Email Marketers Greet Spam Bill With A Yawn, But Deem It A Noble Effort

by Larry Dobrow, Oct 23, 2003, 12:00 AM

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In the wake of Wednesday's Senate passage of an anti-spam bill, interactive marketers responded with a resounding "so what?" But even the most cynical among them acknowledged the bill is at least a tentative first step in the right direction.

"I'm wishing it would make a difference, I really am, but I don't see much in it beyond symbolic value," said Sean Carton, chief experience officer at Carton Donofrio Partners.

Added EmailLabs chief executive officer Dave Sousa, "Any legislation that will potentially mitigate spam is a good thing, but it's naïve to think that legislation can do it on its own."

To be sure, the Senate bill has its supporters, few more vocal than Trevor Hughes, executive director of the Network Advertising Initiative's Email Service Provider Coalition. "If you're a legitimate business, you finally know the rules of the road," he notes. "The cacophony of 37 states' legislation should be harmonized."

Mostly, however, response was negative, especially in regard to enforceability. The problem, Sousa notes, is that many spammers ply their trade from offshore locations and through spyware on unsuspecting users' computers. "I don't know how you police this," he says. Carton, on the other hand, believes that the bill's increased penalties will not serve as any kind of deterrent. "The dipshit in his basement with a $9.99 CD-ROM of thousands of email addresses - do you think [the legislation] is going to stop him in his tracks?" he scoffs.

Hughes replies, "I think the doubters underestimate the value of a consistent [anti-spam] standard that can be enforced across state boundaries. Don't discount its value just because it's not a single silver bullet."

The Senate bill, which passed with a 97-0 vote, does not serve up anything that hasn't been seen in a host of similar state measures. Among its key provisions: all commercial email must be clearly identified as advertising, contain a physical address and a legitimate opt-out mechanism, and feature a non-misleading subject heading. The bill also gives ISPs and state attorneys general more power to go after spammers, prohibits the harvesting of email addresses, and sets criminal penalties (of up to three years in jail) for spammers who attempt to hide their identity through false headers and other means.

Owing to late efforts by New York Senator Charles Schumer, the bill authorized - not mandated, as some reports erroneously suggested - the FTC to create a federal do-not-spam list, much like the do-not-call telemarketing list set up earlier this year. It is this aspect of the legislation that concerns marketers most, as they will technically no longer be allowed to send email to the people who add their name to the registry, even though these people may already have signed up to receive email from selected companies.

"No legitimate brand is going to send out spam," Carton says. "But legitimate brands are going to be the only ones who are affected."

"I disagree with the premise of the list and I think enforcing it will be darn near impossible," Hughes adds. "Even the FTC itself thinks it's a terrible idea." Indeed, the organization's chairman Timothy Muris, has made it clear on several occasions that he does not support the concept. "If such a list were established, I'd advise customers not to waste their time and effort," he said on August 19 at the Aspen Summit, a technology conference. "Most spam is already so clearly illegitimate that the senders are no more likely to comply with new regulations than with the laws they now ignore."

As for solutions, experts tend to think that anti-spam legislation can only be effective in conjunction with technology and consumer education efforts. "I think you have to eliminate the root of the problem, which is the anonymity of the Internet," Carton says. "Let's say we all had a regulated digital signature. Then, unless an email contained this signature, it would be thrown into a spam folder. That's obviously just a rough idea, but that's the kind of approach it's going to take to get rid of the problem."

Whether or not the Senate vote is significant, several legislative hurdles remain. Before a federal anti-spam law can go into effect, the House of Representatives has to pass a similar measure, and then the two congressional houses have to meet to clear up any discrepancies. The bill would then go to President Bush, whose administration has indicated its support.

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