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WASHINGTON -- U.S. Rep. Billy Tauzin's (R.-La.) late May prediction that anti-spam legislation would pass Congress this year is beginning to look remote as differences over the ability of individuals to sue spammers, caps on damages and definitions of what actually constitutes spam continue to divide lawmakers.
The Senate Commerce Committee passed the Can Spam Act on July 16, but no floor vote has been scheduled. Competing legislation has slowed any action in the House and with both chambers still targeting an Oct. 3 adjournment date for the first session of the 108th Congress, it appears a legislative solution is not in the offing for 2003.
Sponsored by Senators Conrad Burns (R.-Mont.) and Ron Wyden (D.-Ore.), the Can Spam Act requires commercial e-mailers to provide recipients with an opt-out mechanism, and prohibits deceptive subject headings and false or misleading transmission information. The bill also requires unsolicited commercial e-mail messages to be labeled, though not necessarily by a standard method such as ADV for advertising.
The legislation 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.
Even if the Senate passes the legislation in the next two weeks, the House is still sharply divided and legislative sources told internetnews.com Monday the differences are not narrowing.
Tauzin, chairman of the House Energy and Commerce Committee, and Rep. James Sensenbrenner (R.Wisc.), chairman of the House Judiciary Committee, favor a bill introduced by Rep. Richard Burr (R.-N.C.), the Reduction in Distribution of Spam Act of 2003 (Rid Spam Act), which 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.
Competing with the Rid Spam Act is legislation backed by Reps. Heather Wilson (R.-N.M.) and Gene Green (D.-Tex.). The Anti-Spam Act of 2003 broadens the definition of spam to require a wider range of commercial e-mail to contain an opt-out provision and allows individual consumers to sue spammers. The bill has 56 fellow co-sponsors, including a majority of the members of the House Energy and Commerce Committee.
According to sources close to both the Energy and Commerce Committee and the Judiciary Committee, a compromise bill was floated on Sept. 10 by supporters of the Rid Spam Act. The compromise called for a broader definition of spam but still prohibited any private right of action for consumers.
"Once we heard they were circulating compromise language, we called over there and asked to have a meeting," said a supporter of the Wilson-Green bill. "They still haven't responded. The issue continues to be private right of action for consumers."
A source close to Tauzin says the chairman is unwilling to compromise on the issue of private rights of action and class action suits.
"It is simply not going to happen. We thought we could get a bill passed this year but if they (Wilson-Green) insist on private right of action, it will be a deal breaker," the source told internetnetnews.com.