of Legal Affairs at the Association of Trial Lawyers and a law teacher, wrote in an article for The First Amendment and the Media 1998: “It is critical, however, for any governmental action to take into account that there is no proper governmental interest in helping people fend off callers at their cyberspace door. … While unwanted guests, callers and e-mailers may be annoying and disconcerting, the types of broad prohibitions or identification requirements proposed by Congress go substantially beyond what a free society has a right to expect.”


The bill has been referred to the House Commerce Committee.