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In the letter, the American Association of Advertising Agencies (AAAA), the Association of National Advertisers (ANA) and the Direct Marketing Association (DMA) urged Congress to pass the Can Spam Act (S. 877) or the Reduction in Distribution of Spam Act (H.R. 2215) to "avert a crisis that will bring legitimate electronic commerce to a screeching halt." The letter was published Thursday in the Roll Call newspaper.
The letter cites the proliferation of inconsistent state laws and said the groups believe the recently passed California spam law, to take effect January 1, 2004, would make advertising-supported e-mail newsletters illegal. The organizations also said that frivolous lawsuits would proliferate if federal legislation isn't passed and that legitimate commercial e-mail would be severely impacted, because "e-mail cannot be tailored to avoid state boundaries."
"Our members represent virtually every business segment in the United States," the letter reads. "We urge you to pass legislation that will clearly distinguish acceptable commercial e-mail from unlawful spam and impose stiff criminal penalties on those who fall on the wrong side of the law."
The Can Spam Act defines spam as an "unsolicited commercial electronic message" that is not a "transactional or relationship" message and is sent to the recipient without prior affirmative or implied consent. While providing for no private right of action by recipients of spam, it does allow Internet service providers (ISPs) adversely affected by a violation of the law to bring a civil action and sets a maximum civil penalty of $1.5 million for knowing and willful violations of the law.
Rid Spam requires certain commercial e-mail senders to include an opt-out provision and the sender's physical address. It prohibits the use of false and misleading headers and, while requiring commercial e-mail to be labeled, it does not mandate a naming scheme. It does, however, require unsolicited sexually explicit e-mail to be labeled with appropriate subject line tag to be determined by the Federal Trade Commission. The legislation does not provide for private rights of action by consumers, and it expressly forbids class action suits. It also places caps on the damages that may be sought.