"Junk E-mail": An Overview of Issues and Legislation Concerning Unsolicited Commercial Electronic Mail ("Spam")

"Junk E-mail": An Overview of Issues and Legislation Concerning Unsolicited Commercial Electronic Mail ("Spam")

Order Code RS20037
Updated May 15, 2003
CRS Report for Congress
Received through the CRS Web
“Junk E-mail”: An Overview of Issues and
Legislation Concerning Unsolicited
Commercial Electronic Mail (“Spam”)
Marcia S. Smith
Specialist in Aerospace and Telecommunications Policy
Resources, Science, and Industry Division
Summary
Unsolicited commercial e-mail (UCE), also called “spam” or “junk e-mail,”
aggravates many computer users. Not only can spam be a nuisance, but its cost may be
passed on to consumers through higher charges from Internet service providers who
must upgrade their systems to handle the traffic. Proponents of spam insist it is a
legitimate marketing technique and protected by the First Amendment. While 27 states
have anti-spam laws, there is no federal law. Four bills are pending in the 108th
Congress: H.R. 1933, S. 563, S. 877, and S. 1052. (Spam on wireless devices such as
cell phones is discussed in CRS Report RL31636.) This report will be updated.
Overview
One aspect of increased use of the Internet for electronic mail (e-mail) has been the
advent of unsolicited advertising, also called “unsolicited commercial e-mail (UCE),”
“unsolicited bulk e-mail,” “junk e-mail, “or “spam.”1 Consumer complaints focus on the
fact that some spam contains or has links to pornography, and about the steadily
increasing volume of spam. According to Brightmail [http://www.brightmail.com], a
company that sells anti-spam software, the volume of spam rose from 8% of all e-mail in
January 2001 to 45% in January 2003. Some project that spam will reach or exceed 50%
of all e-mail by 2004.
1 The origin of the term spam for unsolicited commercial e-mail was recounted in
Computerworld, April 5, 1999, p. 70: “It all started in early Internet chat rooms and interactive
fantasy games where someone repeating the same sentence or comment was said to be making
a ‘spam.’ The term referred to a Monty Python’s Flying Circus scene in which actors keep saying
‘Spam, Spam, Spam and Spam’ when reading options from a menu.”
Congressional Research Service ˜ The Library of Congress

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Opponents of junk e-mail argue that not only is it annoying and an invasion of
privacy (see CRS Report RL31408 for more on Internet privacy), but that its cost is borne
by consumers and Internet Service Providers (ISPs), not the marketers. Consumers
reportedly are charged higher fees by ISPs that must invest resources to upgrade
equipment to manage the high volume of e-mail, deal with customer complaints, and
mount legal challenges to junk e-mailers. Businesses may incur costs due to lost
productivity, or investing in upgraded equipment or anti-spam software. The Ferris
Research Group [http://www.ferris.com], which offers consulting services on managing
spam, estimates that spam will cost U.S. organizations over $10 billion in 2003.
Proponents of UCE argue that it is a valid method of advertising, and is protected by
the First Amendment. The Direct Marketing Association (DMA) argued for several years
that instead of banning UCE, individuals should be given the opportunity to “opt-out” by
notifying the sender that they want to be removed from the mailing list. Hoping to
demonstrate that self regulation could work, in January 2000, the DMA launched the E-
mail Preference Service where consumers who wish to opt-out can register themselves at
a DMA Web site [http://www.e-mps.org]. DMA members sending UCE must check
their lists of recipients and delete those who have opted out. Critics argued that most
spam does not come from DMA members, so the plan is insufficient, and on October 20,
2002, the DMA agreed. Concerned that the volume of unwanted spam was undermining
the use of e-mail as a marketing tool, the DMA announced that it now would pursue
legislation to battle the rising volume of spam.
One challenge of controlling spam is that much of it originates outside the United
States and thus is not subject to U.S. laws or regulations. Spam is a global problem, and
the European Commission estimates that Internet subscribers globally pay 10 billion
E u r o s a y e a r i n c o n n e c t i o n c o s t s t o d o w n l o a d s p a m
[http://europa.eu.int/comm/internal_market/privacy/studies/spam_en.htm]. Several
European countries have anti-spam laws. The FTC and other U.S. and foreign agencies
have called on organizations in 59 countries to close “open relays” that allow spam to be
routed through third-party computers, permitting spammers to avoid detection
[http://www.ftc.gov/opa/2003/05/swnetforce.htm].
Avoiding and Restraining Spam
Tips on avoiding spam are available on the Federal Trade Commission’s (FTC’s)
W e b s i t e [ h t t p : / / w w w . f t c . go v / b c p / m e n u - i n t e r n e t . h t m ] , a n d f r o m
[http://home.cnet.com/internet/0-3793-8-5181225-1.html], a non-government site.
Consumers may file a complaint about spam with the FTC by visiting the FTC Web site
[http://www.ftc.gov] and scrolling down to “complaint form” at the bottom of the page.
The offending spam also may be forwarded to the FTC (UCE@ftc.gov) to assist the FTC
in monitoring UCE trends and developments.
To date, the objective of restraining junk e-mail has been fought primarily over the
Internet or in the courts. Some Internet service providers (ISPs) will return junk e-mail to
its origin, and groups opposed to junk e-mail will send blasts of e-mail to a mass e-mail
company, disrupting the company’s computer systems. America OnLine, Earthlink, and
Microsoft Network all have brought lawsuits under existing laws to stop spammers.

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Another approach is to enact specific anti-spam legislation. As discussed below,
more than half the states already have enacted spam laws, though no federal legislation
has passed yet. An oft-discussed approach is requiring senders of UCE to provide a
legitimate opportunity for recipients to “opt-out” of receiving additional messages.
Others want to prevent bulk e-mailers from sending messages to anyone with whom they
do not have an established business relationship, treating junk e-mail the same way as
junk fax (see CRS Report RL30763 for information on the law pertaining to junk fax).
Another approach is creating a “do not e-mail” list similar to the “do not call” list for
telemarketers, under which individuals can place their names on a list to opt-out of
receiving UCE. Another possibility is requiring that senders of UCE use a label such as
“ADV” in the subject line of the message so the recipient will know before opening an
e-mail message that it is an advertisement.
Others argue that legislation cannot stop spam because so much of spam originates
overseas, or because legislation includes so many “loopholes” that it is ineffective. The
fact that spam is rising despite the growing number of state laws suggests that legislation
is not a sure solution. One proposed alternative is trying to make spam less attractive
economically by increasing the cost of sending spam, perhaps by establishing systems
whereby recipients could charge spammers “postage” for UCE. Others believe the issue
should be left to the ISPs to resolve since they have the incentive to do so.
State Action
According to the SpamLaws Web site [http://www.spamlaws.com], 27 states have
passed laws regulating spam: Arkansas, California, Colorado, Connecticut, Delaware,
Idaho, Illinois, Iowa, Kansas, Louisiana, Maryland, Minnesota, Missouri, Nevada, North
Carolina, Oklahoma, Ohio, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah,
Virginia, Washington, West Virginia, Wisconsin, and Wyoming. The specifics of each
law varies. Summaries of and links to each law are provided on that Web site.
Congressional Action: 105th-107th Congresses
In the 105th Congress, the House and Senate each passed legislation (H.R. 3888, and
S. 1618), but no bill ultimately cleared Congress. In the 106th Congress, several UCE bills
were introduced. One, H.R. 3113 Wilson), passed the House. There was no further
action. Several spam bills were introduced in the 107th Congress, but none passed. One,
H.R. 718 (Wilson), was reported from the House Energy and Commerce Committee
(H.Rept. 107-41, Part I), and the House Judiciary Committee (H.Rept. 107-41, Part II).
The two versions were substantially different. A Senate bill, S. 630 (Burns), was reported
(S.Rept. 107-318) from the Senate Commerce Committee. There was no further action.
Congressional Action: 108th Congress
Four bills are currently pending. Three (H.R. 1933, S. 877, and S. 1052) are “opt-
out” bills, while the fourth ( S. 563) is a “do not call” bill. The provisions of these bills
are summarized in the following table. Some of the provisions affect all commercial e-
mail, while others affect only unsolicited commercial e-mail (spam).

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Table 1: Brief Comparison of Pending Spam Legislation
Provision
H.R. 1933 (Lofgren)
S. 563
S. 877 (Burns/Wyden)
S. 1052 (Nelson-FL)
(Dayton)
Title
REDUCE Spam Act
Computer
CAN SPAM Act
Ban on Deceptive
Owners Bill
Unsolicited Bulk Electronic
of Rights
Mail Act
Definition of Commercial E-Mail
E-mail that is an advertisement or
None
E-mail whose primary
None, though “electronic
promotion of commercial product or
purpose is commercial
mail” is defined as a
service, unless the sender has a personal
advertisement or promotion
message sent to an
relationship with the recipient.
of commercial product or
electronic mail address.
service, with exceptions.
Definition of Unsolicited Commercial E-
Commercial e-mail sent to a recipient
None
Commercial e-mail sent
None
mail (UCE)
with whom the sender does not have a
without the recipient’s prior
pre-existing business relationship in past
affirmative or implied
5 years, and is not sent at the request of,
consent and that is not a
or with the express consent of, the
transactional or relationship
recipient.
message.
Prohibits false or misleading transmission
No
No
Yes
No
information in commercial e-mail
Prohibits false or misleading header
Yes
No
Yes
Illegal to falsify or forge
information in UCE
certain header information.
Prohibits deceptive subject headings
Yes, but in UCE only.
No
Yes, in all commercial e-
No
mail.
Creates “do not e-mail” registry at FTC
No
Yes
No
No
Requires specific characters in subject
Yes, “ADV:” for advertisement; “ADV-
No
No, but message must
No
line of UCE to indicate the message is an
ADLT:” for adult-oriented
provide clear and
advertisement
advertisements. Or identification may
conspicuous identification
comply with standards set by Internet
that it is an advertisement.
Engineering Task Force.
Requires opt-out mechanism
Yes, must contain valid sender-operated
Creates opt-
Yes, must contain
Yes, must provide recipient
return e-mail address to which recipient
out mechan-
functioning return address or
clear and conspicuous
may opt-out.
ism through
other Internet-based
opportunity to request to
do not e-mail
mechanism in UCE to which
opt-out.
registry.
the recipient may opt-out.

CRS-5
Provision
H.R. 1933 (Lofgren)
S. 563
S. 877 (Burns/Wyden)
S. 1052 (Nelson-FL)
(Dayton)
Damages or Penalties
Civil penalties to be set by FTC, except
Up to
$10 per violation, up to
Civil penalties and fines to
that under private right of action, court
$10,000 per
$500,000, or $1.5 million
be set in accordance with 18
may impose penalties up to $10 per
violation
under certain circumstances.
U.S.C.
violation.
Reward for first person identifying a
Yes, not less than 20% of the penalty.
No
No
No
violator and supplying information
leading to the collection of a civil penalty
Private Right of Action
Yes
No
No
No
Affirmative Defense
Yes, person is not liable if the person has
NA
Yes, person is not liable if
NA
established and implemented, with due
the person has established
care, reasonable practices and procedures
and implemented, with due
to prevent violations, and violation
care, reasonable practices
occurred despite good faith efforts to
and procedures to prevent
comply, or if, within 2-days ending upon
violations, and violation
the initiation of the transmission that is in
occurred despite good faith
violation, such person initiated the
efforts to comply.
transmission of such message, or one
substantially similar to it, to less than
1,000 e-mail addresses.
Enforcement
By FTC
By FTC
By FTC, except for certain
Violation considered a
entities that are regulated by
predicate offense under
other agencies.
RICO and an unfair or
deceptive practice under
FTC Act.
State action allowed
NA
NA
Yes, but must notify FTC or
NA
other appropriated regulator,
which may intervene.

CRS-6
Provision
H.R. 1933 (Lofgren)
S. 563
S. 877 (Burns/Wyden)
S. 1052 (Nelson-FL)
(Dayton)
Effect on ISPs
ISPs may bring civil action in U.S.
NA
ISPs may bring civil action
NA
district court.
in U.S. district court.
Does not change law regarding when ISP
Does not affect the
may disclose customer communications
lawfulness or unlawfulness
or records; does not require ISP to block,
under other laws of ISP
transmit, route, relay, handle or store
policies declining to
certain types of e-mail; does not prevent
transmit, route, relay,
or limit ISP from adopting a policy
handle, or store certain types
regarding commercial e-mail including
of e-mail.
declining to transmit certain commercial
e-mail; and does not render lawful any
such policy that is unlawful under any
other provision of law.
Supersedes state and local laws and
State and local governments may not
NA
Yes, with exceptions.
NA
regulations
impose civil liabilities inconsistent with
Act. The Act does not preempt certain
remedies available under certain other
federal, state, or local laws.
Prohibits transmission of unlawful UCE
No
NA
Yes
Prohibits collecting e-mail
from improperly harvested e-mail
addresses from public and
addresses
private spaces for the pur-
pose of transmitting UCE.
NA = Not Addressed
RICO = Racketeer Influenced and Corrupt Organizations Act