Can-Spam Act of 2003

CAN-SPAM ACT OF 2003

Mr. WYDEN. Mr. President, I will be very brief. I know my colleague from New York, Senator Schumer, has a plane to catch.

Senator Burns and I have worked for more than 4 years on this legislation, and it is particularly important that it pass today. Every single day, the flood of pornographic and sleazy spam grows. With this legislation, Congress is beginning to stem the tide. We understand that this is going to be a difficult battle because the kingpin spammers are not technological simpletons. No matter what law Congress passes, they are going to be very aggressive about trying to find evasive strategies to get around that. But I am of the view that with the passage of this legislation, if our prosecutors, the Federal Trade Commission, and the Attorney General come down on the kingpin spammers with hobnail boots, we can put in place a strategy that can stem this tide.

Suffice it to say, the spammers are going to go to great lengths to try to get around this law. We know, for example, that many of them are going to try to move offshore. It is going to be important to have international agreements that will also bring together U.S. authorities and international authorities against those who would try to get around this legislation.

It is important to remember what Congress is doing now; that is, Congress is saying spamming is an outlaw business. It is an outlaw business that is going to be treated as an area of priorities for prosecutors and law enforcement officials. That has not been the case in the past. Essentially, when Senator Burns and I pursued this problem of spamming a number of years ago, a lot of people asked: Why in the world would a couple of U.S. Senators be tackling this issue? They intimated that it really wasn't worthy of the Senate's time. Spam has grown so extraordinarily in the last few years, and now people have been clammering about why the Senate isn't moving ahead with this legislation that they think is important because spam is such an intrusion into their lives every single day.

We have continued work to do. Senator Schumer will speak next. He has a very important idea with respect to trying to put in place a Do Not Spam list. It is a promising one. I think all of us would acknowledge there are some details to be worked out with the Federal Trade Commission. Senator Corzine has done some very good work in looking at some creative ideas for the future. I intend to work closely with him because he has been a leader in the technology area. But I think we ought to understand that this effort today is the culmination of more than 4 years of hard work. It is not just needed, it is overdue.

We are not going to pretend this legislation is a silver bullet because we know that no piece of legislation is. But when this bill takes effect, the big-time spammers who up to this point faced no consequences, for all practical purposes, will suddenly be at risk for criminal prosecution, Federal Trade Commission enforcement, and million-dollar lawsuits by State attorneys general and Internet service providers.

I believe a number of these key enforcement actions will be taken immediately after this legislation is passed. This will set in place the kind of deterrent that is going to allow us to say it is a different day. The big-time spammers will face consequences when they flood our citizens and our families with the trash and the pornography. That is why this is an important step forward.

He is going to speak next, but I commend my colleague, the Senator from New York, for his usual persistence. He stayed at it by saying this was an important issue. We have wrestled with this question with respect to the Do Not Call list as well. I happen to think that the Senator from New York is certainly talking about a principle we need to address in the communications area. I happen to think the first amendment is special. People ought to have the right to communicate. But citizens also ought to have the right to say: We have had enough. We don't want to have people flooded with this kind of information. That is the principle that is at stake here. I commend the Senator from New York.

My partner, the chairman of the telecommunications subcommittee, is not in the Chamber. But I am proud to serve with him. He has been an exceptionally gracious ally on this for many years.

I am glad that this proconsumer measure, a measure that I think makes a beginning in efforts against big-time spammers, is passing. It will be of great benefit to consumers.

I yield the floor.

BREAK IN TRANSCRIPT

ANTI-SPAN LEGISLATION

Mr. BURNS. Mr. President, I would like to engage the gentleman from Oregon, Mr. WYDEN, in a colloquy regarding some details of the anti-spam legislation approved by the Senate. We have worked tirelessly on S. 877, and it is important to ensure that spammers cannot get around the definitions of electronic mail address and electronic mail message that will be regulated under this law. The definitions in the bill require electronic mail addresses to contain a domain part. This requirement is important to make sure we only capture e-mail and do not regulate other communications platforms, such as Instant Messaging. However, I want to be clear that the intent of Congress is to capture e-mail messages as that term is commonly understood. This includes e-mail messages sent within the same domain that may not actually display the domain part of the e-mail address.

Mr. WYDEN. I thank the gentleman from Montana for raising this important issue. Yes, the intent of S. 877 is to capture all e-mail messages as that term is commonly understood. This includes e-mail messages where the domain part of the address may not be displayed. That is why the bill's definition of e-mail address, in referring to the domain part, contains the phrase "whether or not displayed." We certainly do not want to create any loopholes that spammers could potentially exploit and I appreciate the opportunity to clarify this point.

Mr. BURNS. I would like to flag one other aspect of the bill. Under section 6, the FTC can bring enforcement actions against merchants whose products are promoted in spam e-mails, even if the merchant is not the spammer. Isn't that correct?

Mr. WYDEN. I agree with the Senator.

Mr. BURNS. But isn't it also true that section 5 can be used against merchants whose products are promoted in spam e-mails? Can't the FTC, State A.G.s, and Internet Service Providers bring actions under section 5 against parties who aren't themselves spamming, but rather hire spammers to promote their products or services?

Mr. WYDEN. Absolutely. The bill's definition of "initiate" makes that clear, because it applies not only to the spammer that originates the actual e-mail, but also to a party who has hired or otherwise induced the spammer to send the e-mail on its behalf. If the e-mail message violates the bill, both parties would be on the hook under section 5, and enforcement would be possible against both or either parties.

Mr. BURNS. That confirms my understanding. So what is different about section 6, as I understand it, is that section 6 does not require any showing that the merchant actually hired or induced the spammer to send the spam. In other words, if the spammer is hard to find and his contractual relationship with the merchant has been obscured by under-the-table dealings, the FTC doesn't have to spend time and effort trying to prove the relationship.

Mr. WYDEN. I share the Senator's understanding of how section 6 differs from the provisions of section 5. I would only add that the drafters considered which parties should have the discretion to enforce the bill in the manner set forth in section 6, and decided that section 6 should be enforced by the FTC only.

Mr. BURNS. I thank my colleague from Oregon.