New U.S. Spam Law is Poorly Conceived Under Improper Influence

After seeing and hearing much hoopla in the media and a positive "spin" campaign by the U.S. Federal Trade Commission,  you might ask, "What's wrong?". 

Privately we have feared that U.S. lawmakers are generally too poorly briefed; too far out of touch with constituents; and too much in the influence of green-greedy corporate rulers to grasp the technological implications of 21st Century privacy issues and implement public policy in favour of constituents' civil rights and liberties. A reading of this new SPAM legislation only reinforces the worry and suggests that corporate interests, not constituents' rights, are favoured.

The CAN-SPAM 2003 Impact is Global

One cannot be too surprised that the more progressive thinking Europeans led the way in coping with personal privacy issues by making SPAM illegal. Unfortunately, enforcement is still an outstanding question. 

In the current climate of strained relationships between the United States and most of the rest of the world, particularly with Europe, one should not be surprised that the United States would head in exactly the opposite direction from Europe and create legislation that seeks ways to legitimize SPAM.

Consider that the United States is both a huge target for international SPAMMERS and a large source of outbound SPAM. The new legislation makes the U.S. a fair target for global SPAMMERS and further enables U.S. SPAMMERS to continue to annoy the rest of the world. Yikes. The sorry U.S. citizen, caught in the middle with no protection, is totally screwed--their in-boxes about to be pounded..

The U.S. current trend of exasperating its friends and allies may be driven by ruthless corporate anarchy wherein, according to many U.S. consumer advocacy groups,  the U.S. people's privacy and civil rights in general are pushed by the wayside in favour of corporate interests. (If the governing collective in the U.S. Congress and Senate has no care for the rights of Americans, it likely  would not have care for the rights of others around the world.)

Privacy Rights Suffer, Green Greed  Wins

If the allegations are true, U.S. people themselves are ostracized from their own lawmaking process and general governance; and the corporations, particularly the media giants, with special interest groups, are manipulating public policy to favour their own greedy interests without sight nor consideration of the populace. Certainly U.S. citizens privacy rights have been horribly eroded by the CAN-SPAM Act.

While U.S. governance is not the issue, SPAM is our issue, it has been argued as the climate from which so-called personal privacy and public-interest policies are emerging to impact the world. The U.S. government has screwed its own population's privacy rights in favour of the narrow direct marketing lobby which includes U.S. advertising agencies, public relations firms, Democrat and Republican political party organizations, and general lobby groups.

If spammers include "unsubscribe" wording in the email body and have a bone fide return address, then unsolicited mail (SPAM) is legal according to the U.S. CAN-SPAM Act. (PDF)  / CAN-SPAM Act. (HTML). Well, if this were truly an anti-SPAM law, it would make unsolicited commercial email illegal as do the European anti-spam laws. This law is likely to increase SPAM to and from the United States.

The Controlling the Assault of Non-Solicited Pornography and Marketing Act (short name CAN-SPAM 2003) was passed by the U.S. Senate on November 25, 2003; was agreed to by the House of Representatives on December 8, 2003; and was signed into law by the U.S. President on December 16, 2003. The Law has effect beginning January 1, 2004.

Enforcement Aspects of CAN-SPAM 2003 Rise Above the European Law

According to the legislation, those persons using 3rd party exploits including open relays and proxies (hijacking computers or open relays for the purpose of sending unsolicited commercial email (UCE)) are committing a misdemeanour (the near-equivalent of a summary offence in Canada) crime. This enforcement regime is better than the European laws wherein enforcement is still an issue.

The new U.S. law makes it a misdemeanour crime subject to up to one year in jail for intentionally sending unsolicited commercial email with falsified header information and sets out civil penalties for a host of other common spamming practices used to obtain e-mail addresses, including harvesting, dictionary attacks and spoofing.

The U.S. Federal Trade Commission (FTC) is charged with enforcing the new law. In addition, the FTC is required to report back to Congress within two years on the effectiveness of the law and the need, if any, for modifications.

Wireless spam is also covered by the law with the U.S. Federal Communications Commission (FCC) required to promulgate rules within nine months to shield consumers from "unwanted mobile service commercial messages."

Responsibility for SPAM Moves To End User Who Must "Opt-Out"

Most people have heard about the United States' contentious "opt-out" principal. In Europe, commercial e-mailers may only send mail to persons who request it. Europeans who want to receive commercial email must "opt-in". Thereby there is no such thing as unsolicited commercial email. E-mailers can only send to lists of people who have said they don't mind getting it.

Now, in the United States, the onus is on the recipient. If you have an email address, you now have an obligation to find out who the SPAMMERS are and send them an email asking them not to send you email. In the alternative you can wait until you get an unsolicited commercial email and then make your "unsubscribe" request and hope the sender is abiding. In short, SPAMMERS may send anyone any email until they are asked not to do so, and what thereafter? We'll soon see.

You can read the U.S. CAN-SPAM legislation for yourself in PDF or HTML formats.

Additional reading: 

1. http://www.spamhaus.org/position/CAN-SPAM_Act_2003.html
2. http://news.com.com/2010-1028-5125192.html
3. http://www.techblog.org/news-01/01-022-dec-11-2003.html
4. http://zdnet.com.com/2100-1107_2-5126715.html