The anti-spam bill introduced last week is not as good for direct marketers as some thought at first blush.
For one thing, it seems to recognize the Internet Service Providers as private networks, not common carriers, giving them broad power to block e-mail.
In effect, the bill allows the ISPs to say, "E-mailers have no rights to deliver e-mail across our network," said Ben Isaacson, former executive director of AIM and head of Isaacson Consulting.
In addition, the proposed Federal Trade Commission report on enforcement is too narrowly focused on the U.S., Isaacson continued. "This is not a U.S. problem, it’s a global problem," he said.
The so-called CAN Spam bill was reintroduced on Thursday by Senators Conrad Burns (R-MT) and Sen. Ron Wyden (D-OR). Similar to a bill considered last year, it would require that consumers be given a chance to opt out of individual e-mail lists. The FTC would handle enforcement except in the case of banks and other financial institutions.
One piece of good news is that the bill as now written preempts all state laws regardless of whether they are tougher or not. And most observers, including Direct Marketing Association president H. Robert Wientzen, said they favor anti-spam legislation.
But Issacson sees problems in a draft of the bill dated April 7, including several that have been carried over from last year’s version. One is that the bill fails to include the word "bulk" when defining unsolicited commercial e-mail.
"Spam is bulk unsolicited e mail, but we need a bulk definition and the ISPs need to set a quota," he said. "Otherwise, you’re giving the ISPs power to stop a single e-mail."
Isaacson also has a problem with the implied consent definitions, which states that a message can be sent if the customer has conducted a transaction in the last three years.
Three years is just not enough time," he commented. "You don’t buy a car more than every three years."
Another issue is the clause requiring that the e-mail be identified as an advertisement.
"We’re thankful that it’s not in the subject line," Isaacson said. "Many states have that. But you still have to say clearly that this is an advertisement somewhere in the content. Any way you look at it, it’s labeling, and I think it’s unnecessary."
It is also unnecessary to require a postal address. "Most spammers use post offices boxes, " Isaacson noted. "It doesn’t make a difference where the spammer is.
In addition, Isaacson thought the sections on deceptive subject headings were unclear. "They do define it a bit, but don’t go deep enough," he said. "It may be a little vague to say that it’s about simply not relating to the content of the message" There’s a difference between teaser copy and fraudulent copy."
Moreover, there seems to be a contradiction between clauses with the unsubscribe clause. On the one hand, the bill says that an e-mail must contain a responsive address that can collect unsubscribes. On the other, the bill also allows mailers to also use Internet-based subscribe mechanisms."
Isaacson continued that the bill places "zero restrictions on adult content. When a Congressman gets called by an angry parent, it’s not about Viagra or the Nigerian stuff, it’s about e-mail," he said.
DMA spokesperson Louis Mastria cautioned that there will probably be many changes before the bill becomes law. The provisions would take effect 120 days after enactment.
