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
HR3888 is the House version of a similar, companion bill, S1618,
passed by the Senate and already being used as a shield for spammers. The
flood of resulting spam since S1618 was passed by the Senate (meaning it's
*not a law* yet) has lead to the coining of the derisive term, "MURK" to
describe spam claiming to be in compliance with the bill's provisions. The
term was coined by outraged spam recipients in (dis)honor of the Senate's
sponsor for S1618, Senator Murkowski. The HR3888 language closely
parallels that in S1618.
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
- 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
- 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
- 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
for further information on this bill and how to contact your congressmen.
Note: Title IV begins on page 27. The telephone slamming portions of
this markup are not available yet, but those are not at issue.
since 5 August 1998.
PUBLIC NOTICE: Use of Tigerden computer and network facilities
for the purpose of transmitting unsolicited commercial advertising
electronic mail to any user or account on or through Tigerden machines is
expressly PROHIBITED. Appearance of any e-mail address on these pages
does *NOT* constitute solicitation of advertising e-mail.
Last revised: 7 Aug 98