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Regulation and Compliance > Legislation

Will Canning Spam Hurt Commerce?

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“Low interest loans!” “Clear yourself of debt!” “Get a Ph.D. in theoretical physics in six months!”

As Internet users become more and more angry over unsolicited commercial e-mails, known as spam, clogging their mailboxes, pressure grows on Congress do to something about it.

For insurance companies and agents, the concern is whether Congress will go too far. Will legislation aimed at eliminating spam be so far-reaching as to prevent companies and agents from using the Internet to communicate with their customers?

The issue that Congress should focus on, says David Winston, former vice president of government affairs for the Falls Church, Va.-based National Association of Insurance and Financial Advisors, is unsolicited misleading or pornographic e-mail.

Congress should be careful not to prevent legitimate businesses from using the Internet to reach out to consumers, he notes.

“The use of e-mail is an economical and efficient way for small businesses to promote their products and increase their visibility among consumers,” Winston says.

John Savercool, vice president of federal affairs for the Washington-based American Insurance Association, agrees.

While some of the legislation considered in the past appeared on the surface only to target spam, he says, the reach was far broader.

Some of the bills, he notes, would not just have affected spam, but also legitimate communications between businesses and their customers, including customers who said they want to use the Internet as their primary communications tool.

David Leifer, senior counsel with the American Council of Life Insurers, says ACLI recognizes that spam is a legitimate concern. But the focus, he asserts, should be on pornography and fraud. That, he says, represents a huge percentage of the problem.

As of this writing, anti-spamming legislation has not yet been introduced in the 108th Congress.

But there is little doubt that legislation is on the way, and Savercool believes Sen. Conrad Burns, R-Mont., who introduced a bill in the 107th Congress, is likely to be the first one out of the gate.

Indeed, in a statement earlier this year, Burns called spam the “Trojan Horse for e-commerce.”

In laying out his agenda as new Chairman of the Senate Communications Subcommittee, Burns cited a study from San Francisco-based Ferris Research which says spam costs U.S. businesses some $9 billion annually.

According to the study, Internet users spend an average of 4.4 seconds to delete spam e-mail every time they check their inboxes. This, the study says, results in $4 billion of lost productivity each year.

Moreover, the study says, businesses have had to spend another $3.7 billion in servers and bandwidth to cope with the increased traffic.

“This is evidence spam has handcuffed American businesses,” Burns says. “The $9 billion spent dealing with spam could have been $9 billion used to invest back into the business or to avert layoffs.”

Although Sen. Burns has not yet introduced legislation in the new Congress, he sponsored S. 630 last year. The legislation was approved unanimously by the Senate Commerce Committee but was never brought to the floor of the Senate for a final vote.

Called the CANSPAM Act, the legislation would have made it a crime to transmit false or misleading information by e-mail, barred deceptive subject headings, mandated inclusion of a return address or comparable mechanism in unsolicited e-mail, prohibited the transmission of spam after objection and mandated identification of the sender.

Violators could be hit with fines of up to $1.5 million. In addition to the government, the legislation would have allowed Internet Service Providers to file lawsuits against violators.

In the House, two bills were introduced last year.

Rep. Heather Wilson, R-N.M., introduced H.R. 718, called the Unsolicited Commercial E-Mail Act. In addition to requiring identification of commercial e-mailers, the legislation would have required spammers to provide a way for consumers to stop future transmissions.

Like S. 630, H.R. 718 would have allowed ISPs to sue spammers for up to $500 per message for violation of the law. But H.R. 718 went one step farther; it provided a private right of action to allow individuals to sue to prevent spam.

Leifer says the private right of action was a big concern for insurers. Suppose, he says, that an insurance company inadvertently sent out the wrong e-mail. That company, Leifer notes, could face enormous litigation costs.

As far as S. 630 goes, he adds, ACLI was also concerned about allowing ISPs to sue e-mailers.

But there were some definitional concerns regarding S. 630, Leifer says. Suppose, he says, that an insurance company sends out a business notice to a customer, but includes some advertising information about, for example, a long term care policy.

This type of thing is standard in the paper world, he notes. But the way S. 630 was written, this information about the LTC policy could have been construed as spam.

He says that after Sen. Burns introduced S. 630, several improvements were made in the language. The legislation never reached the point where the industry could support it, Leifer says, but there was definite progress.

The bill that did draw support from the industry was H.R. 1017, introduced by Rep. Bob Goodlatte, R-Va. That bill, called the Anti-Spamming Act, would have made it a crime to fraudulently use another individuals e-mail address to send spam.

Leifer says this legislation was backed by the industry because it focused on much of the problem. The concern of many consumers, he claims, is that there is no way to communicate with spammers to prevent future mailings.

This bill would have addressed that issue, he notes. Winston agrees, saying that by limiting the scope of his legislation to fraudulent, misleading or pornographic e-mail, Goodlatte would not have interfered with the legitimate use of a valuable marketing tool.

Wilson, however, blasted H.R. 1017, arguing it would do nothing to slow the flood of spam.

The Goodlatte bill, she said, would not provide consumers with the right to tell a company to stop sending junk e-mails.

During consideration of the legislation in the 107th Congress, the House Judiciary Committee rejected Wilsons approach and instead voted in favor of H.R. 1017. But the bill never made it to the floor of the House and it died when the 107th Congress adjourned.

Savercool says he believes action in the 108th Congress will probably start in the Senate. He notes that both Burns and Wilson feel strongly about the issue, but the staff members in the House who worked on spamming legislation last year have been tied up with other projects so far this year.

“I dont think anything is imminent on the House side,” Savercool says.

As chairman of the Senate subcommittee with jurisdiction over the issue, Savercool observes, Burns is in a position to move the bill forward.

However, he says, it is unclear whether the chairman of the full Commerce Committee, Sen. John McCain, R-Ariz., is interested in the issue.

Reproduced from National Underwriter Edition, March 3, 2003. Copyright 2003 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.


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