A tougher version of the Can-Spam bill was passed by the Senate Commerce Committee Thursday. Stronger provisions added since the bill was introduced in April include a do-not-spam registry, higher statutory penalties and a clause making a company responsible if spam is used to market its products.
The Direct Marketing Association supported the previous version of Can-Spam, but has often spoken out against a national do-not-spam list.
“We have supported Burns-Wyden bill and are against a do-not-e-mail,” said Jim Conway, vice president of government relations at the DMA. “We want to examine the new changes to make sure it’s still in line with our policies.”
Sponsored by Sens. Conrad Burns (R-MT) and Ron Wyden (D-OR), the Can-Spam bill makes it illegal for anyone to use fraudulent or deceptive headers or subject lines in an e-mail.
Can-Spam will now be voted on by the full Senate, perhaps as early as this summer, said Jennifer O’Shea, a spokesperson in Burns office.
The bill, passed by unanimous vote, included an eleventh-hour provision calling for a national do-not-spam list, similar to the Federal Trade Commission’s do-not-call registry. This new language requires the FTC to “offer a recommendation to set up a do-not-e-mail list and give the FTC authority over such a list—or provide reasons that it would by impractical to do so,” O’Shea said.
The do-not-e-mail list would go into effect within six months of the Oct. 1 enactment of the FTC’s national do-not-call file.
This provision is thought by observers to be an accommodation to Sen. Charles Schumer (D-NY) who last week introduced his own bill that calls for a national do-not-spam list. Schumer publicized his legislation for weeks before finally introducing it—speaking before industry groups and putting out press releases regularly.
O’Shea said that the do-not-call provision “was an attempt to make the bill as strong as it can be.”
Another addition to Can-Spam is the so-called McCain amendment. This says that if a business employs someone to market its products who uses spam to do so, then the company would be accountable under the law.
Sen. John McCain (R-AZ) is the chairman of the Senate committee that passed the bill.
Penalties have been increased from $10 to $25 for “dictionary attacks,” the establishment of numerous e-mail accounts to make spam more difficult to track and block and the hijacking of other computers to send spam. The original bill called for damages of $10 per spam e-mail.
The penalty cap has been raised under the revised bill from $500,000 to $1 million.
Marketers are allowed to send an unsolicited e-mail message, according to the legislation, but must provide an obvious way for recipients to opt out. An opt-out method would not be required on solicited e-mail, too.
Plus, opt-out is for all uses of a recipient’s name. When a recipient asks to be removed from a sender’s mailing list, the sender may not share or sell that recipient’s e-mail address to a third party.
The bill does not go so far as to require “ADV” in the subject line, indicating that the e-mail is a marketing message, but new language does say that the header must state clearly what the e-mail message is about. And a physical mail address—not just a return e-mail address—must be included in the e-mail.
Pre-emption rules are modified under the revised bill, too. “States can continue to impose and enforce strong laws against falsity and deception in spam, while still ensuring national standards for compliance with the law,” according to a statement from Sen. Burns office.
The bill also calls for the FTC to recommend how to deal with spam from overseas.
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