Hearing on Spam (Unsolicited Commercial E-Mail)

May 21, 2003 Wednesday

HEADLINE: HEARING OF THE SENATE COMMERCE, SCIENCE AND TRANSPORTATION COMMITTEE
 
SUBJECT: HEARING ON SPAM (UNSOLICITED COMMERCIAL E-MAIL)
 

SEN. MARIA CANTWELL (D-WA): Thank you, Mr. Chairman. I know that this committee and my colleagues here today, have spent a great deal of time working on this issue, as the FTC has, I'm trying to enforce crack down on individuals and I'm anxious to hear from our second panel as well, because I think we're going to hear some interesting comments from them because I think the industry is being very much impacted by this as well.

There are people who very much count on having a relationship with online consumers and that relationship is being damaged by the perpetrators of spam, so I think everybody is interested in moving forward.

Why not focus more narrowly on one particular aspect of this issue, which is harvesting. I know my colleagues here have language in their legislation, but why not as a first step, something that we can all have consensus on and we know that there are perpetrators of spam either auto generated by computers or people who are actually harvesting names that are available online from various websites, why not crack down on that right away and keep focus on the anti- harvesters as a key component.

MR. SWINDLE: Senator, I personally think the clandestine capturing of e-mail addresses and then turning around and using them is an abominable act. It is commonplace, we all know that, and perhaps we need to look at it in terms of saying you can't do this. But, again, we get back to how do we enforce it, how do we find those who do it, because from a technology standpoint it's fairly well concealable. But, again, it's just one small element of this whole problem that we need to keep working and need to be getting industry to step up and tell us, number one, how to solve the problem with technology and, number two, we're not going to do this any more.

I have a good friendship with a member of industry that was telling me when he took over the company—and it's a fairly big company. He said that he found out that one of the practices of the company was when they got e-mail addresses, they sold them. And he asked, "Why are you doing that? Did you ask for permission?" They said, "No." He said, "We're stopping that right now." That's the kind of leadership we need.

SEN. CANTWELL: Well, we have had a lot of discussion I'm sure in the last couple of years about what those relationships are and what businesses have the right in the various types of marketing, what kind of relationships they can extend to some of their partners. But in this notion of anti-harvesting legislation being specific that you cannot auto generate or cannot take names that you have gotten from other places online, and e-mail them and then going back to those, and I know it's not obvious who all of these entities are, but with a little bit of investigation you can find them. If that organization cannot prove that they have a prior business relationship with that name, then they would be guilty of having harvested it.

MR. SWINDLE: I think you make a point --

SEN. CANTWELL: So we have a—you know, it's a more simple framework of saying that there are people—you know, we've had all this debate about opt in and opt out and we can continue to have it, and what's the right framework and how do you make the penalties not too onerous. But I think that 90 percent of the people would agree on the anti-harvesting aspect.

MR. THOMPSON: I think that would be helpful.

MR. SWINDLE: I think it's a legitimate approach. I would ask for consideration to how you define "existing relationship," because some of the definitions of it I've seen you could drive a Mack truck through them. You almost have an existing relationship just because you exist, and that needs to be carefully thought of because, again, I made a statement in my opening remarks that laws or legislation that will tend to favor larger firms over smaller firms is not a good idea in my mind and I think some of the larger firms will have a capacity to drive trucks through large holes.

MR. THOMPSON: I think it would be helpful. I think it's an element, but I think it's only one element. I know that this committee has been particularly concerned about how to deal with protecting what consumers' interests are. I think it's important, though, that we also manage their expectations.

I think that this is one element, but I think there are other parts of the problem that need to be addressed too and I think that well crafted legislation should have various pieces, because there's not one single answer to this problem

SEN. CANTWELL: Well, I think that I agree with that, But I think focusing on the most egregious issues is important for us to do too. If we're not going to move --

MR. THOMPSON: I agree.

SEN. CANTWELL: If we're not going to move forward on the whole framework --

MR. THOMPSON: I agree.

SEN. CANTWELL: -- let's make progress on the egregious side of the equation. And, Mr. Swindle, I just wanted to clarify. When you were talking about that example of—you were talking about with Microsoft, you were talking about seeing a pop up message, right? You weren't talking about somehow someone now e-mailed you an additional message?

MR. SWINDLE: I'm going to use a term that's alien to Microsoft, I guess, instant message, which I guess belongs to AOL. But right in the middle of the screen, "Messenger."

SEN. CANTWELL: I know what you are referring to. And so are you saying that you lump that in with—I'm not saying it might not be a rude behavior and one that --

MR. SWINDLE: It's spam.

SEN. CANTWELL: -- the consumer—how are you defining it as spam?

MR. SWINDLE: It was a commercial notice placed on my screen without me being able to control it, not knowing it was there. I found out how to control it and shut it off; I haven't gotten any more. But it would have been nice had Microsoft told me, "Hey, Orson, thank you for buying the new computer and getting our software. By the way, our instant messenger service is on and you're going to be receiving messages from us and if you don't want it on, just do this and turn it off." They didn't give me the courtesy of doing that. The message basically said, "If you don't want to receive things like this, go to a website and you can get instant message blocker," or something like that. It was advertisement. Pure, unadulterated advertising.

SEN. CANTWELL: Well, and I think that that's—I certainly think that there are issues about what should be the—you know, once you've installed someone's software, what capabilities they should have in continuing to communicate to you and that should be clear to consumers and you should give them options.

MR. SWINDLE: Give me the power to turn it off, to say no. That's all I ask, and they should have done that and they didn't do it and I find it interesting they are now promoting how they are going to stop spam and by their own practices, they're sending me spam.

SEN. CANTWELL: Well, I don't know that Microsoft is, but I think that we --

MR. SWINDLE: An associate.

SEN. CANTWELL: I think that it is a related issue how—this software functionality and giving consumers obviously the ability to turn off and turn on and to be asked permission is a very key point. But I would try to keep that as a related but separate issue to this notion of then what comes into your e-mail queue from a variety of people that are generated.

MR. SWINDLE: I was looking at my e-mail and coming—blanking over my inbox --

SEN. CANTWELL: The screen.

MR. SWINDLE: -- was this spam message. It can't be called anything other than that.

SEN. CANTWELL: Thank you, Mr. Chair.

SEN. McCAIN: The senator from Washington's time has expired.

Thank you. Thank you very much, Commissioners. I appreciate your time and your input and I'll look forward to your comments on the Microsoft recommendations. The sooner you can get those to us, the better. Thank you.

SEN. CANTWELL (?): Mr. Swindle, are you raised above or below the Nat line.

MR. SWINDLE: Below, sir. I never go back -- (laughs.)