Moving a few weeks sooner on the matter than first expected, President Bush signed into law the nation's first federal anti-spam legislation – but critics remain unconvinced that the law will do anything substantial to curb spam.
The so-called "CAN-SPAM Act" (it stands for "Controlling the Assault of Non-Solicited Pornography and Marketing Act"), which critics who fault its opt-out feature calling it the "You Can Spam Act," outlaws some forms of spam and sets jail and fines in the multimillions for various violators. But the critics maintain that, because it still allows marketers to send messages to any e-mail address as long as they identify themselves plainly and honor consumer requests to cease after the first such messages are received, the bill isn't much better than window dressing.
Chicago-based First Amendment attorney J.D. Obenberger, however, applauds the aim of CAN-SPAM, especially because spam hurts the adult entertainment industry when enough in the Internet side of the business continues resorting to spam.
"The people who do it in a big way are the worst enemy of the adult Webmaster," Obenberger told AVN.com. "The spammer harms the adult Internet in ways that John Ashcroft himself can't do. He isn't out there polluting the juries, but I think the spammers are getting that result."
Another attorney whose practice includes adult entertainment and First Amendment issues, Lawrence G. Walters, said CAN-SPAM's real effect would be to pre-empt tougher state laws – like California's, which recently took effect – and stop them from being enforced or taking real effect.
“The anti-spam law passed by California had the spammers quaking in their boots since it allowed consumers to file their own suits for damages against senders of illegal spam," Walters told AVN.com. "The federal law only authorizes the government to pursue spammers; a task that on overloaded bureaucracy may quickly push to the bottom of the list."
Bush was originally expected to sign the law in early January 2004. It will also prohibit consumer lawsuits, as some state anti-spam laws now allow, and it will override tougher state laws such as the one California enacted earlier this year – a law that includes the "opt-in" mechanism CAN-SPAM critics say is vital to putting a dent in the spam epidemic.
The White House doesn't quite see it that way. "This will help address the problems associated with the rapid growth and abuse of spam," spokesman Scott McClellan told reporters, "by establishing a framework of technological, administrative, civil and criminal tools and by providing consumers with the options to reduce unwanted e-mail."
Yahoo! also applauded the signing of the law. "This legislation is a victory for consumers and the Internet," the popular Internet portal said in a statement. "It provides businesses with important new legal weapons in the ongoing battle against spam. And it supplements the current technological, educational and legal tools Yahoo! and others are using to fight this threat."
But it isn't just spam-fighting organizations who think CAN SPAM will do more damage than good. Federal Trade Commission chairman Timothy Muris still believes his body would have to prove the spammer or his employer knew, "or consciously avoided knowing, that the third party mailer intended to violate the law."
Late last summer, Muris said CAN-SPAM's requirement of proof of both the seller and spammer's knowledge "pose a serious hurdle that we do not have to meet to obtain an injunction under (the FTC's) current jurisdiction."
California state Sen. Debra Bowen, perhaps the prime mover in getting California's anti-spam law passed and enacted, told CNET.com that CAN-SPAM "doesn't can spam, it gives it the congressional seal of approval." Bowen said advertisers' First Amendment rights don't trump consumers' basic rights to be left alone. "Spam isn't legitimate advertising," Bowen said. "And it's not free speech."
The day before Bush signed CAN-SPAM, Clyde Wayne Crews, technology director for the Cato Institute, a libertarian think tank, warned in a Washington Times article that trying to legislate spam away is wishful thinking, especially if laws like CAN-SPAM do little more than push the spammers offshore. Crews also thinks spam isn't as urgent a cyberspace problem as computer security and hack-and-crack attacks.
"Granted, such misdeeds as peddling shoddy goods, forging the name of a sender, and phony 'unsubscribe' promises should be punished," he wrote. "Abuses like 'dictionary attacks' and spoofing often commandeer unwitting computers and resemble hacking more than commerce. But to a great extent, these are already illegal… (S)pam is not a single dilemma: Kids seeing porn in the inbox is a different problem than ISPs overwhelmed with ricocheting Viagra ads… (t)he industry must coalesce to address cybersecurity and hacking concerns that need remedying perhaps more urgently than spam. Actually solving such problems is a different proposition from passing a law."
Obenberger, a longtime critic of spam adult or otherwise, repeated his earlier assertion that spammers "piss in the well we all drink from." And he said spammers pollute prospective jurors by slamming them with material they didn't ask for in the first place – especially adult material.
"And, as a trial lawyer in the middle of defending an obscenity case, I don't want the jury pool out there polluted," he said. "I think (porn spam) angers and shocks mainstream people, they get those messages involuntarily, and all it takes is just one such incident and I think it's natural, then, for people to feel an antipathy toward erotic material."
CAN-SPAM also calls for the eventual creation of a do-not-spam list, similar to the do-not-call list that came online for telemarketers earlier this year. Walters, however, thinks that a do-not-spam list will prove to be a treasure trove for spammers. "No database is completely secure," he said.
But Walters also addressed the free speech issue, saying CAN-SPAM seems "distinctly content based" for imposing more stringent restrictions on erotic themes in spam than on the mortgage, finance, and "other equally disturbing" spam messages and sales pitches.
"Apparently, the government has made a value judgment and determined that consumers should be forewarned as to the erotic nature of email communications," he said, "but no such warning is required for get rich quick schemes, snake oil supplements, or other arguably more damaging messages.”
