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
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.
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.
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
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 Email 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
Euros a year in connection costs to download spam
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
Avoiding and Restraining Spam
Tips on avoiding spam are available on the Federal Trade Commission’s (FTC’s)
W eb s i t e [ h t t p : / / w w w . f t c.gov/ bcp/ m enu-i nt ernet .ht m ] , and from
[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.
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.
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 “optout” 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 email, while others affect only unsolicited commercial e-mail (spam).
Table 1: Brief Comparison of Pending Spam Legislation
H.R. 1933 (Lofgren)
S. 877 (Burns/Wyden)
S. 1052 (Nelson-FL)
REDUCE Spam Act
CAN SPAM Act
Ban on Deceptive
Unsolicited Bulk Electronic
Definition of Commercial E-Mail
E-mail that is an advertisement or
promotion of commercial product or
service, unless the sender has a personal
relationship with the recipient.
E-mail whose primary
purpose is commercial
advertisement or promotion
of commercial product or
service, with exceptions.
None, though “electronic
mail” is defined as a
message sent to an
electronic mail address.
Definition of Unsolicited Commercial Email (UCE)
Commercial e-mail sent to a recipient
with whom the sender does not have a
pre-existing business relationship in past
5 years, and is not sent at the request of,
or with the express consent of, the
Commercial e-mail sent
without the recipient’s prior
affirmative or implied
consent and that is not a
transactional or relationship
Prohibits false or misleading transmission
information in commercial e-mail
Prohibits false or misleading header
information in UCE
Illegal to falsify or forge
certain header information.
Prohibits deceptive subject headings
Yes, but in UCE only.
Yes, in all commercial email.
Creates “do not e-mail” registry at FTC
Requires specific characters in subject
line of UCE to indicate the message is an
Yes, “ADV:” for advertisement; “ADVADLT:” for adult-oriented
advertisements. Or identification may
comply with standards set by Internet
Engineering Task Force.
No, but message must
provide clear and
that it is an advertisement.
Requires opt-out mechanism
Yes, must contain valid sender-operated
return e-mail address to which recipient
Creates optout mechanism through
do not e-mail
Yes, must contain
functioning return address or
mechanism in UCE to which
the recipient may opt-out.
Yes, must provide recipient
clear and conspicuous
opportunity to request to
H.R. 1933 (Lofgren)
S. 877 (Burns/Wyden)
S. 1052 (Nelson-FL)
Damages or Penalties
Civil penalties to be set by FTC, except
that under private right of action, court
may impose penalties up to $10 per
$10 per violation, up to
$500,000, or $1.5 million
under certain circumstances.
Civil penalties and fines to
be set in accordance with 18
Reward for first person identifying a
violator and supplying information
leading to the collection of a civil penalty
Yes, not less than 20% of the penalty.
Private Right of Action
Yes, person is not liable if the person has
established and implemented, with due
care, reasonable practices and procedures
to prevent violations, and violation
occurred despite good faith efforts to
comply, or if, within 2-days ending upon
the initiation of the transmission that is in
violation, such person initiated the
transmission of such message, or one
substantially similar to it, to less than
1,000 e-mail addresses.
Yes, person is not liable if
the person has established
and implemented, with due
care, reasonable practices
and procedures to prevent
violations, and violation
occurred despite good faith
efforts to comply.
By FTC, except for certain
entities that are regulated by
Violation considered a
predicate offense under
RICO and an unfair or
deceptive practice under
State action allowed
Yes, but must notify FTC or
other appropriated regulator,
which may intervene.
H.R. 1933 (Lofgren)
S. 877 (Burns/Wyden)
S. 1052 (Nelson-FL)
Effect on ISPs
ISPs may bring civil action in U.S.
ISPs may bring civil action
in U.S. district court.
Does not change law regarding when ISP
may disclose customer communications
or records; does not require ISP to block,
transmit, route, relay, handle or store
certain types of e-mail; does not prevent
or limit ISP from adopting a policy
regarding commercial e-mail including
declining to transmit certain commercial
e-mail; and does not render lawful any
such policy that is unlawful under any
other provision of law.
Does not affect the
lawfulness or unlawfulness
under other laws of ISP
policies declining to
transmit, route, relay,
handle, or store certain types
Supersedes state and local laws and
State and local governments may not
impose civil liabilities inconsistent with
Act. The Act does not preempt certain
remedies available under certain other
federal, state, or local laws.
Yes, with exceptions.
Prohibits transmission of unlawful UCE
from improperly harvested e-mail
Prohibits collecting e-mail
addresses from public and
private spaces for the purpose of transmitting UCE.
NA = Not Addressed
RICO = Racketeer Influenced and Corrupt Organizations Act