The U.S. Senate last week unanimously voted (97-0) to pass the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM).
The bill is aimed at curtailing the growing amount of unsolicited commercial e-mail, or spam, but many experts are concerned that it will be ineffective.
The original legislation would have created a "Do Not E-mail" list, similar to the national "Do Not Call" list established earlier this year by the Federal Trade Commission. The version that passed recommends a No-spam list, but does not mandate it. It instead requires e-mail users to opt out of unwanted commercial e-mail instead of requiring e-mail senders to get opt-in permission.
The legislation breezed through Congress, but is being challenged in the courts by marketing trade organizations.
The change in language caused one of the bill's original backers, the Coalition Against Unsolicited Commercial Email (CAUCE) to withdraw its support. The group has been at the forefront of lobbying efforts for a federal law dealing with spam.
We asked a representative from CAUCE and the CEO of a e-mail marketing firm:
How effective will the U.S. CAN-SPAM Act be?
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John Mozena: "This bill fails the fundamental test of any anti-spam bill."
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John Mozena, CAUCE: This bill fails the fundamental test of any anti-spam bill. The problem we have with this bill is that it doesn't have anything in it that is going to stop people from sending spam.
The problem with spam isn't that there is too much fraudulent spam, which of course there is a lot of that, but the problem is that 50 percent of all e-mail is spam.
The other problem with this bill is that it will actually lower the bar in some states that already have tough anti-spam laws on the books. California, for example, just passed a pretty stiff law in September, and the federal law would supersede it and not be as tough. We think it is good that there are federal laws, but they should at least be as tough as state laws.
The bill gives very little control over spam to the actual consumers. The bill requires the FTC to 'study' the possibility of a Do Not Spam list. The problem with that is how long it will take them to "study" the idea. It took nearly 12 years to finally establish the Do Not Call list. We were hoping to see the Do Not Spam list accelerated by using the lessons we learned from the creation of the Do Not Call list, but clearly they want to take a different approach.
The FTC has expressed concerns about creating and maintaining a massive Do Not Spam list, and the opt-out approach of CAN-SPAM basically legalizes spammers to send out e-mail until they're told to stop.
There needs to be something in place that makes them think twice about sending out the spam in the first place.
Until the FTC decides whether or not they care to create a do-not-e-mail list, this bill creates essentially carte blanche permission for spammers to send unlimited quantities of e-mail to the consumer.
John Mozena is vice president of public relations for CAUCE. In addition to his duties with the coalition, Mozena works at Airfoil Public Relations, a PR firm specializing in high-tech companies.
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John Rizzi: ". . . While we may not be able to catch spammers right now, and find out their true identity, it is just a matter of time before technology allows us to do so."
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John Rizzi, e-Dialog:Anti-spam legislation is going to happen one way or another, and we feel that we should support this. Most spammers are already lawbreakers, but there is no federal penalty. The net affect of any bill will probably not cut back on the amount of spam that is out there, and in fact people will probably get a higher percentage of spam in their in-box because the honest companies will just stop sending e-mail for fear of breaking the law.
But if you can't catch a lawbreaker, then any bill that you pass is going to be ineffective. This bill is needed because while we may not be able to catch spammers right now, and find out their true identity, it is just a matter of time before technology allows us to do so. You have to be able to identify the originator of the bad e-mail and block them from sending it in the future. We need to have a law that says once we find you, you will be in big trouble. We have to create a preemptive measure, and this is a step in the right direction for that.
Until effective technology is in place, this bill will likely hurt small business that don’t have the resources to invest into creating a system that complies with the law, only because there are some stiff regulations in it. But I think in the long run they will benefit from the bill and be able to separate themselves as honest e-mailers instead of those companies that continue to commit fraud and break laws through e-mail.
John Rizzi is President and CEO of e-Dialog, a full-service, outsourced provider of precision e-mail marketing services. Rizzi has a wealth of experience in e-mail, direct response marketing, and management of technology startups. He was an innovator in the world of database-driven direct marketing of high technology products to businesses, and is now leading the evolution from permission marketing to precision e-mail marketing.