resurrectionsong

December 05, 2003

Mmmm....CAN-SPAM Tastes Good To Bush--Opinion Engine

The President is expected to sign into law the CAN-SPAM Act of 2003 before the end of the year. As a marketer and Bush supporter, I'm hopeful that it's a positive step towards fighting bad spam while making it easier for legitimate email marketers to comply with anti-spam laws.

The law goes into effect January 1, 2004 and is preemptive of all state laws. This means that it overrides the thirty-six states that already have spam laws. And, most importantly, it is preemptive to the tough pending California law that was to go in effect January 1st. The great news is that once the federal law passes, you only have to comply with one law - the federal law. And, unlike California state law which would have allowed a private right of action entitling recipients of prohibited spam to sue for statutory damages of $1000 per message, the soon to be passed federal anti-spam bill does not include a private right of action. While this new law will not stop spam, it does make most spam illegal and ultimately less attractive to spammers. The law is specific about requirements to send commercial email and empowers the federal government to enforce the law. The penalties can include a fine and/or imprisonment for up to 5 years.

More Spam Laws for spam lovers and haters alike. Enjoy!

Posted by at December 5, 2003 11:42 AM | TrackBack

Comments

Souless marketing spammer guy!

Posted by: zombyboy at December 5, 2003 12:10 PM

Unfortunately this legislation is so boneheaded it's going to make the spam problem a lot worse. There's nothing to be hopeful about here, except to hope Bush tosses it out or someone fixes it fast (or the courts strike it down for the mechanism by which it overrides state laws). Right in the section you quoted is the meat of it:

- No private right of action. Translation: An overworked agency like the FTC gets tasked with prosecuting, if ever.

- Overriding tougher state laws.

The only thing that's onerous for spammers are that they can't legally falsify sender addresses and they must provide a working remove link. Big deal! That's easy for them to comply with to semi-legitimize themselves, and they don't even have to comply--because they're practically guaranteed by the enforcement provisions that they'll never be touched.

Just as dumb, there's no opt-in provision. It's all opt-out, meaning any company has a free shot to spam you. The do-not-spam list authorized is not mandated, and as CAUCE points out, it took a decade for a non-mandated do-not-call list to be created despite telemarketing becoming a huge problem in that time.

CAUCE has informative reading on anti-spam law, and what could work and what won't. Most galling from their perspective (and mine) is that people can't self-enforce by suing spammers. Such suits needn't tie up the courts or become nuisances because they're limited, and after a brief wave of them I expect spam would become uneconomical. Requiring the FTC to enforce the act is unrealistic; the problem is beyond their scope. Because enforcement is nigh impossible, in effect Congress has just repealed all working state laws without replacing them.

I blame both houses and parties in Congress for passing this appalling mess, not Bush. But I do wish Bush would stop rubber-stamping everything that comes across his desk.

Posted by: Lummox JR at December 5, 2003 12:13 PM