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"It's the biggest turkey the President will see all week and he should stuff it the moment it lands on his desk." That's how California State Senator Debra Bowen (D-Redondo Beach) described the anti-spam bill which cleared the U.S. Senate floor Tuesday.
Bowen authored California's 1998 anti-spam law and this year, she introduced SB 12 to repeal California's "opt-out" statute and replace it with the nation's first "opt-in" law to require e-mail advertisers and marketers to get people's permission before sending them unsolicited commercial advertisements.
Instead, the law, which the House is expected to pass unanimously the second week in December, allows unsolicited commercial e-mail as long as the headers aren't misleading and there's a clear opt-out mechanism.
The party line is that anti-spam legislation doesn't affect legitimate marketers. At the same time, they're happy to comply with it. But they want one law that covers the nation, rather than a multitude of state or local laws. With the Senate's formal approval of House revisions to its Can Spam Act, marketers are close to getting their wish.
The federal legislation will pre-empt the patchwork of 37 state laws that make compliance difficult and often contradictory, said Helen Roberts, COO of e-mail marketing vendor Responsys. She said her company supports the right of anyone not to receive unsolicited email. "At the same time, we hope this legislation is implemented in a way that consumers will understand, and in a way that makes compliance possible for legitimate email marketers." She said that consumers may not realize, for example, that the Do-Not-E-Mail Registry, one of the law's provisions, wouldn't stop e-mail to opt-in lists.
E-mail list manager OptInBig found that the federal legislation is good for business. "Our January bookings skyrocketed after the passage of the Can Spam Act," said CEO Scott Richter, because its marketer clients no longer have to worry about California's strict law, which Federal law would supersede. One of the largest e-mail senders in the U.S., the company says it has over half of the 100 million unique e-mail addresses in North America in its database. "We're very happy that we now have one law instead of 37 individual state laws to deal with," Richter said. "We try to be in compliance with all of them, but some of them were so farfetched and changing so fast, it was hard to keep up."
A spokesperson for Roving Software, maker of e-mail marketing apps, agreed that while legislation is not the final answer, a federal policy is preferable to a plethora of contradictory state initiatives.
In fact, legitimate marketers weren't worried about state laws -- until California's, according to Kenneth Hirschman, VP and general counsel for e-mail service provider Digital Impact. "Our clients don't send unsolicited commercial e-mail, so they never had to worry about government action," he said. "What got everyone scared was California's private right of action." With the penalty at $1,000 per instance, marketers worried that individuals would file frivolous suits on the off chance that a company would settle on the spot. "While our clients could prove they weren't sending unsolicited commercial e-mail," Hirschman said, "it would be prohibitively expensive to have to prove it every night."
Legislation was never at the top of e-mail marketers' worry list. In a recent Webinar poll conducted by Jupiter Research, a division of this publication's parent company, only 8 percent of the e-mail marketers surveyed called anti-spam legislation their number one concern. Topping their list instead were blacklists and spam filters implemented by ISPs and corporate IT departments; 31 percent of those surveyed saw these as the biggest concern, while 22 percent put bounces and e-mail address changes as their biggest e-mail delivery issues.
But consumers are another story. According to a recent poll conducted for enterprise content filtering vendor SurfControl, 86 percent of employees supported the Burns/Wyden legislation to outlaw spam with misleading header information. Consumers who hope the Can Spam Act will actually make a difference in the flow of spam to their inboxes will get coal in their stockings instead. Legislation might be somewhat of a deterrent but it won't dike the flow. " This law is one of three things we need to do as society," said Susan Getgood, senior VP for SurfControl. She said people need to be educated about how to avoid exposing their e-mail addresses and technology to stop spam from reaching individuals needs to keep developing. "We have to keep remembering that no one thing is going to stop it," she said.
It's an arms race that has no end, according to Lance Cottrell, founder and president of Anonymizer, a vendor of personal privacy services and software. The law won't have much effect, he believes, except for making it more complicated to run an Internet business. "Spam solutions don't work as well as you would like them to," he said. "But because it's so easy to evade U.S. legislation, I don't think there's any choice but to use these technologies."
"This federal legislation is great," Responsys' Roberts said, "yet there's no silver bullet here. There's no silver bullet, period."