Uh, Oh … Congress May Revisit Can Spam

In a move that has “this could be very bad” written all over it, a Congressional committee has indicated it may hold hearings on the Can-Spam Act of 2003 to assess whether the law needs to be changed.

The House Committee on Energy and Commerce in January sent a letter to Federal Trade Commission chair Deborah Platt Majoras expressing concern over reports of the rising volume of spam e-mail.

“As you know, Congress passed legislation in 2003, the Controlling the Assault of Non-Solicited Pornography and Marketing Act to put a lid on this problem,” said the letter.

“What we have learned recently raises concerns that Can-Spam has not really helped to solve the underlying problem,” the letter continued. “We are considering holding hearings to look into the impact of the statute, including its implementation and enforcement, and the need, if any, for changes to the law.”

The letter gave Majoras until Feb. 8 to respond. A press contact for the committee said the FTC’s response has not been made public yet.

Let’s hope Majoras’s letter included at least some of the following points:

When the Can-Spam Act passed in 2003, it superceded a stifling maze of state legislation that threatened to eradicate commercial e-mail. As it stands now, the law allows companies to make good-faith mistakes while giving law enforcement officials and Internet service providers the tools to prosecute the criminals who are truly responsible for the unwanted torrent of e-mail polluting the Internet.

No other e-mail-related law in the world has been used even close to as often or as effectively as the U.S. Can Spam Act to prosecute fraudulent e-mailers.

By the subcommittee’s own reckoning, Can-Spam has been used by the FTC, the Department of Justice, state attorneys general and Internet service providers to bring more than 90 prosecutions.

The current flood of spam will not be eradicated by any changes in the Can-Spam Act.

However, this isn’t to say the law can’t be improved. If the act is to be changed at all, it should be changed so it is even more clear that it was designed to supercede ill-conceived state laws. The so-called child-protection do-not-e-mail registries in effect in Utah and Michigan come to mind.

Currently, the Can-Spam Act says it supercedes all state anti-spam laws except those that combat fraud, and those that are not specific to e-mail. Utah and Michigan used the not-specific-to-e-mail exception to pass their child-no-e-mail registry laws, claiming that since registrants could include cell phone numbers and other “contact points,” Can Spam didn’t apply.

If Congress does revisit the Can-Spam Act, it is imperative that members of this industry testify to try and get the exceptions to the federal law tightened, and to help keep the hearings from becoming a “make-it-opt-in-like-the-UK” anti-spammer love-in.