Tuesday, December 02, 2003

Score one for the spammers: CAN SPAM bill to become law - TechUpdate - ZDNet:
"For the umpteenth time: Anti-spam laws are a bad idea as long as they're written by those out of touch with the underpinnings of Internet e-mail. For example, writing into law anything that ventures down the path of 'opting out' (short-hand for 'optioning out,' deselecting, or unsubscribing yourself from membership in a mailing list) --- which CAN SPAM does --- creates a virtually unenforceable law since there are a million and one reasons (most of which would not be due to negligence on behalf of mailing list operators) that an opt-out mechanism may not work at some given point in time. Before opt-out language can be included in a law, there needs to exist an opt-out standard under the guise of what I call a relationship termination protocol over which dissimilar email clients and servers can interoperate. "

Perhaps you think I'm on the lunatic fringe, an ultraconservative who refuses to see the good in legislation that clearly has the welfare of the spam-afflicted in mind? OK ignore me. But don't ignore the following warning, reported in a recent CNET News.com story about the CAN SPAM bill, that was sent from the National Association of Attorneys General to Congress: "The bill creates so many loopholes, exceptions, and high standards of proof, that it provides minimal consumer protections and creates too many burdens for effective enforcement...We respectfully request that you not move forward."

Lack of enforceability has been my main point all along and it's refreshing to see the very folks chartered with upholding the CAN SPAM bill saying to Congress "Hey, you're all off your rockers if you move forward with this law." Still not convinced? Assuming that the law's effectiveness is dependent on the fact that all evil spammers fall within its jurisdiction (a very bad assumption considering the mounting tide of spam from China and South Korea), then you, as a concerned Netizen, should consider its definition of spam. To the relief of e-mail marketers everywhere, spam will not be the first unsolicited commercial email you get from someone you consider to be a spammer. It's one of the subsequent ones. That's right. It's the second, third, fourth, or later one and it is only such if, after receiving the first one, you issued an objection according to a method the sender, not you, says you are permitted to do so (the vaulted "opt-out" for which no standard method exists and no auditable test for proven functionality has been created).

Are you getting ill yet?

Despite the fact that the Attorneys General will be reluctant to expend the resources necessary to prosecute given the loopholes it envisions, Senators Burns and Wyden cited the financial implications in their declarations of victory. Sen. Ron Wyden, D-Ore., said that "when this bill takes effect, the big-time spammers who up until now have faced virtually no penalties will suddenly be at risk of criminal prosecution, (Federal Trade Commission) prosecution and million-dollar lawsuits." Sen. Conrad Burns, R-Mont., said: "In cases where e-mail marketers don't comply with the CAN-SPAM bill, the penalties are very severe...Spammers are actually on the hook for (per e-mail) damages, with a cap of $2 million."

Newsflash. The big time spammers --- at least the ones who are intentionally sidestepping all sense of Internet decorum in order to invade the sanctity of your inbox --- have about a hundred dollars in their checking accounts--collectively. It was only about six months ago, at the now infamous Federal Trade Commission three-day workshop on spam, that we heard from several Attorneys General and Internet Service Providers about how their investments in certain investigations, indictments, prosecutions, and lawsuits were disproportionate to the final outcome: one or two bad apples (out of an ocean-sized apple orchard) with little or no money to their names shut down. My inbox didn't notice. Did yours? Despite efforts to publicly draw, quarter, flog, and hang the offenders, the rest of the orchard didn't appear to flinch. It may have yawned, though. We'll never know. They're a secretive bunch. It's not like they have offices on Madison Avenue.

http://techupdate.zdnet.com/techupdate/stories/main/Score_one_for_the_spammers.html

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