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We appear to be on the verge of having a national law on the problem of spam. The CAN-SPAM act would preempt the numerous attempts that have been made by various states to regulate the issue. (Heres a PDF file of the latest version of the bill.) Theres a lot of common sense in the bill and its both good for the covered spamming practices to be made illegal and important that this become a national law. But the CAN-SPAM act wont make a substantial difference in the actual amount of spam you receive.
CAN-SPAM is actually an acronym for the full name of the bill: “Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003.” The version I linked to above is the one most recently passed by the Senate. The final version will be very close to it and President Bush is expected to sign it. Click here for links to previous versions of the bill.
As I read through the bill a number of things that caught my attention in it. Since IANAL (I am not a lawyer) as they say online, I asked several about it. None wanted to be quoted in public by the likes of me (not even my Uncle Lee), but Ive cherry-picked some of the better observations for my analysis.
- The congressional findings listed at the beginning of the bill seem basically correct to me: E-mail is an important and good thing; spam is a growing problem that devalues legitimate e-mail; much spam is fraudulent both in its content and in descriptive elements; and much spam is vulgar or otherwise offensive. Congress determines that e-mail should not be misleading and that recipients should be able to opt-out of mail from the same source.
- A user can give “affirmative consent” to receive mail from a sender and from third parties. That sounds simple enough, but when the user opts out from receiving mail from that sender, are the third parties also required to opt-out? How is the user supposed to verify through whom a particular sender got their consent?
- The “Sender” of a message is defined, in part, as “…a person who initiates such a message and whose product, service, or Internet Web site is advertised or promoted by the message…”
The “and” in there has me concerned. If the sender is a marketing company employed by the company whose product, service, or Internet Web site is advertised or promoted by the message, are they not the sender? Lets assume the bill really means “or” where it says “and.” This could end up being very unfair to companies whose products are being resold out of their control.
For instance, can Pfizer really exert control over downstream “pharmacies” who buy Viagra from distributors and sell it online and use Pfizer images to do so? The wording of Section 6(a) leads me to believe these companies at least need to make some effort to prevent their products from being sold through spam advertising.
- If one operating unit of a company with multiple operating units (for example, Jeep and Dodge, both operating units of DaimlerChrysler) sends e-mail, the unit is treated as a separate sender from the overall entity. So if you consent to Jeep sending you e-mail, that doesnt give Dodge permission to send you e-mail.
- Section 4(a)(1)(a) appears to attempt to ban the use of open relays and open proxies in the pursuit of interstate or foreign commerce. The key is that the sender is attempting to access a “protected computer” without authorization. The term “protected computer” is defined in Section 1030(e)(2)(B) of Title 18, United States Code to mean even computers outside the U.S. So, unauthorized use of an open proxy in China is illegal in the U.S., if its used to send a commercial message to the U.S.
- The bill specifically bans harvesting of e-mail addresses and directory service attacks.
- It provides for serious jail time. Well see how spammers get treated in the joint.
- It provides for the creation, eventually, of a do-not-spam list and a study of potential problems with it. I agree with most observers that the problems will be substantial.
In general, the bill recognizes the right of companies to send commercial e-mail, even unsolicited e-mail under some circumstances and within certain rules.
The bill has gotten a lot of criticism for this acquiescence from those who would only allow opt-in mail. But could be perfectly reasonable. When I think of the spam problem, its clear to me that the problem has very little to do with the messages that I receive from legitimate companies with which I have done business. Instead, the problem has almost entirely to do with dinky, nothing companies that Ive never done business with and never would do business with. The former are going to respect the rules in this law, and the latter will ignore them anyway.
Next page: State Law Preemption and Private Rights of Action.
Page Two
Meanwhile, much has been made of the fact that CAN-SPAM includes no right of action by private persons against spammers. This means that only the government can pursue cases.
In many of the state laws, private individuals and organizations can sue spammers in court under the law. You might remember that Microsoft filed suit against several big-time spammers this past June under the Washington state law. CAN-SPAM would specifically preempt all the state laws, but it leaves in some exceptions:
So, the states still have some leeway to pursue claims of their own related to falsity and deception, and perhaps private rights of action can still proceed in these cases. In fact, falsity and deception were at the heart of the Microsoft cases, so I wouldnt be surprised if they are important tests of how much life is left in the state laws.
Microsoft also filed some cases in United Kingdom courts, so presumably the suits could continue there.
There is another set of exceptions for the state law preemption related to non-spam issues. In other words, CAN-SPAM does not have an effect on state laws related to trespass, contract or torts, fraud, or general computer crimes.
However, Im ambivalent about the private rights of action because there are too many lawsuits in this country. Still, in spite of the initial hostile reaction, CAN-SPAM does strike a good balance—only time and court cases will tell in this regard.
But for the most part, the law expects state attorneys general to be bringing cases in federal district court on behalf of aggrieved residents using this bill. No doubt, many of them will base their future gubernatorial bids in part on their anti-spam stance. (Maybe the legislation would be better called the Eliot Spitzer for Governor of New York Act or ES-GNY instead of CAN-SPAM.)
In addition, its interesting to note that the bill bans several uses of e-mail which are provided for, explicitly or implicitly, in the SMTP specification. Perhaps this will be further incentive to change the specification itself.
CAN-SPAM is not a bad thing as far as I can see, but its not going to make a big dent in the spam problem. Far too much spam comes from overseas from entities unreachable, for practical if not legal reasons, by laws in the United States.
Even within the U.S. its not hard to see how spammers, who we already know to be unscrupulous, will evade effective prosecution. But at least the law will pick off some low-hanging fruit, the really-stupid amateur spammers, as well as deter some others.
As Scott Petry, founder and vice president of products and engineering at Postini put it to me: Its just one more arrow in the quiver.
Security Center Editor Larry Seltzer has worked in and written about the computer industry since 1983.
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