HR3888 Spam Text - 5 August 1998

Below are links to scanned pages of the latest (5 August 98) markup language in Title IV, the spamming provisions of HR3888, the telephone slamming legislation currently being worked in the U.S. House of Representatives.

There are numerous technical flaws with HR3888 language which make the whole thing worthless to keep consumers from receiving spam, or to keep ISPs and consumers from being forced to incur the tremendous cost burden spam imposes:

• The provisions in this markup basically require that spam have 'body-tags' of "This message is unsolicited commercial email." This means that there is no effective method to readily identify spam short of receiving the entire message and scanning the body for the tag. This also means the ISP must receive and store the message if filtering is done by the end-user who must download the message in order to filter it. The elimination of costly consumer downloads is the reason which was initially given by Sen Murkowski for his amendment in the Senate. This House measure completely misses the entire concept of consumer protection from unwanted cost-shift advertising.

• Additionally, the 'body-tags' constitute government-mandated labeling of content. Such 'compelled speech' a dangerous precedent for eventual censorship-via-labels. Such labeling was ruled unconstitutional by the Supreme Court when it took up the Communications Decency Act case. This issue also lead the Senate to drop a similar requirement for subject tagging from S1618. While the end-user's filtering on content may be acceptable, having the ISP scan messages for content in the body is clearly invasion of consumer's e-mail privacy. It is ironic that the very same people seeing an extension to the existing, court-tested, junk-fax statute as a threat to free speech are the very same ones embracing the concept of 'compelled speech' in requiring censorous tagging and privacy-invading filtering.

• The language preempts state law which could impose stronger measures, keeping in place only existing law prior to 1 July 1998. This means the Washington law, passed as a 'first step' to control spam can no longer be strengthened. The already toothless Nevada law will be retained. The California legislation, the *best* piece of state spam legislation, which is *very* close to being put on the books (late Aug or September according to contacts in Assemblyman Miller's office), would be thrown out altogether.

• This language eliminates any private right of action, forcing the FTC or state Attorneys General to be the only agencies who can take action against an offender. The FTC is also given clear ability to intervene in any state action. Given the already overworked staffs of state and federal bureaucracies, it is unlikely e-mail spam will ever receive much meaningful attention. The FTC, for example, has an existing clear mandate to go after fraud perpetrated via e-mail, but has to date dealt with only a handful of cases. Anyone should be able to see just how effective they've been by examining their own e-mailboxes.

• Federal or state action can only be brought in the state where the *defendant* is found. While this may be of little concern in a federal action, it clearly limits a state from seeking relief, since the AG of the defendant's state, not even necessarily the state of origin, the receiving state, must be the one to take the action. This additional cross-state bureaucratic hurdle will only impede the effective prosecution of those using 'throw-away' accounts from providers located in other states than where the spammer resides.

• The language does not provide any meaningful way for an ISP to provide a 'spam-free' service to their users. As a minimum, any legislation should recognize the fact that provider's equipment is private property, and a 'no-tresspassing' sign for spammers should be honored. In preempting state laws, it may even invalidate ISP prohibitions in their Acceptable Use Policies or prevent ISPs from canning spammers who violate them. Current language allows for only a Federal court action by ISPs against spammers, and limits damage awards to $15,000, a paltry sum considering the damage possible to large networks. Earthlink won a $2,000,000 judgment against Cyber Promotions. Flowers.com was awarded over $19,000. For a large advertising campaign, a potential $15,000 fine could be seen as a simple cost of doing business.

• The language is pure 'opt-out', meaning that Internet consumers will be forced to attempt removal from thousands upon thousands of lists. Individuals will have no recourse other than pleading to the Attorney General of the *defendant's* state or the FTC should removes not be honored. Of course, there's nothing stopping spammers from establishing multiple lists and/or changing origins in order to spam away freely.

• The language essentially legitimizes the practice of spamming provided the minimal identification requirements are met, providing a potential air of legitimacy to cost-shift junk mailing, threatening to bring even more spam to your mailbox and higher ISP fees to cover their costs.

• The language prohibits any private right of action to allow Internet users to police their mailboxes themselves. At a time when the public has been calling for less government, not more, this bill and it's companion S1618 create still more taxpayer-funded Washington bureaucracy. This is yet another way spammers are stealing from the consumer.

This markup to the already unworkable HR3888 is an abomination. On Thursday 6 August 1998 this markup language was passed by the House Telecommunications subcomittee. It will come before the entire committee in September. Call your representative *NOW* and voice your opposition. See http://www.cauce.org for further information on this bill and how to contact your congressmen.

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Note: Title IV begins on page 27. The telephone slamming portions of this markup are not available yet, but those are not at issue.

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Last revised: 7 Aug 98