US Policymakers Attempt to Climb Mountain of Spam (Part 2)

4 April 2001
(Also see "US Policymakers Attempt to Climb Mountain of Spam (Part 1)")

In the near future, U.S. Congress will likely pass legislation that addresses the sending of unsolicited email (spamming), although the exact terms of the bill are yet to be decided. The hottest issue is the debate over whether the senders of unsolicited email be required to offer an opt-out option or an opt-in option.

Congress has addressed the issue before and saw what worked, but for some reason they are missing the boat on spam, according to anti-spam expert Ray Everett-Church of San Jose.

"Even though they have made junk faxes a purely opt-in program that has worked extremely well," Everett-Church explained, "they don’t want to do the same for e-mails."

Everett-Church, who founded the Coalition Against Unsolicited Commercial E-mail (CAUCE), does point to some similarities with telemarketing and spamming.

"Schools, companies and ISPs all have to bear the cost to receive those e-mails," he said. "Now marketers are using techniques that make the amount of e-mails received even greater."

One such practice has e-mail marketing firms learning something from their telemarketing forefathers. Demon dialers were a common practice for telemarketers years ago. The system works by randomly dialing the final four numbers after a known exchange is entered. Often times the calls don't go through, but those that do can be effective for the marketers.

The same practice is being carried over to e-mail. Everett-Church explained how common names such as "joesmith" are entered into a program and ran through with or other known e-mail servers at the end. A combination of names and numbers may be used to reach the most users. Of those e-mails sent, only a small number will reach actual users, but the cost to both the ISPs and the consumers is enormous.

"Only a tiny fraction of that will reach an end user," Everett-Church said, "but all of it gets shoved into the system and can cause systems to break down and crash. Even if it doesn't crash the system it can slow them down to a crawl."

Anti-spam experts agree that most of the bills introduced so far in the legislature don’t have a lot of teeth to them. Not only are all the bills of the opt-out variety they all give marketers a window of time to stop sending the e-mails once a users has asked to stop receiving them.

That does little, according to Choose spokesman Anthony Phipps, who points out that much of the spam can be the same message but come from what appears to be different senders. But, he says his group is willing to play the give-and-take game as long as some measures are included in the bill, anything is better than the status quo.

"If it means we have to accept an opt-out bill, provided that bill includes the proper penalties and clear avenues for consumers and ISPs to get restitution then that is something we would probably support," he said.

But, Everett-Church feels his group must press forward in trying to get a real solution to the problem. He thinks if ISPs were allowed to compete on the basis of how they treat spam, the industry would see a great deal of change.

"The solution that we have suggested, and that we continue to push for, is that ISPs should be permitted to post a 'No Trespassing' sign," he said. "Since they are kind of the choke point where all of the cost is born, this would give them the right to police the industry. It would allow marketers to avoid flooding a system that might result in them getting sued and give ISPs the option to opt-out their entire customer base."

"That would allow ISPs to compete on the issue of their policy regarding spam," he said.

Everett-Church thinks his plan would be beneficial to all involved--consumers, ISPs and marketers.

"If an ISP wants to declare itself anti-Spam, great," he said. "If an ISP wants to say, 'We accept everything,' then that will allow them to compete and give consumers a choice. It will let marketers make it worth the ISP’s while to avail themselves of the service."

If passed, ISPs and consumers would not be held hostage by the actions of marketers. Instead, marketers would be trying to align themselves with the proper partners.

"We are looking at legislation that would essentially rebalance the economics here and let the market find a solution," Everett-Church said. "If the market decides that spam is valuable, great. If an ISP says we won’t accept spam and you will have to pay a higher rate, then great, that is the market in action."

Regardless of the form the final anti-spamming bill may take, both Phipps and Everett-Church agree that action may come soon.

"I think it is good news that they (the Senate) are talking to people on the House side," Phipps said. "There is staff level discussion going on regarding the bill. I think in the end you will see an opt-out bill that makes things illegal like fraud and protections for marketers also built into it."

Both also agree though that spam policy is likely to be legislated through a provision to a larger bill addressing privacy issues.

"What they will do in regards to spam will have to be consistent with what they want to do with other privacy and marketing issues," Everett-Church said.

Phipps says that if the bill is folded into other legislation that causes the anti-spam portion to lose its muscle, groups like his will likely voice their concern.

"Things seem to be moving quickly," he said. "It appears this is an issue that is going to be dealt with on the Senate side as well, although it will be in combination with other Internet issues."

But, Phipps is taking a cautionary look at the ground that is being paved towards anti-spam legislation.

"The Senate is the wildcard," he said. "I have guarded optimism that we will see quick action. It appears that both sides are motivated and are talking, and that is always a good sign in D.C. Provided nothing unusual happens then I am guardedly optimistic that something could happen by the end of this session."

Everett-Church thinks that time table could be extended slightly.

"I don’t see action happening before very late in this year and maybe much closer to the second half of the session," he said. "This is likely to drag out a bit. We have seen a little bit of a flurry of activity now, but my sense is that Congress is looking at spam as part of the broader set of privacy issues that are of concern to consumers."

The concern over doing something, anything, about spam continues to grow across the country. That has seen industry and sectors of all kinds increasing their involvement on the issue. Congress has proven that it's willing to take action, but Everett-Church warns that many on the Hill still have a lot of lobbyists to hear from.

"There are also a lot more outfits weighing in on this," he said. "There are a lot of corners to be heard from yet and that will complicate things as well."

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