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REGULATE UNSOLICITED COMMERCIAL EMAIL House Bill

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REGULATE UNSOLICITED COMMERCIAL EMAIL House Bill REGULATE UNSOLICITED COMMERCIAL EMAIL House Bill 4519 (Substitute H-2) First Analysis (5-8-03) Sponsor: Rep. Bill Huizenga Committee: Energy and Technology THE APPARENT PROBLEM: Advertisers have long claimed that their right to free send e-mails to newsgroups primarily to target speech allows them to provide potential customers “lurkers” who read a group or groups’ messages, but with information about goods and services. do not subscribe to groups or share their e-mail Consumer advocates often reply that respect for addresses publicly. Though the primary target of the individuals’ right to privacy demands acknowledging spam may be the lurkers, newsgroups have reportedly that certain spheres of person’s lives should be free broken up when participants have become frustrated from the uninvited and unwelcome intrusion of by the dwindling number of posted messages that others. Reality is of course more complex, as have anything to do with the newsgroup’s purported advertisers rarely confine themselves to providing subject matter. comprehensive, balanced information about their wares, and despite their protests to the contrary, Alternatively, or in conjunction with newsgroup people are often happy to learn about unfamiliar spamming, advertisers may mass distribute messages House Bill 4519 (5-8-03) goods and services, regardless of whether the to e-mail addresses. In some cases, these addresses messenger has a financial stake in the interaction. are obtained when businesses ask for permission to The regulation of unsolicited direct mail advertising, notify their customers about the availability of new telephone solicitation, and more recently unsolicited products, discounts, and other items of interest by e- commercial e-mail is an attempt by governments to mail. Yet a report by the Center for Democracy and find a nuanced middle ground. Technology suggests that most businesses that have an ongoing relationship with a customer generally “Spamming” is the mass distribution of unsolicited respect customers’ express wishes not to receive e- electronic mail (e-mail) messages, whether for mail ads. The real problem for consumers appears to commercial or noncommercial purposes. The e-mail be businesses and marketers that gather or guess e- messages themselves are called “spam”. While mass mail addresses of the public at large and figure that distributed unsolicited e-mail need not be sent for they stand to gain if they receive even a handful of commercial purposes, and there is no reason why replies after spamming thousands, hundreds of unsolicited commercial e-mail (UCE), like direct thousands, even millions of e-mail addresses. mail advertisements and telephone solicitations, Addresses may be found by “mailbots” that “sweep” cannot be tailored to individuals, spamming is or “scrape” the Internet for unbroken character generally valued and reviled as an inexpensive way strings that use the “@” symbol, judging that the for advertisers to promote goods and services to large majority of them will be valid e-mail addresses. numbers of people. Inexpensive for the sender, that Alternatively, “brute force” and “dictionary” is: e-mail ads do not involve the paper and postal programs “think up” plausible user names (e.g., costs of direct mail advertising, and the personnel and “johndoe”, “marysmith”, and “abc123”), and attach phone costs are far less than those for telemarketing them to an @ symbol followed by one or more sales. popular domain names (e.g., Internetserviceprovider.com, nonprofitentity.org, and To understand why spamming is such an attractive college.edu) allowing spammers to send messages to technique for many advertisers and such an addresses that seem likely--but are not known--to be aggravating nuisance for many e-mail users, it helps occupied. Regardless of how one gets on a to understand more about the practice itself. spammer’s mailing list, removing oneself from the There are two basic ways that advertisers go about list may be very difficult. Spammers often fail to spamming: advertisers may send a single message--or leave any valid contact information, and even if they a message whose content varies slightly--to multiple do, they may ignore requests to be removed from the Usenet newsgroups or they may send a single list or, worse yet, take any response whatsoever as a message to multiple e-mail addresses. Advertisers Analysis available @ http://www.michiganlegislature.org Page 1 of 6 Pages sign that the address is occupied, and therefore, ripe have been seeking such inappropriate content. This for future spamming. can create tension in the home or workplace, which may not be easily quantifiable. Further, as noted above, spam is cheap for the sender. One of the reasons that commercial spam has The scope of the problem is huge. The Economist provoked so much indignation among recipients is cites one estimate that spam accounts for 45 percent that it shifts the cost burden of advertising from the of all e-mail traffic. In addition, the article reports marketer--or ultimately the actual customer who that America OnLine (AOL) “blocks an average of buys the good or service at a price that reflects the 780 million junk e-mails daily, or about 100 million advertising cost--to the potential customer. more e-mails than it actually delivers”! AOL and Generally speaking, the spammer incurs only the other e-mail address providers offer their address costs of personnel for writing and sending the holders the option of having spam--or rather, e-mail message, obtaining e-mail addresses and an Internet that appears to be unsolicited and unwanted--sent to a connection. In an April 2003 article The Economist junk mail folder. Those who choose this option can reports that CDs can be bought for $5 per million adjust the settings so that the folder purges itself on a addresses, and whatever the other costs are, they are daily or other periodic basis. Others have fairly negligible when divided by 100,000 or independently composed “black lists” outing 1,000,000 recipients. According to committee spammers. Filtering invariably leaves gaps, letting testimony (and corroborated by newspaper and some UCE through, and blocks some wanted e-mail magazine articles, letters to the editor, and from reaching addressees. Moreover, filtering e- information provided by anti-spam groups) it is not mails is time-consuming and expensive, whether it is unusual for people to come into work on a Monday an individual e-mail address holder trying to sort morning to find 100 or more spam messages or to through the wanted and junk e-mail messages or an e- come back from lunch to find a dozen spams sitting mail address provider trying to keep address holders House Bill 4519 (5-8-03) in their in-boxes. Opening and deleting the messages happy by preventing the junk from ever reaching means lost productivity to their employers. their in-boxes. And black lists leave judgments about who is a spammer and who is not to the discretion of Then, when people leave work for the day and go whoever creates the lists. Being misidentified as a home and check their personal e-mail accounts, they spammer can create problems for “legitimate” e-mail may find several more spams awaiting them. senders, while illegitimate senders often “hijack” e- Opening and deleting those messages deprives mail addresses and domain names to spam, creating recipients of their own time and possibly money, if difficulties for the victimized e-mail address or for example they have a dial-up connection and pay domain name holder who must then explain that he is phone charges by the minute or have a restricted not the spammer. number of “free” minutes through their Internet service provider. While some people learn to AOL has joined forces with major competitors recognize spam fairly quickly, an employee may be Microsoft and Yahoo to collectively target the very hesitant to delete a message until she is problem, and in late April and early May, the Federal absolutely sure it has nothing to do with her work, Trade Commission held a three-day conference and people who post messages to the web frequently addressing spam. Various federal legislative may be used to receiving e-mails from people they do proposals have been introduced and debated, and not know. People who do not use e-mail frequently over half the states have enacted their own anti-spam may have a more difficult time distinguishing legislation. Many people believe that Michigan between legitimate e-mail solicitations and abusive or should do the same. fraudulent offers. The nuances of individuals’ e-mail habits may make it difficult to determine the precise THE CONTENT OF THE BILL: costs of spam in time and money to businesses and ordinary e-mail users, but it is clear that the costs can The bill would create a new act, the “Unsolicited be significant. Commercial E-mail Protection Act”, to regulate e- mail messages that promote goods, services, real Then, there are other, less tangible costs of spam: property, and other things of value and are sent consider the employee or child who receives a without the recipient’s express permission. Senders message containing pornography. Regardless of of unsolicited commercial e-mail messages (UCE) one’s web browsing history, anyone can receive such would have to identify themselves, indicate in the messages, and this may in turn lead a supervisor or subject heading that the message contained an parent to suspect that their employees and children advertisement, and allow recipients of such ads to Analysis available @ http://www.michiganlegislature.org Page 2 of 6 Pages “conveniently and at no cost” opt out of receiving “Commercial e-mail” would be defined as an future UCE from the sender. In addition, the bill electronic message, file, data, or other information would prohibit the falsification or misrepresentation promoting the sale, lease, or exchange of goods, of a message’s point of origin or transmission path services, real property or any other thing of value that and would prohibit knowingly selling, giving, or was transmitted between two or more computers, otherwise distributing software that falsifies such computer networks, or electronic terminals within a information.
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