In a 392-5 vote, the House passed the Controlling the Assault of Non-Solicited Pornography and Marketing Act. Also known as the CAN-SPAM Act, it's largely similar to a bill passed by the Senate last month. The new Act is the result of a compromise between proponents of several competing bills.
It is expected to be approved by the Senate in the next week or so, and should be signed by the President in time for a commencement date of 1st January 2004.
The bill takes an 'opt-out' approach to spam – it does not ban unsolicited commercial e-mail or text messages, but demands that spam sent to consumers includes a means of opting out of the mailing list used by the particular company.
The bill also provides for a national Do-Not-Spam list, bans the sending of fraudulent e-mails, and provides for civil and criminal sanctions for those spammers who breach the rules. These may amount to $6 million fines and five years in prison for the most severe cases.
Unlike some more stringent state anti-spam laws, CAN-SPAM will not permit individuals to take action into their own hands and sue spammers directly. This role is to be left only to the usual enforcement agencies.
In welcoming the new law, the US Justice and Commerce Departments commented:
"The bill will help address some of the problems associated with the rapid growth and abuse of spam by establishing a framework of technological, administrative, civil, and criminal tools, and by providing consumers with options to reduce the volume of unwanted e-mail."
Anti-spam groups are less optimistic. According to the US Coalition Against Unsolicited Commercial E-Mail (CAUCE), "This legislation fails the most fundamental test of any anti-spam law, in that it neglects to actually tell any marketers not to spam."
UK based Spamhaus commented, "With the passage of CAN-SPAM, spamming will be officially legal throughout the United States".
Spamhaus continued:
"If CAN-SPAM becomes law, from January Europe and the United States will have opposing legislation, as Europe has already introduced legislation making spamming illegal. But 90% of Europe's spam problem originates in the United States where spamming will now be legal, therefore Europe can expect the levels of incoming spam from the United States to more than double during 2004 as U.S. spammers ramp up their output under America's new YOU-CAN-SPAM law."
William Malcolm, a data protection and privacy expert with Masons, the law firm behind OUT-LAW.COM, clarified the European approach:
"The EU's anti-spam regime goes further than the US federal bill. The Privacy and Electronic Communications Directive requires all Member States to implement laws requiring prior consent to be obtained before any marketing e-mails can be sent to individual subscribers, generally those in the B2C [business-to-consumer] space.
"However, there are some important exceptions for some types of existing customer relationship. These vary from country to country, so those marketing across Europe need to consider carefully all national laws.
"In the UK, regulations implementing the Directive come into force on 11th December. Interestingly, one of the requirements of those regulations is that all marketing e-mails provide an opportunity for the recipient to unsubscribe from further marketing communications. This reflects the approach that the US is proposing at federal level."
"In the UK, there are also rules from the advertising industry, known as the CAP Code, which require 'explicit consent' for some types of e-mail marketing. The Advertising Standards Agency, responsible for enforcing these rules, has shown a willingness to act against those failing to comply."