Thursday, October 23, 2003

Senate Anti-Spam Bill passed - Can Spam Act (S. 877)


Via Tech Law Advisor, via Michael Wong, and via Zachary Rodgers, I was directed to Roy Mark at Internet News and his article of October 23, 2003 on "Senate Anti-Spam Bill Ups Ante for House Action".



CAN SPAM ACT (S.877) - US Senate passes Anti-Spam Bill, Not Yet Law



As reported by Mark, the US Senate has finally approved "the first ever federal anti-spam legislation" on a 97-0 vote (the zero tells you that any Senator voting AGAINST an anti-spam proposal could probably have kissed his re-election chances goodbye). The CAN SPAM Act (S. 877) (CAN SPAM is an acronym for CONTROLLING THE ASSAULT OF NON-SOLICITED PORNOGRAPHY AND MARKETING) was co-sponsored by Senator Conrad Burns (Republican, Montana) and Senator Ron Wyden (Democrat, Oregon).



According to this bill, commercial bulk e-mailers violating the law would be subject to civil and criminal penalties. The bill defines spam as an "unsolicited commercial electronic mail message" which "is not a transactional or relationship message" and which "is sent to a recipient without the recipient's prior affirmative or implied consent".



Senator Charles Schumer (Democrat, New York) championed an amendment added to the bill which directs the FTC (Federal Trade Commission) to develop a federal "do not spam list" similar to the National Do Not Call Registry.



Senators Orrin Hatch (Republican, Utah) and Patrick Leahy (Democrat, Vermont) added criminal provisions to the bill ranging up to five years in prison for some of the most insidious common spamming practices.



PRESS RELEASE REGARDING THE SENATE BILL



Here is a press release found at Senator Conrad Burns' website:



Press Release October 22nd, 2003



BURNS, WYDEN WIN PASSAGE OF ANTI-SPAM LEGISLATION



Legislation gives consumers more control over unwanted e-mail, promises stiff punishment for senders of unlawful, deceptive spam



Washington, DC - U.S. Senators Conrad Burns (R-Mont.) and Ron Wyden (D-Ore.) today won unanimous Senate approval of the bipartisan CAN SPAM Act of 2003 (S. 877), aimed at helping American consumers deal with the growing problem of unsolicited e-mail or "spam." Wyden and Burns have worked for more than three years on legislation to curb spam, which constitutes nearly half of all e-mail traffic today. The legislation passed by the Senate today includes a number of tough civil and criminal penalties against the senders of unlawful unsolicited e-mail, and addresses a number of other issues including the idea of a "do not spam" list and special warnings for pornographic messages.



"This is something we have been working on for some time now," said Burns. "There has been an ongoing push from all sides on this issue, and the time has finally come. The overwhelming message from consumers and industry alike is that something needed to be done and I am happy to say that today we succeeded in that effort in the Senate."



"Today, the Senate has sent the message that the government is going on the offensive against kingpin spammers," said Wyden. "Americans are tired of just watching and fretting over in-boxes clogged with unwanted e-mail, and this legislation is an important step toward giving them more control."



Worldwide, more than 13 billion spam e-mail messages are sent each day. Costs in the United States alone have been estimated at $10 billion per year, due to expenses for anti-spam equipment and manpower and lost productivity. The Burns-Wyden bill particularly targets deceptive messages sent by many large-volume spammers, who often hide their identities, use misleading subject lines, and refuse to honor opt-out requests from spam recipients.



Following is a description of the provisions of the bill approved by the Senate today.

Civil provisions of the bill include the following:



-a requirement that senders of marketing e-mail to include a return address so the consumer can tell them to stop;



-a requirement that unsolicited messages include clear notification that the message is an advertisement, and a valid physical postal address;.



-a prohibition on false and deceptive headers and subject lines - so that consumers can immediately identify the true source of the message, and so that Internet companies can identify the high-volume senders of spam;



-a provision to triple the monetary damages imposed on spammers who engage in particularly nefarious spamming techniques - such as using automatic software programs to "harvest" e-mail addresses from Internet websites, and using "dictionary attack" software to send messages to a succession of randomly generated e-mail addresses in search of real recipients; and



-strong, multi-pronged enforcement by the Federal Trade Commission, state Attorneys General, and Internet service providers (ISPs), with the potential for multi-million dollars judgments.



Additional criminal provisions, authored by Senators Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.) were added into the legislation by amendment on the Senate floor. The Hatch/Leahy criminal provisions create several tiers of penalties, ranging up to 5 years in prison, for several common spamming practices, including:



-hacking into somebody else's computer to send bulk spam;



-using "open relays" to send bulk spam with an intent to deceive;



-falsifying header information in bulk spam; and



-registering for 5 or more email accounts using false registration information, and using these accounts to send bulk spam.



-sending bulk spam from somebody else's Internet protocol addresses.



The Burns-Wyden legislation, with an amendment from Senator Chuck Schumer (D-N.Y.), also requires the Federal Trade Commission to report to Congress with a plan to implement a "do-not-spam" list, similar to the "do-not-call" list for which millions of Americans have already registered, and to share any potential drawbacks or difficulties with the implementation of such a list. The legislation also gives the FTC the authority to implement a do-not-spam list.



Other amendments to S. 877 include provisions to require the FTC to write rules for mandatory labeling of pornographic messages; a separate provision directs the FTC to consider mandatory labeling for unsolicited e-mail generally, as well as possible financial rewards for tech-savvy citizens who help trace hard-to-find spammers.



A number of anti-spam bills are currently moving through the House of Representatives. Wyden and Burns hope to work with their anti-spam counterparts in the House to send final legislation to the President's desk this year.




[Let me say that I personally - and I am sure many e-mail users are like I am - find much commercial spam to be an odious, egregious violation of the personal sphere, daily confronting computer users with some of the basest elements that humanity can produce, and as far as I am concerned, the civil and criminal penalties for spammers of all ilk should be much higher than they are in this bill. These people daily and negatively and often substantially reduce the quality of my life as well as the lives of millions of others, and for that, the punishments should be as severe as possible. I personally find this bill to be much too soft.]



WHAT IS THE HOUSE OF REPRESENTATIVES DOING?



Bills must of course pass both houses of Congress to become law. Mark writes that the Senate anti-spam bill is not substantially different than competing bills "currently bottled up in the Energy and Commerce Committee", chaired by Billy Tauzin (Republican, Louisiana).



It may thus be high time for the House of Representatives to get their spam-act together. But before we throw stones we must of course inquire as to what is the reason for the delay in the House Energy and Commerce Committee?

I read the following about that committee at NAW :

"while [it is] just the fifth in size in the House of Representatives with 57 Members, [it] has the broadest legislative jurisdiction of any committee in either the House or Senate, and is responsible for approximately half of all legislation introduced in the House."



Presuming that work overload is one aspect of the delays in the House, we must ask what the reason for that kind of disproportionate job distribution in the House might be and why is that not changed, so that legislative tasks in the House are evenly distributed? Are some lawmakers more or lesser lawmakers than others? Hard to believe. Representatives in Congress should streamline their operations in order to serve as models fit for emulation rather than to serve as bad examples of organization. A corporate executive who so uneconomically split his manpower would be out on his ear in no time.



In any case, as Senator Wyden, sponsor of the Senate Bill stated: "Today, the Senate has sent the message that the government is going on the offensive against kingpin spammers," said Wyden. "Americans are tired of just watching and fretting over in-boxes clogged with unwanted e-mail, and this legislation is an important step toward giving them more control."



Better late than never.



CONGRESSIONAL LEGISLATIVE DRAFTING IS IMPROVABLE



Taking §102(a)(1) of the CAN SPAM ACT, I would like to show my editing suggestions to reduce the unnecessary verbiage increasingly found in Congressional legislation - are drafting and writing not taught in the law schools?



original text

(1) Electronic mail has become an extremely important and popular means of communication, relied on by millions of Americans on a daily basis for personal and commercial purposes. Its low cost and global reach make it extremely convenient and efficient, and offer unique opportunities for the development and growth of frictionless commerce.



text as edited by LawPundit retaining the above meaning and throwing out the verbiage

(1) Electronic mail (e-mail) has become an important daily means of personal and commercial communication for millions of Americans. Convenient and efficient due to its low cost and global reach, e-mail offers unique opportunities for the development and growth of streamlined commerce.



[Explanation of the editing above. Using both "popular" and "relied on by millions of Americans" is repetitive. Daily basis means "daily". "Frictionless" commerce is not a "term of art" commonly used but rather appears to be a registered trademark - see Frictionless Commerce - talk about advertising for a commercial company through an anti-spam law. "Extremely" twice is like "very" overdone, see Volokh's How to Write, where he suggests avoiding terms such as "very" as verbiage].

Google's new Command - Define:


Via TVC Alert from Genie Tyburski at the Virtual Chase I find at Aaron Swartz's Google Weblog that: "Google Glossary has gone live on the main Google site. Do a search for something like define elephant or define dna and you get back a definition with your search results. Search for define: dna or click 'more results' to see the rest of the definitions."



I find that only the command "define with a colon", i.e.

define:

actually works - but I am in Germany, maybe it works otherwise elsewhere.



Entering that command in Google gives a fixed list of definitions of a given term on the web,



e.g. "define: boilerplate", gives us the following list:



Standardized "fine-print" language in a contract or other agreement detailing terms and conditions.

www.onlinewbc.gov/docs/starting/glossary.html



A boilerplate document is created in word processing by assembling previously existing documents. Many routine business letters and contracts are assembled from boilerplate paragraphs.

www.oznet.ksu.edu/ed_asi490/Glossary/cgw.htm



Form language used in deeds, mortgages and other documents. Details can be added by individual parties.

www.lakeplacidrealestate.com/glossary.html



Standard language in a contract.

www.underdown.org/cigglossary.htm



Standard language that businesses routinely include in contracts. The other party to the agreement can sometimes negotiate to change or remove such provisions.

www.brownfieldscenter.org/big/glossary.shtml



The language section of a bill or public act. With regard to an appropriation bill or act, typically provides for legislative intent or further legal clarification of the line-item appropriations. Boilerplate can also refer to the standardized or pro forma language that is used at the front of the bill or statute.

www.michigan.gov/printerFriendly/0,1687,7-157--32835--,00.html



A term used to describe the standard terms and conditions on a purchase or other contract document.

elmo.shore.ctc.edu/jbaker/glossery.htm



Boilerplate is legal jargon for the form language used in deeds, mortgages and other documents. The boilerplate language is usually preprinted on the document itself; details are added by the individual parties.

www.kcbor.com/glossary_-_b.html



Reports, form letters, and other prewritten documents that can be coordinated with mailing lists and other variable information to produce personalized hard-copy output.

www.indstate.edu/cape/glossary.html



Standard and essential contract terminology and clauses that are not subject to frequent change. Use of the term can be dangerous because it may lull contract parties into thinking they need not read the clauses, assuming no changes from previous contracts, or assuming the data are not significant.

www.dhs.state.or.us/admin/ois/pmo/publications/pmo_glossary.html



Standard wording (for example, sentences or paragraphs in form letters or clauses in legal documents) that is held in storage. When needed, it can be used as is, with minor modification, or in combination with new material to produce tailor-made documents.

www.unm.edu/cirt/ais/docs/stdglossary.htm



Standard copy that may be inserted in reports, foundation proposals, and other documents since it is unchanging and generally timeless. Also refers to legal forms which attorneys may use with standard situations. Topic areas:Fundraising and Financial Sustainability

www.nonprofitbasics.org/TopicAreaGlossary.aspx



from m-w.com: syndicated material supplied especially to weekly newspapers in matrix or plate form standardized text formulaic or hackneyed language

www.viptx.net/orientation/glossary.html



A colloquialism, used to identify standard terms and conditions incorporated in solicitations, contracts, or purchase orders.

www.jblk.com/sam/frm_word.htm



A standard publishing contract, with no changes or addenda made by the writer or agent. The boilerplate should be considered a starting point only; usually changes will be made.

www.thescriptorium.net/glossary.html



A standard text component of a document that requires few or no changes.

www.carolla.com/glossary.html



the standard terms and conditions on a purchase order, agreement or contract

www.co.la.ca.us/doing_business/definitions.htm



Standard wording on mortgages and other documents.

www.brokersnyc.com/docs.cfm/BrokersOnly/CareerManagement/Glossary



sections of a proposal applicable to a variety of requests; e.g., organizational descriptions, professional resumes, etc.; often maintained by organizations submitting numerous proposals in order to reduce preparation time.

www.manchester.edu/Connect/Advance/Files/grant_glossary.htm



Text and/or graphics that appear in a report every time it is run. In some products this is called "constant" text or graphics.

otn.oracle.co.kr/docs/oracle78/reports25/bror2/glossary.htm



Standard clauses and requirements incorporated into contracts (bid forms and purchase orders), which are derived from laws, or administrative procedures of state government.

insider.dli.state.mt.us/purchasing/purc%20iii.htm



Language from a previous document that a writer includes in a new document. Writers use boilerplate both to save time and energy and to use language that has already been approved by the organization’s legal staff.

highered.mcgraw-hill.com/sites/0072469587/student_view0/glossary.html



Standard, non-controversial legal clauses, often required by regulatory agencies or state or federal law.

www.vedpuriswar.org/book2/glossary1.htm



Refers to publishers' standard contracts prior to any changes by an author or agent. Most publishers have a variety of boilerplate contracts to meet different needs. Boilerplates are always weighted in favor of the publisher and should be regarded by authors only as a starting point for hammering out agreeable terms.

wwws.htwk-leipzig.de/~cwittman/CWd_glossary_of_publishing_terms.htm



standard formulations uniformly found in certain types of legal documents or news stories

www.cogsci.princeton.edu/cgi-bin/webwn



thick plate iron used in the production of boilers

www.cogsci.princeton.edu/cgi-bin/webwn




But be careful using this feature. If you plug in

define: lawyer

or

define: professor

you will see some unusual definitions.

How Google will get around these jokester's definitions is another matter - depending on the algorithm they are using to try to create this online glossary.



This glossary feature is still quite limited.

Entering terms such as blawg and weblog gives zero results, although the term blog is defined.



The "define" feature in Google can be used to show very clearly that some aspects of "knowledge" and "communication" are relative to the content limitations on word-based expression.



We communicate by means of words, but these words often have no universal meaning and are "defined" in the brain of the reciever differently than they are defined in the brain of the sender, and the variance in definition is quickly seen when we look at the myriad definitions for commonly used terms.



Try:

define: law - (a seamless web - one of the first assignments that I give to law students in my classes is to write an essay on "what is law?", after all, it is their chosen field of study, and the responses are as varied as the personalities that write them)

define: democracy - (wide diversity of opinion)

define: government - (make sure you read this to the end, it contains some beauties)

define: politics - (this has some mean ones in it)

define: freedom - (there are some creative ones here)

define: norm - (not easy to define, but something the law deals with all the time)

define: opinion - (the law-related definitions tend to be inexact)

define: precedent - (make sure to read the one from the Devil's Dictionary)

define: purpose - (the best ones are at the end)

define: writing - (very weak list, but shows that writing is an artefact)

define: history - (some choice selections down the list)

define: religion - (a panoply of musings - note that the Oxford dictionary definition at the bottom of the list shows why we still need and use standard dictionaries - compare those definitions to what you otherwise read on that page)

define: God - (definitions found here are of course relevant to disputes about such things as the words "under God" in the Pledge of Allegiance - just what does the phrase mean?)

define: thought - (very few definitions, a rare commodity?) define: thinking fares no better

define: man - (oh dear, Google is lost here - the algorithm needs work)

define: woman - (an absolutely disastrous collection - if you did not already know what a woman was, would these definitions help you?)



As always, caveat emptor (see define: caveat emptor), which applies not only to physical goods we "buy" but also to what we "buy" as a matter of thought and ideas.



Google's new command define: will never replace the standard dictionaries - unless the standard dictionaries are themselves used as the principal online sources, but this new command does provide some interesting insights into what people are thinking and writing, and it is quite good fun.

LawSites, The Volokh Conspiracy and How to explain blawgs?


LawSites (Robert Ambrogi) writes :

"How to explain blawgs? 'Professorial behavior patterns.'

I missed Eugene Volokh's day 2 BloggerCon panel on blogs and the law, but Doug Simpson reports that Volokh, commenting on why lawyers blog, said the motive is largely not monetary. Rather, many law blogs are what he called 'prof blogs,' written by professors or folks with 'professorial behavior patterns.' Not sure that fully explains all the entries on Denise Howell's blawg list. I think the motive is, indeed, money for many lawyer bloggers. Not direct cash in the pocket, of course, but a payoff in greater exposure generally and greater credibility within a given field, leading somewhere down the line to more referrals, more clients and more -- yes -- money."




"Gee", as Prof. John Kaplan used to exclaim, using his favorite expression at Stanford Law School in my student days, "is that really true?"



Although few of us would doubt the general observation that mankind is a mercenary lot, I seriously doubt that "money" is the major impetus for blawging - yet - so I would give Eugene's explanation of "professorial behavior patterns" a good deal of credence.



It would in fact seem to me that profess-or-ship is the ultimate in "punditry" and that is why one of the meanings given to the word "professor" by the online American Heritage Dictionary of the English Language, Fourth Edition (2000), at bartleby.com is "one who professes".



The term "profess" in turn means "to affirm openly, declare or claim", "to make a pretense of, pretend", "to practice as a profession or claim knowledge of", "to teach as a professor" e.g. to "profess literature".



In fact, if in the full text search at Roget's Thesaurus we plug in the term "pundit", we get ONLY two entries returned, namely "scholar" and "lawyer".



I would call that the thesauric punditry double whammy on a professor of law particularly, or to put it more simply, "he can really not do otherwise than blog", it is in the nature of the "profess-ion".



Remember, the lawyers (i.e. the legal beagles or their comparables in any culture) run things, i.e. the temporal world - and I think this says something about the value, importance and application of blogging in the future. Could a popular "blogger" of today be a "President" tomorrow? Probably. That is not necessarily a "cash" objective.

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