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Spam and the Law

Ok. You've just received some email. It looks like spam to you. But you are puzzled. Right there in the email it cites S.1618 Title III. Or maybe it cites H.R. 4176. It claims the spam is legal.

So, do you want to know about S.1618 Title III and H.R. 4176?

This page will tell you all about it.

The Disclaimer

If you are like many people the email you received says something like:

In accordance with Bill S.1618 Title III passed by the 105th U. S. Congress, this letter can not be considered spam as long as we include: (1) Contact information and (2) a way to be removed from future mailings. To remove yourself email us at remove@somebogusdomain.com and type "Remove" in the "subject" line.

It might even be threatening:

Under the provisions of U. S. Bill S. 1618 Title III, this letter is not spam and no further action can be taken by the reader against this company/person. Any report of this letter as spam to any independent agency or site is a violation of this law and will be dealt with promptly.

Because of the citation, because of the language, the reader (you?) is easily persuaded that this must be true.

Alas, it is completely bogus.

Well, perhaps that is not fair. It is completely bogus but based on a smidgen of truth.

S.1618 Title III

It turns out that there was a S.1618 titled The Telephone Slamming Bill of 1998. The primary purpose of that bill was to address telephone slamming: changing your long distance provider without your permission.

While that bill was being considered, Senator Frank Murkowski submitted this Title III amendment:

    Title III: Spamming - Requires a person who transmits an unsolicited commercial electronic mail message to include at the beginning of the body of the message: (1) the name, physical address, electronic mail address, and telephone number of the person who initiates transmission of the message or who created the content of it; and (2) a statement that further transmissions of such mail to the recipient by the person may be stopped at no cost to the recipient by sending a reply to the originating electronic mail address with the word "remove" in the subject line.

    (Sec. 302) empowers the Federal Trade Commission (FTC) with regulatory authority over such unsolicited electronic mail, including authority to conduct investigations, commence civil actions against individuals, and impose fines, penalties, and injunctions. Requires the FTC to take appropriate action within two years after the transmission of such electronic mail.

    (Sec. 303) Authorizes a State to bring a civil action on behalf of its residents against individuals or entities transmitting electronic mail in violation of this Act. Requires such State to notify the FTC of such action.

    (Sec. 304) States that this Act shall not apply to an electronic mail transmission by an interactive computer service provider unless the provider initiates the transmission or the transmission is not made to its own customers.

    Authorizes actions by such providers to enforce the sanctions under this Act. Requires such action within one year after receipt of the transmission.

    (Sec. 305) Requires a person who receives from any other person an electronic mail message requesting the termination of further transmission of commercial electronic mail to cease such transmissions to the individual. States that a person who secures a good or service from, or otherwise responds electronically to, an offer of unsolicited commercial electronic mail shall be deemed to have authorized such transmission.

Senate and House

Now that sounds a lot like what the email notice was making reference too.

However, it takes both the House and the Senate to make a law. The House was working on its own version of a telephone slamming bill: H.R.3888.

Now H.R.3888 had some "pro-spamming" language in it in Section 301. However, once the public got wind of it the public flooded state and federal offices objecting to the proposal.

So, the House completely removed that portion of the bill.

Instead, H.R.3888 introduced Section 201 that completely turned the tables:

    Section 201 sets forth a sense of the Congress resolution regarding the practice of sending consumers unsolicited commercial electronic mail (or "e-mail"), often in bulk. This practice, commonly referred to as "spamming," has been a serious concern to the Committee because spam congests the Internet and other electronic networks. In addition, some Internet Service Providers (ISPs) charge users based on time spent on using their network. Time spent by consumers deleting and preventing spam costs consumers money.

    Thus, the Committee, for now, seeks to reduce the practice of spamming without imposing government mandates on the Internet and other electronic networks. Accordingly, the sense of Congress outlined in section 201 calls on the private sector to adopt, implement, and enforce measures that prevent and deter spam. The Committee expects that the private sector will view Congress' charge as a useful opportunity to reduce spam voluntarily.

The House passed H.R.3888 on 10/21/98.

The Rest of the Story

However it takes both the House and the Senate to make a law.

The House never approved the Senate bill. And, similarly, the Senate never approved the House bill. Neither one became law.

But, the fact that it is not law doesn't stop spammers from citing the bill as justification for what they are doing.

So many spammers cite the bill that the Spam Glossary even includes a definition for Murk:

Murk

(n.) A disclaimer at the end of an email spam assuring you that the spam complies with Bill S.1618 which makes the legal. Also known as a "Murkogram". (v.) The act of sending spam containing a Murkogram.

The term comes from Frank Murkowski (R-AK), the senator who wrote S.1618 which would have made spam legal provided it followed certain rules. In particular, to be legal under S.1618, the spam must contain full contact info at the start and make no attempt at hiding its origin.

There are three problems however: First, S.1618 was never passed. Second, S.1618 would not actually have made spam legal, it would have made certain kinds of spam illegal. Finally, most spam in fact, actually violates the provisions of S.1618.

Thus, a Murk disclaimer serves as a sure sign that the message is spam, and that the sender knew they were doing something wrong.


H.R. 4176

In June 2002 I noticed email that cited H.R. 4176. It said.

This message is being sent to you in compliance with the Federal legislation for commercial e-mail (H.R.4176 - 101).

So I wondered about H.R. 4176.

A quick search disclosed:

  • It was introduced on 25.Jun.1998 by Rep. Ed Markey (D-Mass.)
     
  • It deals with spamming, plus "slamming" (changing a customer's long distance carrier without authorization) and "cramming" (adding telephone line line services like voice mail without authorization).
     
  • It does not do much about spam
     
  • And, it died at the end of the 105th Congress in 1998.

So, as far as I can tell, references to H.R. 4176 are just another example of murk.


More Information

Southwestern Bell Spam FAQSouthwestern Bell Spam FAQ: SW Bell's page on the subject of spam and S.1618 and H.R.3888.

Spam GlossarySpam Glossary: Who would have thought that a topic like spam would need its own glossary!

Wired (30.Jul.1998), Wired (30.Jul.1998) , "Pro-Spam Bill Derailed": How public email killed a pro-spam law.

Coalition Against Unsoliced Commercial Email: H.R. 4176Coalition Against Unsoliced Commercial Email: H.R. 4176: This page on the CAUCE site provides some background on H.R. 4176.

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