• by Larry Dobrow , November 14, 2003

With spam having replaced telemarketing as the hot-button issue among politicians and advertising wonks alike, a cottage industry of sorts has quickly formed around it: the so-called "Spam Summit," where interested parties congregate in New York City to affirm that spam is both really, really bad and really, really annoying. Yet following the recent passage of California's rigid and ill-advised anti-spam law and the Senate's CAN-SPAM Act of 2003, the discussions have taken on a greater air of urgency than those held only months ago.

Such was the mood during an afternoon panel discussion at Thursday's PROfile Email Summit, coordinated by Bigfoot Interactive. The panel, which boasted a handful of legislative heavy-hitters, sought to explain the implications of state and federal anti-spam laws to the 100-odd attendees. The unanimous conclusion among the panelists: if the House of Representatives doesn't pass its own anti-spam measure before leaving town for the holidays on November 21 - which would enable President Bush to approve a federal anti-spam law before the end of the year, which would in turn preempt the amalgam of state laws - look out.

Emily Hackett, state policy director of The Internet Alliance (which counts Comcast, eBay, IBM and Time Warner among its members), described California's anti-spam law as "the worst bill possible in the worst state possible." While she doubts the law will withstand legal challenges, her recital of its provisions and their implications left attendees agape. Among the entities she believes will violate the new law are opt-in newsletters that contain even an iota of advertising (them's fightin' words to Mr. I Want Media and his ilk). Factor in California's low threshold for class actions, and it's not unreasonable to expect the lawsuits to start flowing at 12:01 a.m. on Jan. 1, when the law will go into effect barring federal preemption.

"It's the messiest process I've seen in three decades of politics," she quipped.

As for advice to attendees not exactly thrilled by the prospect of having to overhaul their legitimate La-La Land practices, Hackett suggested they try to obtain as much direct consent as possible from consumers with whom they've already established a relationship, document all their practices religiously ("be transparent"), and refrain from sending email advertisements to their employees without consent. Of course, she noted one sure-fire way that savvy e-marketers could avoid the state's wrath: "Don't send anything to California and see how they like it."

Before launching into his discussion of federal anti-spam legislation, the Direct Marketing Association's senior vice president of government affairs Jerry Cerasale warned attendees who might be unhappy in their jobs not to email their resumes to California companies: "[You would] be violating the law - [you would] be marketing yourself." He then noted, to the relief of most in the room, which proposed federal anti-spam provisions are considerably saner.

Cerasale spelled out a handful of differences between the Senate bill and the ones currently before the House. Under the former, legitimate marketers accused of spamming would have an affirmative defense: if they follow "good practices," they won't be held responsible for damages (in other words, they can duck responsibility for honest-to-goodness mistakes). Under the two House bills being considered, however, good practices can only reduce damages.

While Cerasale and the DMA are pushing hard for a federal anti-SPAM law, he cautioned that the proposals on the table are far from flawless. He noted that under the Constitution, any restriction of commercial speech must be narrowly tailored to a specific goal - but scoffed at the notion that a nationwide "Do Not Spam" registry fits the bill. (CAN-SPAM authorized, not mandated, the Federal Trade Commission to create a federal do-not-spam list). "It won't diminish spam and it will restrict legitimate speech by marketers," he said.

Similarly, Brian Huseman, an FTC attorney who served as lead counsel in the organization's first spam case, expressed concerns about the enforceability of the laws and the lack of rule-making authority meted out to the FTC. "No federal legislation alone is going to solve the problem," he stated flatly, suggesting that the ultimate answer to the spam dilemma will likely involve some combination of legislation, technology, and consumer action.

And what of the consumers, whose righteous indignation about spam-filled e-mailboxes spurred politicians into action in the first place? When panel moderator Al DiGuido, Bigfoot Interactive's chief executive officer, suggested that their expectations about the efficacy of anti-spam laws might be too high, the four panelists almost wrenched their necks nodding in agreement. "There is no perfect bill that is the magic pill that will solve the problem," said Prabhat Hajela, a science and technology fellow in the Office of Sen. Conrad Burns.

As for the likelihood that a federal anti-spam bill will find its way into law by the end of the year, no panelist was willing to commit to a prediction. "I can only hope," Hajela said. "The story changes every day," Huseman added. "It's 50-50," Cerasale shrugged, although he noted that President Bush would likely sign either of the House proposals. Hackett, for her part, brought up a fairly amazing statistic: the only other bill that breezed through the Senate faster than CAN-SPAM was the declaration of war after the attack on Pearl Harbor. "Don't expect rational behavior," she warned.