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Date: Fri, 24 Mar 2000 01:41:00 -0500 (EST)
From: Ray Everett-Church
In a unanimous voice vote today, the House Subcommitee on Telecommunications, Trade, and Consumer Protection substituted new language for HR 3113 and sent the bill to the full committee on Commerce.
The new bill language:- Outlaws forged headers, invalid return addresses.- The FCC from the original Wilson bill has been switched to FTC and has been radically changed to remove all "opt-out" list issues.- "Pandering e-mail" has been removed entirely. The constitutional experts thought it would raise too many constitutional problems. The object of that section of the bill is addressed by expanding the definition of "commercial" e-mail to include spam that may not advertise a specific product, but advertises something of a commercial nature (e.g., a porn site that makes money selling banner ads).- If you have a business relationship with someone, you may send commercial email, however you must provide a means for them to rescind that relationship vis a vis future e-mail from them. If you don't honor the request, you're spamming.- Spammers required to abide by ISP anti-spam policies (including SMTP banners). Ignore the ISP's posted policy and you're nailed.- The bill also includes "identifiers" to facilitate filtering, to be prescribed by the FTC. Yes... that's like "ADV" in the subject line or something similar, BUT... they are IN ADDITION to abiding by ISP policies, not in lieu of. So in practice, what happens is that if an ISP doesn't have or enforce policies, users still have some means of at least identifying spam accurately. It's an added burden on spammers, an added cause of action, yet doesn't place any onus of spam fighting on recipients or ISPs who are already given recourse via posted policies, etc., if they avail themselves of the opportunity.- ISPs who profit from allowing subscribers to be spammed, but who don't make reciept of UCE a condition of their service (such as free email services, free ISPs, etc.) must maintain an opt-out list for those customers who don't want to be spammed. There is an exemption for free and ad-supported ISPs whose policies require accepting ads.- ISPs are protected from lawsuits if they make a "good faith" effort to protect their consumer (screw ups and acts of God are not their fault, and they shouldn't be punished).- Enforcement: Civil damages equalling the greater of actual damages or $500/message to $50k max, trebled under certain circumstances, includes attorney's fees. Loser pays fees, to discourage frivolous lawsuits.- The FTC is only involved if requested to become involved by an individual, family, or ISP, but then can step in with guns ablazing... issuing cease and desist orders enforceable by the Department of Justice, federal marshalls arresting you for contempt of court, etc.- Effects on Other Laws: Preserving current law that protects ISPs from being sued for the content of e-mail that their subscribers send, etc. State laws on spam also preserved.
The new text will be on http://thomas.loc.gov (search for "HR 3113")
by sometime next week. Meanwhile there's a draft on the
SueSpammers.org site
I think it gets at most of what we've been hoping for, and while not perfect, I think it's about a thousand percent better from where we were this time two years ago. The DMA is not pleased, but what else is new.
On to the full committee and the House floor, and hopefully to get a version of it introduced in the Senate (stay tuned!)...
-Ray ```
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