AITP - The Association Of Information Technology Professionals
The AITP Position on
The Murkowski Unsolicited Commercial E-Mail Act
(1997 - S.771)
Please note that in June, 1998, our policy was amended to endorse The Netizens Protection Act of 1997 (HR1748) by Representative Chris Smith (R-NJ). Additional information on this bill can be found at Fred Elbel's page
AITP Board Endorses Anti-Spam Bill
June 1998
You download your e-mail from your ISP. You have communications from collegues, notes from friends, and your AITP messages. But you also find solicitations for porn sites, recommendations of bulletin board OTC stocks from unknown people, and ideas on how you can make $50,000 in just 3 hours if only you'll send $1 to some post office box in the Grand Caymans.
At its recent meeting in Chicago, the AITP Board endorsed the Netizens Protection Act of 1997 (HR 1748). AITP believes that unsolicited commercial e-mail, variously referred to as spam or UCE, continues to be a problem on the internet. It drives up the costs to providers and to users while detracting from the value of the medium. Some of those costs were described in FTC hearings last year. Others were laid out in recent discussions on the usenet news group news.admin.net-abuse.email. AOL estimated, in its FTC testimony, that as much as 1/3 of the mail its subscribers receive is spam. In other terms, that means that the cost of 6 out of 20 of its e-mail servers (as of last fall) was directly related to handling spam. The cost of those six servers was of course passed on to their subscribers. Similarly, every responsible Internet Service Provider (ISP) has staff assigned solely to responding to complaints about spam. ISPs who fail to respond quickly to complaints run the risk of being ostracized by the rest of the internet community, and therefor can not avoid that cost. End users who get tired of the spam may upgrade to a
more expensive e-mail client package, just for the powerful spam filters.
And there are other social costs. Parents may keep their children off the internet just to shield them from porn spam, but that also limits their children's ability to do their own school-related research. Professionals with the answers to technical questions may avoid posting those answers to news groups because they know that spammers mine addresses there.
But what are the solutions? Those who are technically proficient can block most spam. Through the filtering capabilities of my e-mail client, I estimate that I only see about 5% of the spam which actually reaches my computer. Yet until it is downloaded and deleted, it sits on my ISP's server, waiting for me to call in. If I lived in an area where local
phone calls were metered, or where I had to make a toll call to retrieve my mail, those costs remain, regardless of whether I see the spam or not. Those costs get passed to me, and other subscribers to my internet service.
Clearly, spam needs to be controlled. But it must be controlled in a way that does not drastically increase the costs of those who are not responsible for the spam, the people who receive it, and the ISPs who are forced to pass it along on their servers. The costs of spam should be borne by the generators of spam. The Netizens Protection Act of 1997 (HR 1748), sponsored by Representative Smith (R-NJ), broadens the existing Telemarketing Consumer Protection Act (TCPA) as it relates to unsolicited fax transmissions to cover unsolicited commercial e-mail. HR1748 fits our requirements. Because of this, we urge that HR1748 be enacted into law, or that its pertinent provisions be attached to other legislation and enacted into law. We do not support legislation which seeks to legitimize spam, or pass the costs to the end user or ISP.
The following resolution was passed in 1997
Resolved, that AITP opposes S.771 "Unsolicited Commercial
Electronic Mail Choice Act of 1997" by Senator Murkowski.
In furtherance of that resolution, the board authorizes the
following actions by the Electronic Communications
Committee:
To issue a press release in cooperation with the national office
stating our position and reasons to appropriate technology media.
To contact members of the appropriate committees, and to
provide testimony if invited.
To enter into appropriate coalitions with other
organizations working on this measure.
To prepare for publication in Information Executive an
appropriate article detailing the bill, the background
issues, and our position on them.
Background
The text of the entire bill can be viewed at Thomas. S771 was introduced on 5-21-97 by Sen Murkowski (R-Alaska) and referred to the Senate Commerce Committee. It has not yet been calendared for hearings. Mr Smith introduced his bill HR1748 one day later. That's in House Commerce, and also has no hearings set. Senator Murkowski's bill has attracted one co-sponsor, Senator Faircloth of North Carolina, as of June 9. Rep Smith's bill has no co-sponsors.
Spam is the internet term used to describe unsolicited commercial advertising, sent to internet users via e-mail or usenet postings. An example is posted below. The origin of the term as it pertains to the internet probably date back to a famous Monty Python diner sketch. Spam originally was a Hormel processed meat product of questionable nutritional value, ingredients, and taste, and the subject of the skit in question.
In the very recent past, there has been a proliferation of
unsolicited e-mail from commercial advertisers who have realized
that it is just as cheap to mail an unsolicited ad to 10,000
people as it is to send to 100 people. This means they do
not need to carefully target the mail to the same extent
that the usual advertiser does when making use of the USPS, who has
to pay some amount of money for each piece of mail distributed
and therefor have a financial incentive for more carefully
targeting their solicitations.
This spam, if unchecked, creates several technical and sociological
problems:
. the sheer volumes can cause some networks to overload.
At the least, network administrators are expending funds
processing and storing undesirable traffic.
. useful mail is being lost in the plethora of junk
mail.
. some people are still paying by the minute or hour
for internet access. The time spent to download junk mail
is being paid for by the recipient. This involuntary
conversion of receiver resources is the main reason that
the anti-fax legislation was held to be constitutional.
. time spent downloading, reading, deleting, or building
filters for this mail on corporate and other systems takes
time away from productive work.
. because most spam seems to originate or pass through
one bulk mailer (Cyberpromo), filters can be built which
easily defeat the spammers, if the routing information
on the spam is accurate. Therefor, spammers have been
known to disguise where the mail originates. As an example,
one mortgage company on the east coast disguised its spam
as coming from localhost.com, a very small ISP in Boulder,
Colorado. Given the community's antipathy towards spam
and spammers, this forgery has caused a loss of professional
reputation for the small ISP.
So what does S771 propose to do to correct this problem?
This bill contains operational requirements for ISP's and
places enforcement responsibility at the feet of the ISP.
For the first time (to my knowledge), we will have a
governmental agency dictating, as a matter of law, that each
and every ISP MUST do THIS by such and so a date and THAT by
that and so a date, must create and retain records of its
actions, and must, when called upon, defend its actions and
practices in an adversarial proceeding against an authority
with the power to put them out of business. Currently, there
are no such requirements, and if this is enacted I greatly
fear that every consumer protection organization looking for
something to do will find *something* about the Internet
that just cries out for regulation.
It proposes to regulate speech on the internet on the
basis of content, by requiring that any advertisement on the
internet start with the word 'advertisement' in the header,
and provides government sanctions for failure to comply. The
CDA also sought to impose content-based regulations on
internet speech, and so far has been ruled unconstitutional
in the courts (Supreme Court current status - ruling will be handed down before the end of June)
It requires the ISP to provide a filtering mechanism to
customers to block advertisements. However, we also believe
that the current filtering capabilities will be judged
largely inadequate by the regulators. When the government
says that ISP's must offer a filtering capability, they do
not mean instructions on where to get a downloadable piece
of software, how to install it, how to configure it to fit
your particular ppp connection and mail reader combination,
and so forth. The government means a filtering capability
that requires nothing more than a check box to click "on" or
"off". Period. Oh, by the way, who will judge whether this
software meets the needs of the law? A software review
committee? Uh oh, more government. Who is responsible for
upgrading it when the mailers discover a way to beat it?
Hmmm, the ISP again?
Make no mistake, this is only the camel's nose in the tent.
There are groups out there with slavering jaws just waiting
for the chance, for example, to regulate Usenet content. How
long would it be before Usenet postings will have to carry
"family" or "offensive to some people" in their subject
lines? Web site content. Wow!! "I find this Web page
offensive, so you have to take it off AND pay me $100,000
damages".
And finally, it places enforcement authority in the hands
of the FTC, which has virtually no experience with electronic
communications. Their ability to investigate complaints
and bring enforcement proceedings is virtually nil. Serious
enforcement powers would more effectively be placed in the
hands of the FCC.
So what can be done to address the problem without massive
and unwarranted government intervention?
ISPs are currently developing and testing mechanisms for the
voluntary blocking of spam. Government can and should,
through legislative action, exempt cooperative efforts in
this area from existing anti-trust laws, and provide that
cooperative blocking of spam can not be construed as conspiracy
in restraint of trade. ISPs offering effective filters can
and will advertise that service as an inducement to prospective
new customers, and they will be viewed as a major marketing
asset.
Existing laws related to trademark infringement, commercial
fraud, etc can and will be used to block legitimate domain
names from being used by spammers to disguise routing. AOL
obtained an injunction against Cyberpromo on exactly those
grounds in their case (apparently Concentric and Earthlink
have also, though I have no details). Localhost.com is
bringing and will almost certainly win a deceitful business
practices case over the theft of its name/trademark by
Greentree (see lawsuit
for details). In addition, various technical mechanisms
for filtering spam either are currently available, or are
in the final stages of development.
Alternatively, we may in the future want to support a bill, HR1748,
introduced by Chris Smith (R-NJ) which extends the coverage
of the existing junk fax law to cover junk e-mails. This
bill has been endorsed by a number of spam fighting
organizations which have rejected the Murkowski bill as
being too onerous. It totally removes common carrier (ISP)
liability for the transmission, or providing mandatory
filtering mechanisms, and carries no ISP requirements for
assisting with enforcement. It seems that the junk fax law
has worked as intended without massive government intervention.
Since junk e-mail which provides no mechanism for the recipient
to reach the sender is commercially worthless, I suspect
that enforcement would be easier. However, it still would extend federal regulatory authority into an area where it doesn't currently exist. It may also be more than is necessary to fight the ill it attempts to address. Based on discussions over the past few days, we're not prepared to either support or oppose Smith without additional significant discussion and debate, as well as possible amendments.
More details on what's wrong with the Murkowski bill, and
other more appropriate and effective ways to fight spam,
can be found here.
The text of the Smith bill is also there.
A small example of the spam which has spurred this discussion:
[start example]
Return-Path:
From: lvck1@hotmail.com
To: lvck1@hotmail.com
Date: Sat, 21 Jun 97 18:57:47 EST
Subject: adults only
Reply-To: lvck1@hotmail.com
X-PMFLAGS: 128 0.
Comments: Authenticated sender is
TRY US OUT FOR FREE!!!
See and talk to a live person on your computer screen.
Not a video! Not prerecorded! This is live!!
Our models will obay your every cummand, we're willing to prove it by
giving you a free 5 minute preview.
Give it a try, its free.
- CLICK HERE
[end example]