Marketers keep close tabs on anti-spam bills

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Anti-spam legislation centered on a do-not-e-mail registry had been gaining momentum in recent months as e-mail marketing industry stakeholders squared off against public policymakers. That was before Federal Trade Commission Chairman Timothy Muris’ speech to the Aspen Summit in Aspen, Colo., last month.

"If such a list were established, my advice to consumers would be: Don’t waste the time and effort to sign up," Muris told the crowd of business executives and government officials.

While the nation’s federally endorsed do-not-call registry arguably has been the most popular public policy decision in years—as of Sept. 2, 48.4 million people had registered for the list—several in the industry, including the FTC chief, say applying that same logic to e-mail is a bad idea.

Muris explained that while he is sure the federal government’s do-not-call list will reduce calls significantly, a do-not-spam registry would be ineffective because spammers can quickly and easily create new e-mail addresses and identities and thereby remain anonymous. Also, he said, it costs virtually nothing for spammers to send junk e-mail.

Seeking solutions

Spam violators have been tough to pin down. In fact, a cottage industry of spam filter providers and blacklist and whitelist services has sprung up to try to help companies and individuals solve the ever-growing problem for which there is no easy answer.

There are eight bills pending in the U.S. Senate and House of Representatives. Many have similar elements. Two contain a proposal for a do-not-e-mail registry: The SPAM Act (Stop Pornography and Abusive Marketing Act) in the Senate, introduced in June by New York Sen. Charles Schumer; and the Computer Owners’ Bill of Rights, introduced by Minnesota Sen. Mark Dayton in March.

"A do-not-e-mail registry is seductive," said Trevor Hughes, executive director of the Network Advertising Initiative. "It makes sense at first glance, but the more you look at it, the more you see it makes no sense, and in fact could be harmful to the overall goal."

The problem with the do-not-e-mail registry, many say, is that, ironically, it could cause an even bigger spam problem.

"The paradoxical result of the do-not-e-mail list is that the security vulnerabilities of such a list could result in more spam for those people who put their names on the list," Hughes said. "If that list is compromised by a spammer, e-mail addresses on it become targets as a rich source of active, confirmed e-mail addresses. If security is breached just once, you can’t get the horse back in the barn."

DMA officials agreed. "The fear is that the bad guys will try and get the list, and they’ll have a list of live e-mail addresses that can be used to increase spam rather than reduce it," said Jerry Cerasale, senior VP-government affairs at the Direct Marketing Association.

Federal bill likely in ‘04

The DMA does not endorse either of the bills that include do-not-e-mail proposals, but it supprts other legislation in both the House and Senate. "The DMA supports the Burns-Wyden [CAN-SPAM Act] bill in the Senate, the Hatch-Leahy [Criminal Spam Act] bill in the Senate, and the Burr bill [Reduction in Distribution of Spam Act] in the House," Cerasale said.

He said legislation may not be passed during the current session of Congress, but he did predict there would be some form of legislation, possibly in the spring.

"Politics will prevail, and we will see [do-not-e-mail list] legislation," forecast Larry Ponemon, chairman and founder of research company Ponemon Institute, who participated in a panel discussion on privacy at the DMA’s B-to-B Conference in Tucson, Ariz., last week.

The FTC’s Muris said determining how to locate and prosecute spammers is important. But he said legislation alone may do little to stem the spam problem. "No one should expect any new law to make a substantial difference by itself," he said.

The most important element needed to combat the ever-growing spam problem is technological innovation, Muris said.

Still, most in the industry welcome federal legislation despite its limitations, particularly because most federal proposals call for pre-emption of individual state spam laws. There currently are 35 individual state spam laws—a compliance nightmare for any marketer.

"Federal legislation will pre-empt those state laws, and that is a huge benefit to the industry," Hughes said. "I’d argue the industry can benefit from a pre-emptive standard, even if it’s the most restrictive, because it makes the standard consistent. It’s a predictable environment [in which] to do business."

Reggie Brady, president of Reggie Brady Marketing Solutions, a Norwalk, Conn., e-mail marketing consultancy, said she is in favor of legislation and thinks it will provide a standard for e-mail marketers. As for timing, Brady, like DMA’s Cerasale, said federal legislation is likely to pass next spring.

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