Unsolicited E-mail (spam)
Updated: November 3, 2003

Issue:

Due to concerns about the burdens that unsolicited commercial e-mail, or spam, places on recipients and on Internet Service Providers, over thirty states have enacted legislation attempting to regulate spam.

Proponents of regulation have sought to enact a wide range of measures that would:

• Require all commercial e-mail to include an "opt-out" mechanisms;
• Prohibit false headers and misleading subject lines;
• Require unsolicited commercial e-mail to include standard identifying labels in the subject line; and
• Allow Internet service providers to sue those who violate their posted policies against spam.

Governmental Activity:

Some state legislation that seeks to prohibit spam has been invalidated by federal courts because of Constitutional issues involving free speech and the regulation of interstate commerce.

Because of the confusion created by  different state laws and because of Constitutional problems associated with prohibiting spam at the state level, S.877, the ”CAN-SPAM Act” was passed by the US Senate in October of this year. 

S.877 would:

• require accurate return addresses on unsolicited e-mail;
• make it illegal to send unsolicited e-mail to individuals who opt-out of mailing lists; make it illegal to harvest e-mail addresses from Internet registrars;
• require messages to identify their commercial nature;
• allow ISPs, Federal agencies and state attorney generals the right to sue violators of the proposed law
• pre-empt the states from enacting their own spam laws.

During the last Congress, the House of Representatives passed similar legislation, but the measure died in the Senate, due to concerns raised by the financial services industry over proposals that would mandate an "opt in" policy on commercial e-mail, establish a right for consumers to sue parties who send unsolicited commercial e-mail, and allow states to enact tougher legislation.

The Direct Marketing Association has launched an EMail Preference Service to help consumers reduce unsolicited commercial emails. To "opt-out" of receiving unsolicited commercial email, consumers may use the Direct Marketing Association's online form at www.e-mps.org. Online requests will remain effective for one year.

Software Council Position: 

Electronic mail is an essential marketing tool for legitimate companies in this world of e-commerce and the Internet.

Companies and non-profit organizations sending emails that (1) do not use false transmission or routing information; (2) do not include false information in the subject line; and (3) provide a clear and conspicuous method to allow recipients to opt-out of receiving further messages should be allowed to prospect for new customers without being required to use "ADV" in the subject line of their messages.

Otherwise, legitimate Massachusetts organizations will be deprived of the opportunity to grow their businesses by using email to prospect for new customers.

Looking forward, the Council believes that spam should be addressed in the context of updating Massachusetts ' computer crime law, similar to legislation enacted by Virginia in April of this year. The Virginia legislation, http://leg1.state.va.us/cgi-bin/legp504.exe?031+ful+CHAP098,  imposes criminal penalties on individuals who intentionally use false email headers or information in email subject lines, or who mask the transmission of their messages.

Internet Service Providers (ISPs) should be encouraged to work with Email Service Providers (ESPs) to develop technology-based solutions to the problems created by spam.

The regulation of spam should be addressed at the federal level.

Any federal  legislation should be benchmarked against the following principles, which have widespread industry support:

• Prohibit the use of an Internet address or domain name of a third party without their consent.
• Prohibit email containing false or misleading addresses and subjects, or false or missing routing information.
• Prohibit the sale or distribution of software that is designed to falsify electronic mail transmissions or other routing information.
• Require messages to contain a provision allowing the recipient to opt-out of receiving further messages.
• Pre-empt state legislation.

On September 25, the Massachusetts Senate approved a bill sponsored by Attorney General Tom Reilly regulating commercial electronic mail. The bill requires Massachusetts businesses to place an "ADV" at the beginning of the subject line of unsolicited commercial email that it sends to all recipients wherever located.

The Software Council has opposed this measure, because it will make it impossible for entrepreneurs based in Massachusetts to grow their businesses by using email to prospect for new customers.

The Council will be working with the leadership of the Massachusetts House of Representatives to address spam in the context of updating Massachusetts' computer crime law, similar to legislation enacted by Virginia in April of this year. The Virginia legislation imposes criminal penalties on individuals who intentionally use false email headers or information in email subject lines, or who mask the transmission of their messages.