$1.5 billion at stake: Senate calls for 'Do-not-spam'

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Call it "do not spam."

The U.S. Senate could vote as early as this week on spam legislation, and while the current proposal, to be considered from U.S. Sens. Conrad Burns, R-Mont., and Ron Wyden, D-Ore., targets only fraudulent spam, amendments could threaten all unsolicited email. One likely amendment, from Sen. Charles Schumer, D-N.Y., would create a do-not-spam list akin to the do-not-call list, a measure that the Direct Marketing Association said could endanger $1.5 billion in legitimate unsolicited email transactions.

While a vote could still be postponed until after its August recess, there are clear indications Congress is ready to act this year. The House Energy and Commerce Committee was slated to vote on spam legislation several weeks ago, but the vote was put off after the sponsor of the legislation, committee chairman Billy Tauzin, R-La., risked seeing his legislation replaced with one much tougher on marketers if he went ahead.

Rep. Tauzin's legislation would require consumers be given the opportunity to opt out of messages whose "primary purpose" is to advertise, but consumers would have to make separate opt-out requests to each company affiliate. Opt-outs would last three years. The legislation requires the Federal Trade Commission to show that marketers knowingly violated the law before action could be taken and state attorneys general can only act on fraud if the FTC does not.

not far enough

Privacy advocates contend that does not go far enough and say the problem is the number of unsolicited e-mails, not simply fraudulent ones.

U.S. Rep. Heather Wilson, R-N.M., claimed she had the support of more than half of the committee for legislation she and Rep. Gene Greene, D-Texas, offered more broadly targeting unsolicited e-mail. That legislation defines spam as unsolicited commercial e-mail and requires consumers be given an opportunity to opt out of all e-mail from a company, not just advertising e-mail. It would also require companies that share e-mail addresses with affiliates also share consumers opt-out preferences. The legislation would give state attorneys general greater leeway in enforcing the law, and make violations subject to a $500 per e-mail address fine. It defines opt-outs as lasting five years and puts some restrictions on sexual spam

The Burns/Wyden bill aims at fraudulent e-mails. It would ban messages with phony or misleading header information of subject headings, require that all e-mailers have a function return address and list a physical address, and require that any sender of commercial e-mail give consumers an opt-out choice. The legislation would also allow the FTC to enforce the new law against spammers as well as marketers who knowingly benefit.


Sen. Schumer's proposal is tougher. It would cover all commercial e-mail, require "ADV" be in subject lines and would let attorneys general or Internet service providers sue spammers for damage.

The Direct Marketing Association last week said it supports the Burns/Wyden legislation, but is concerned about the Schumer measure.

The DMA said its studies show legitimate commercial e-mail for books, travel, magazines and numerous other products generated $7.1 billion in sales a year as of last May. Of that, $1.5 billion comes from unsolicited e-mails, the DMA said, warning that could be at risk in the Schumer legislation.

Louis Mastria, a DMA spokesman, said the Burns/Wyden bill would go after "the Nigerian grandmothers and Viagra e-mails" separating out legitimate from illegitimate e-mail. He claimed it would stop illegitimate marketers from flouting the law and give the FTC additional enforcement authority.

dma warns schumer

The DMA last week sent two letters to Sen. Schumer warning his legislation "would impose tremendous costs" and that it "threatens the utility of this new medium for legitimate commercial uses." One of the letters, signed by executives of 18 advertising, publishing and marketing companies, warned the list would be ineffective against spammers who already violate the law while having the effect of "punishing legitimate marketers."

Among the signatories: Christie Hefner, CEO of Playboy Enterprises; Lawrence M. Kimmel, chairman-CEO of Grey Global Group's Grey Direct; Daniel Morel, chairman-CEO of WPP Group's Wunderman; Thomas O. Ryder, CEO, Readers Digest Association; and Jerry Shereshewsky, executive director, Yahoo!

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