Last month, two anti-spam bills were debated in a joint subcommittee hearing in the House. Both require unsolicited commercial email to contain a street address for the sender and a link or email address that would allow recipients to refuse all future email from the sender. This is known as an "opt-out."
The first of these is the Anti-Spam Act, sponsored by Republican Heather Wilson of New Mexico and Democrat Gene Green of Texas. It contains a broad opt-out provision and strict rules governing the format of emails with adult content.
Richard Burr, a Republican from North Carolina, is sponsoring the RID-Spam Act, the other major contender in the House. It mandates consistent labeling in the subject line of commercial emails and has narrower opt-out guidelines than the Wilson-Green bill.
The differences between the opt-out provisions in the House bills are minor--and may ultimately prove altogether irrelevant.
That's because opt-outs aren't very effective at saving people from the hassle of dealing with loads of unwanted email. Sixty-three percent of "remove me" or "unsubscribe" requests are not honored, according to an April report from the Federal Trade Commission, most often because either the link for unsubscribing is broken or the email address provided is invalid. And a July study by the ePrivacy Group and the Ponemon Institute showed that 37 percent of consumers don't use opt-out even when it is available. They cite uncertainty about whether the opt-out will work, or be honored, and fear that a reply will confirm the validity of their email address to spammers.
The same survey, which was touted by Senator Charles Schumer in a press conference last month, shows 74 percent of consumers support the centerpiece of Schumer's bill, a "Do Not Spam" registry. This element, absent from the House bills, is the second and more important reason why the quarrel in the House may prove irrelevant.
The "Do Not Spam" registry would be modeled on the new and popular, but unproven, "Do Not Call" registry. Schumer said the broad support for the registry showed that "the public has some good wisdom here."
The FTC, however, along with much of the technology industry, opposes the registry proposal. Several officials say they are concerned that a central list of valid email addresses would be vulnerable to abuse by the spammers it was supposed to stop.
Schumer brushed aside the FTC's worries, saying "the FTC now realizes" that the technological and security concerns are minimal. Claudia Bourne Farrell, a spokesman for the FTC, responded that while the commission "considers a 'Do Not Spam' list an intriguing idea" and conceded that "there has been progress in solving some of the technological concerns," she emphasized that the commission still "does not support" Schumer's registry.
Schumer elaborated on the nature of the "Do Not Spam" list he envisions, saying that he "hopes consumers would be able to be specific" about the kinds of spam they don't want. Farrell at the FTC again denied that the commission supported such a list and was even quite skeptical that the kind of personal customization Schumer envisioned was possible.
Another provision unique to Schumer's bill is the creation of an FTC-supervised "self-regulatory organization" charged with maintaining a list of companies whose "good business practices" would exempt them from labeling requirements. Companies that could demonstrate their email was not fraudulent, that their opt-out links worked, and that their solicitations included valid physical addresses would not have to use the ADV label at all.
The Wilson-Green, Burr, and Schumer bills all require unsolicited commercial email to be identified in the subject line, usually with the letters "ADV." Some require additional labeling for spam with adult content.
Many of the 30 states with anti-spam legislation in place require labeling, but only 2 percent of the spam analyzed in one study used the ADV tag in the subject line, suggesting that spammers are not falling over themselves to comply with existing labeling laws.
Microsoft, which would easily qualify for Schumer's exemption from the ADV tag, opposes his bill overall, citing "the dangers of creating and electronically housing a master database of email addresses that may fall into the hands of bulk spammers. Spammers have not been known to act in accordance with the law historically, and would very likely ignore this provision anyway, rendering it largely ineffective."
Schumer's bill was introduced on June 11 to bring the possibility of a "Do Not Spam" registry to Congress's attention, but the senator has also signed onto another bill that is slated for a vote. That bill, the bipartisan CAN-SPAM Act, sponsored by Conrad Burns of Montana and Ron Wyden of Oregon, resembles the Wilson-Green bill, and does not contain a "Do Not Spam" registry. Like all of the bills under consideration, the Burns-Wyden bill prohibits the use of spam mailing lists created by software designed to pull email addresses from publicly accessible websites. It also outlines criminal penalties and fines for illegal spammers. Schumer says he has no intention to block a bill that does not include a "Do Not Spam" registry.
Burns-Wyden's sponsors had hoped to pass anti-spam legislation in the Senate before the August recess. But debate over the registry's inclusion, possibly as an amendment to Burns-Wyden, has delayed the vote until the Senate reconvenes after Labor Day.
Katherine Mangu-Ward is a reporter at The Weekly Standard.