Additional Views
by
The Honorable John D. Dingell

April 4, 2001

I believe H.R. 718 will go a long way toward eliminating the insidious problem on the Internet known as "spam."

There are some who urged this Committee to make certain changes that I believe would have seriously impaired the effectiveness of this anti-spam legislation. I am pleased those efforts to eviscerate key parts of the bill have been rejected by the bill’s sponsors, Ms. Wilson and Mr. Green.

Spam is no longer a mere nuisance to the 160 million Americans now using the Internet. It has rapidly degenerated into an abusive marketing practice. Innocent users are constantly bombarded with unsolicited commercial messages over which they have no control. Worse, many of these messages are pornographic in nature, and include "teaser" images inviting the recipient to visit one adult site on the Web or another. For many families, these spam messages are more than an intrusion, they are a personal assault.

Spam also imposes real economic costs on the public. Some users pay metered charges for Internet access; others, particularly in rural areas, pay long distance telephone charges when dialing-up to the Internet. The time spent downloading unwanted messages translates into real dollars and cents. And, of course, the slower the Internet connection, the greater the tab.

Perhaps the greatest cost associated with spam is incurred by the more than 3,000 Internet Service Providers, or ISPs, in this country. These companies have little choice but to expand their server capacity to deal with the proliferation of spam. Most of these ISPs are small businesses that simply cannot afford the additional investment required. Some resort to self-help methods to delete large volumes of bulk e-mail, but this labor-intensive process is also expensive and, unfortunately, not very effective.

H.R. 718 contains several means to eliminate the problem of spam, including an opt-out for individual consumers. Unfortunately, consumers could spend most of their waking hours sending opt-out requests and still not reach every spammer on the Internet.

In my view, the most effective way to eradicate the Internet of abusive spammers is to put the matter squarely in the hands of ISPs, and this bill provides tools for ISPs to deal with the problem directly. ISPs have a direct and compelling financial incentive to protect both the integrity of their networks and the quality of service provided to their customers.

Section 5(b) of this legislation gives ISPs, in addition to individual consumers, the right to opt-out of receiving spam. No longer will ISPs have to struggle in vain to rid themselves of unwanted spam that is clogging their networks and infuriating their customers. They can elect to opt-out of spam, and enforce that policy against violators. In my view, it is a critical element contained in this legislation to protect consumers, once and for all, from the increasing struggle against this offensive practice.

Just as important, the bill preserves a right already available to ISPs under existing law. Section 5(c) permits ISPs to continue using defensive measures, technical and otherwise, to block the unwanted messages that overload their networks and outrage their customers.

The bill also contains important enforcement measures. It affords individuals and ISPs a private right of action against spammers who do not comply. It also empowers the Federal Trade Commission to enforce the bill’s anti-spamming provisions, and carries steep penalties for violators.

I would note, however, that an important enforcement mechanism contained in the Subcommittee-passed bill was weakened when the bill was considered by the full Committee, and is the cause of some concern. The Subcommittee originally agreed on a compromise that prohibited class action lawsuits, and instead authorized State Attorneys General to enforce the bill’s anti-spam provisions on behalf of aggrieved citizens in their respective States. Unfortunately, an amendment at full Committee had the effect of weakening the State AGs’ ability to pursue wrongdoers by expressly prohibiting the recovery of any litigation costs associated with an enforcement action.

In my view, it is simply unfair to require the taxpaying public to foot the legal bill for the damage caused by spammers. Recovery of reasonable legal fees is properly included in damage awards to individuals under this bill, and I believe it should likewise be permitted when the State acts as an agent on their behalf. If we are serious about putting an end to spam, as I hope we are, then we should not be creating a disincentive to enforcing the law against it.

On balance, the bill is a good one, and I was happy to support it. However, it is imperative that further attempts to weaken the bill’s enforcement provisions are rejected as this bill moves to the House floor and thereafter.