CAUCE

FTC sort of says that CAN SPAM sort of works

The CAN SPAM act required that the Federal Trade Commission report back after a year, which they did, releasing the report almost as an afterthought with a press release about some international anti-spam enforcement at http://www.ftc.gov/opa/2005/12/buttonpushers.htm.

The goals of the CAN SPAM act were to make life better for large bulk mailers, and to make it somewhat easier to go after the crooks. (Note that stopping UBE or UCE isn't in that list.) It did both of those reasonably well, as the FTC documents. They then go on to say that one thing it didn't do was to give them the authority to work closely with other governments to deal with spammers active in multiple countries, and they suggest some legislation to do so.

We think it's fine to give the FTC better international enforcement powers, but it's no substitute for an actual anti-spam law. One of the CAUCE board members has further thoughts in his blog at http://weblog.johnlevine.com/Email/ftcreport.html.

CAUCE Joins the London Action Plan and the Anti-Spyware Coalition

CAUCE Canada, CAUCE U.S., and Asia-Pacific CAUCE (APCAUCE) have joined the London Action Plan (LAP). The LAP is a project started by government consumer protection agencies like the US Federal Trade Commission, the UK Office of Fair Trading, and the our governmental contingent includes both Industry Canada and the Competition Bureau. Many European and Asian governments participate as well. CAUCE looks forward to working with the various governments to help enforce the anti-spam laws that exist, to better understand how the laws do and don't work, and to learn how better laws might be written. CAUCE Chair Neil Schwartzman attended the meetings in London in October, 2005.

We've also joined the Anti-Spyware Coalition, a group of makers of anti-spyware software and public interest groups. The ASC is hoping to build consensus about definitions and best practices in the area of spyware and other unwanted technologies. The group is made up of representatives from the Center for Democracy & Technology, the Canadian Internet Policy and Public Interest Clinic, AOL, Microsoft, McAfee, Symantec and many others. While spyware isn't CAUCE's direct area of concern, the legal remedies overlap with those against spam, and the bits of the government that address spyware are the same ones that address spam. The ASC has had several private meetings to work on policy; Neil Schwartzman and John Levine attended the meetings held in Chicago and Berkeley, California in recent months. The ASC will be holding public events on February 9, 2006 in Washington D.C. and on May 16, 2006 in Ottawa.

New California Antispam Law

In late September, California enacted a new SB 97, a new version of the 2003 spam law that was overridden by CAN SPAM before it went into effect.

Both spam bills and the phishing bills were introducted by Sen. Kevin Murray, one of a handful of state legislators with an interest in online commerce. The new law basically reconstitutes what it can of the old law that isn't preempted. CAN SPAM says states can make fraudulent e-mail more illegal, so that's what it does.

If a commercial e-mail advertisement uses a third party domain name without permission, or has forged header information, or a misleading subject line, it's illegal in California. More interestingly, any of the recipient, the recipient ISP, or the Attorney General can sue for $1000 per message, up to a million dollars per incident.

Oklahoma man wins $10 million judgement against a spammer

On Thursday the 22nd, Robert Braver, an Oklahoma ISP owner who is a long time activist against both spam and junk faxes received a default judgement of over $10 million against high profile spammer Robert Soloway and his company Newport Internet Marketing. Soloway has frequently been cited as one of the ten largest spammers in the world.

Braver originally filed his case in state court, but Soloway moved the case to Federal court earlier this year. Soloway was initially represented by attorneys, but the attorneys withdrew from the case and since then, although Solway said he'd be representing himself, he hasn't responded in the case, although he has been actively sending comments about it to usenet and mailing lists.

CAUCE offers advice on Katrina relief donations

Did you get e-mail asking you to contribute to Katrina relief? Unfortunately, many such requests are fraudulent.

After every natural disaster in recent years, spammers have always sent fake appeals, preying on the good intentions of generous Americans. It happened after the tsunami, and it was sadly predictable that it would happen now.

FEMA, the Federal Emergency Management Agency has a web page listing reputable organizations accepting donations. We encourage you to check their list before donating to a charity that you're not already familiar with.

CAN SPAM at least doesn't prevent mail filtering

White Buffalo Ventures is a Texas company that sets up online dating sites. In early 2003, they had the clever idea to make a public information request to the University of Texas for all of their e-mail addresses, which the univerisity duly answered, and then to start spamming all those addresses. The university asked White Buffalo to stop, which they didn't, then started filtering them. White Buffalo sued, on the theory that the filtering was illegal under the First Amendment, since UT is part of the state government, as well as under the CAN SPAM act.

After percolating through the courts, the Fifth Circuit published its decision that UT can indeed filter out the spam. UT acts as an ISP for its students, and CAN SPAM specifically says ISPs are allowed to implement whatever spam filters they want. The court further decided that in view of the Central Hudson case, the most important Supreme Court decision about the first amendment and commercial speech, that UT's filtering doesn't violate the First Amendment.

FTC issues report on spam tagging

In June 17, the Federal Trade Commission issued a press release and formal report related to the CAN SPAM act.

The act required that they look at spam tagging with ADV: or a similar subject line tag. They conclude that tagging would not be effective, mostly because spammers who are breaking the law anyway are unlikely to add tags merely because another law says they have to.

They also looked at 20 state laws and national laws in Europe, Korea, and Japan that mandate tags, none of which have been at all effective. The report is well written and is worth a read by anyone interested in the way that spam policy is made.

CAUCE Statement on CAN SPAM Act

The Coalition Against Unsolicited Commercial E-Mail (CAUCE) is disappointed by the enactment of a weak anti-spam law.

This legislation fails the most fundamental test of any anti-spam law, in that it neglects to actually tell any marketers not to spam. Instead, it gives each marketer in the United States one free shot at each consumer's e-mail inbox, and will force companies to continue to deploy costly and disruptive anti-spam technologies to block advertising messages from reaching their employees on company time and using company resources.

It also fails to learn from the experiences of the states and other countries that have tried "opt-out" legal frameworks, where marketers must be asked to stop, to no avail. In fact, the law will preempt an opt-in law set to go into effect in California on January 1, 2004, which was passed after an state opt-out law similar to the new federal law was found to be a failure.

In addition, the law's weak provisions are further crippled by limiting enforcement to overworked regulatory and law enforcement agencies, rather than giving consumers legal tools with which to protect their own inboxes.

CAUCE is also disappointed that both the House and Senate versions of this law were passed without any public hearings, instead being written and passed solely through back-room compromises and with the input of the marketing industry and Internet Service Provider lobbies, but with scant regard for the interests of America's consumers and business Internet users.

"This law does not stop a single spam from being sent. It only makes that spam slightly more truthful. It also gives a federal stamp of approval for every legitimate marketer in the U.S. to start using unsolicited e-mail as a marketing tool. Congress has listened to the marketers and not to consumers, and we have no faith that this law will significantly reduce the amount of spam that American Internet users recieve." — Scott Hazen Mueller, CAUCE Chairman

Joint Open Letter on Spam Legislation

Senator Orrin G. Hatch, Chairman
Senator Patrick J. Leahy, Ranking Member
Senate Judiciary Committee

Senator John McCain, Chairman
Senator Fritz Hollings, Ranking Member
Senate Commerce, Science & Transportation Committee

Rep. F. James Sensenbrenner, Chairman
Rep. John Conyers, Jr., Ranking Member
House Judiciary Committee

Rep. W.J. "Billy" Tauzin, Chairman
Rep. John D. Dingell, Ranking Member
House Energy & Commerce Committee

Dear Sirs:

We are writing you to express our concerns regarding several pieces of anti-spam legislation that have been introduced or are currently being prepared for introduction. As anti-spam and consumer advocacy organizations that have worked on the spam problem for several years, we have closely analyzed many of today's current anti-spam laws, in the United States and abroad, and we would like to offer our opinion on what we have become convinced are the only legislative measures that will make any meaningful difference in the lives of consumers. At present, none of the legislative proposals currently being considered in Congress contain the measures we recommend; rather, they repeat many of the legislative mistakes that have exacerbated the unsolicited commercial email problem, permitting it to grow to the epidemic proportions it has reached today.

First and most importantly, to have any meaningful effect on the growing volume of unsolicited email, any law should prohibit the sending of unsolicited bulk commercial email. Any law that defines acceptable criteria for sending unsolicited bulk commercial email will amount to little more than establishing the conditions for a federal license to spam. The vast majority of online marketing organizations have active and robust permission-based marketing programs that generate significant profits using "opt-in" business models. By establishing an "opt-out" legal regime, Congress would undercut those businesses who respect consumer preferences and give legal protection to those who do not.

An opt-in criterion, requiring the affirmative prior consent of the addressee, is essential to reduce the rising tide of spam, while an opt-out law gives safe harbor to ever-growing floods of unsolicited bulk commercial email. Opt-out places the burden on consumers to remove themselves from potentially tens of thousands of mailing lists that they never wanted to be on in the first place. Because most consumers do not wish to interact with the senders of unsolicited bulk commercial email, few consumers will have the time or inclination to comply with hundreds or thousands of different variations of opt-out procedures.

We also note that opt-out has proven disastrous in South Korea, where the legislature is now scrambling to enact opt-in legislation. Furthermore, opt-in is the law in the European Union and soon to be law in several other countries. Therefore any company operating on a global basis will not be placed under a unique or undue burden by treating American consumers in a consistent fashion. Ultimately, the opt-out approach supported by some direct marketers places their own business convenience over the best interests of American consumers. If Congress accepts their approach, it will condemn consumers to lives with more unsolicited email, not less.

Second, individuals who receive spam should have a private right of action allowing them to recover liquidated damages for violations of the law. It is important that Federal agencies, state Attorneys General and ISPs should also be able to sue spammers, but as it was made clear by Washington's Attorney General at the Federal Trade Commission's Spam Forum (April 30 - May 2, 2003), the only way you will see meaningful enforcement of anti-spam laws is to give the individual victim the right to sue. Federal agencies and state Attorneys General have made it quite clear that they do not have the resources needed to enforce new anti-spam laws. If it is the intent of Congress that any anti-spam law actually be enforced, Congress has two choices: appropriate massive amounts of new funding to all of the responsible law enforcement agencies, or empower consumers to bring their own actions.

The individual private right of action created against junk faxers in the Telephone Consumer Protection Act of 1991 (TCPA) has worked well to keep junk faxes at a tolerable level without any added expense to law enforcement, and without creating the much-hyped "flood of unwarranted litigation" that critics erroneously cite. The TCPA does this by creating an action at the lowest court in a state, typically a small claims court. If floods of litigation are feared, there are ways to create a private right of action for individuals that sharply limit that potential. But a failure to create an individual private right of action will ensure extremely limited enforcement, much as we see today with existing state laws.

Third, a federal law should not preempt stronger state law, particularly if the federal law fails to meet the two criteria above. As with all consumer protection, federal law should set a floor, not a ceiling, and should give victims the ability to bring their actions in any court that provides a competent and convenient forum. By preempting state laws with an ineffective federal law, and by giving federal courts sole jurisdiction to hear cases, Congress would strip away what little protection consumers already have under the handful of strong state anti-spam laws.

All the proposed bills we have seen fail on these three fundamental counts. At the Federal Trade Commission Spam Forum, a substantial majority of the expert participants very clearly articulated that to be effective, spam legislation needed to be opt-in and contain a private right of action.¹ (The only dissenting opinions came from spammers and the Direct Marketing Association.) Recent proposals not only ignore this consensus and side with the spammers, they include exemptions that seem to have been designed to make life easier for spammers.

For example, the draft bill being circulated among committee staff at Energy and Commerce and the Judiciary Committee makes an opt-out choice only effective for three years and would permit a company to send unsolicited email for any product in their portfolio, while forcing consumers to opt-out each time they receive an unwanted mailing. We ask you to envision how this process will play out in a real-world situation, wherein the estimated 23 million small businesses in America could send email to consumers, requiring an individual to opt-out every three years. By creating such a potential, it is a gross misnomer to label a bill containing such provisions as "anti-spam" legislation; the burdens shifted onto consumers by such a bill are more properly described as "anti-consumer" or "pro-spam."

In the last several years, many of the ideas embodied in the current "anti-spam" legislative proposals have been demonstrated to be ineffective and in some cases likely to exacerbate the spam problem. We urge you to not simply reintroduce discredited approaches, but to move past them and look to solutions that have a real chance of making a difference. In the coming days, we will be contacting your staffs with recommendations for addressing the specific concerns we have with the current proposals, and will suggest ways of getting to a simple and fair bill that gives individual consumers, businesses both small and large, educational institutions, charitable organizations, and government itself, the means to defend themselves.

Sincerely,

Jason Catlett, President, Junkbusters Corp.
Jean Ann Fox, Director of Consumer Protection, Consumer Federation of America
Beth Givens, Director, Privacy Rights Clearing House
Susan Grant, Vice President for Public Policy, National Consumers League
Ken McEldowney, Executive Director, Consumer Action
Scott Hazen Mueller, Chairman, Coalition Against Unsolicited Commercial Email
Gary Ruskin, Executive Director, Commercial Alert
The Officers and Board of Directors of the SpamCon Foundation

¹ There were many other lessons learned at the Federal Trade Commission Spam Forum that have not been reflected in any of the current proposals. For example, many participants provided evidence that opt-out "anti-spam" laws have resulted in greater and greater volumes of unsolicited email. Many panelists stated that even criminal penalties for certain deceptive spamming practices will not substantially reduce the volume of spam if unlimited quantities of non-deceptive spam are given safe harbor under law. Similarly, advances in spamming technology have made irrelevant provisions against "harvesting" of email addresses; many such email lists have already been compiled, and spammers are now moving on to "dictionary attacks" which dispense with lists altogether and simply use systematic guesswork.