The new Federal Anti-Spam Law

[Dave Farber <dave () farber net>]

Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Sat, 22 Nov 2003 08:19:21 -0800
From: "Anne P. Mitchell, Esq." <amitchell () isipp com>
Subject: The new Federal Anti-Spam Law
To: dave () farber net

Hi Dave!

Thought that you might be interested in this follow-up.

Congress voted on the new Federal anti-spam law last night.  The most
recent text (which may or may not be the final version, but is
certainly close) is at:

http://news.com.com/pdf/ne/2003/FINALSPAM.pdf

This is the text which was released at around 3:30 pm EST Friday.
According to our insider, there have been at least some changes made
on the floor since.   Whether the final, passed version has changed
significantly, if at all, from the above, I don't yet know for
certain. Of anyone here I'd say that Declan is most likely to know,
as he is presently the closest of anyone of which I'm aware to source
sources.

It was also our insider who said that the bill in its ultimate (and
by now presumably passed) version was significantly tighter and more
pro-consumer than the version which passed the senate and went to the
house earlier this month.  Based on my comparison of the above, and
the previous version, I'd agree.

That's good.

On the other hand, it still doesn't go nearly as far as the CA law
did, and that is arguably bad.

Still, one must be pragmatic - it doesn't really _matter_ if it's
better or worse than the CA law, right now, because it *is* (will be)
the law.  If we *have* to have a Federal law, and if it *has* to pre-
empt the states, then this one at least has some positive aspects to
it.

I of course am personally thrilled that the vendor liability section
survived (Section 6).

On a brief and bleary-eyed skim, it, among other things,

1.  Makes illegal using open proxies or relays or any other form of
resource misappropriation.

2.  Makes illegal _any_ commercial message sent with false header
information.

3.  Requires a working manner to unsubscribe which must continue to
work for at least thirty (30) days after the mail is initiated.

4.  Makes illegal the sender or anyone acting on behalf of the sender
sending mail to a recepient who has unsubscribed, *and* makes illegal
the transfer or sale of such recipient's name to another entity.
Meaning it makes illegal the old unsubscribed recipient shell game.

5. Makes illegal the providing of spam support good or services where
the spam support provider has a 50% or greater interest in the
spamming vendor, *or* has knowledge of the spam and receives or
expects to receive an economic benefit from the spam (goodbye pink
contracts.  It will be interesting to see how quickly this provision
is used against service providers who fail to terminate spamming
customers).

6.  Specifically states that the enforcing entity does not need to
prove intent in order to obtain a TRO or C&D order.

7.  *Vests in state agencies and state attorney generals the ability
to sue spammers, in Federal court, on behalf of the state's citizens
who have been spammed.*  Is this the same as a private right of
action?  Well, no. But it *does* mean that private citizens can
petition/lobby their state agencies and represenatives and attorney
generals to act on their behalf, and I'd suggest that rather than
wringing hands and nay-saying, people should start right now pushing
their state legislators to create an "Office of Spam Enforcement"
specifically for this purpose.

8.  Provides for attorneys fees to the state agency in any state-
initiated action.  This is *really* important, because unbeknownst to
many, a court *cannot* award attorneys fees unless there is a
specific provision of the law providing for fees, and this section
can help to convince state agencies that it is a feasible
proposition.

9.  Provides that *internet access service providers* may also sue,
on their own behalf, in Federal court.

10.  *Specifically* states that the law does *not* impact an ISP's
ability to determine and enforce its own policies for transmission of
email.  This means that nobody can sue an ISP for blocking the mail
they send, trying to claim that the ISP must accept and deliver it
based on the Federal law.

---------

There is, obviously, a lot more, but these are the points which I
think are most salient, and interesting, to the people on this list.


Anne

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