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Spamhaus Position on CAN-SPAM Act of 2003
Category: Policy
Statement Ref: S05
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As an international organization, but one which is based in the United Kingdom where the sending of Unsolicited Bulk Email is now illegal, Spamhaus sees the introduction of the CAN-SPAM Act of 2003 (S.877/HR 2214) as a serious failure of the United States government to understand the Spam problem.
CAN-SPAM Act of 2003 (S.877/HR 2214) attempts to regulate rather than ban the practice of spamming. We believe this is a serious mistake and that CAN-SPAM will succeed only in increasing spam volumes and the numbers of spammers. Additionally, by signalling to the world that spamming is now legal in the USA, we believe that the United States is inviting a tsunami of spam from Asia and South America.
CAN-SPAM essentially requires that American citizens read through and respond to every spam they receive in order to 'opt-out' of endless spammers' lists which they did not opt-in to in the first place. There are no prizes for guessing that the CAN-SPAM Act was heavily pushed through Congress by the Direct Marketing Association.
We welcome the criminalization by CAN-SPAM of spammers using 3rd party exploits including open relays/proxies, in particular as it applies to states such as Florida which previously had no anti-spam law. Although many spam gangs pretend to operate offshore to circumvent laws, we welcome that the bill applies both to spammers and those who hire spammers, making any person in the U.S. who hires an offshore spammer criminally liable under CAN-SPAM. However we will be very surprised if this part of CAN-SPAM is ever enforced.
We also welcome that the bill asserts no legal effect on Internet Service Providers rights to reject unwelcome email traffic, implement and enforce any spam blocking or email service policy they see fit. CAN-SPAM in this respect specifically permits the filtering of spam.
Spamhaus defines 'Spam' as Unsolicited Bulk Email, and therefore 'Spammers' as senders of Unsolicited Bulk Email. Whether the sending of Unsolicited Bulk Email is legal or not in any particular jurisdiction, the sending of Unsolicited Bulk Email is against Spamhaus Policy. Therefore CAN-SPAM puts all senders of Unsolicited Bulk Email in a predicament: If spammers send out Unsolicited Bulk Email through 3rd party exploits or use services of offshore spammers they are liable under U.S. law. To comply with U.S. law they now must send the spam directly from their own servers. But sending Unsolicited Bulk Email from their own servers means those servers will be identified and blocked as spam-sources by most networks, especially by those using the Spamhaus Block List (SBL) which specifically identifies static spam-sources.
The reality however is that CAN-SPAM makes the already-illegal practice of fraudulent spamming, illegal again, as if it wasn't already. Nothing yet has deterred spammers from spamming illegally, indeed 65% of current spam is sent illegally through compromised virus-infected computers.
At best, CAN-SPAM will convert small amounts of illegal spammers over to spamming legally until they can see how ineffective enforcement is, CAN-SPAM will invite thousands of new spammers to swell the ranks of existing spammers all "spamming legally" utilizing the many obvious loopholes, CAN-SPAM will substantially increase spam volumes in 2004 and will ultimately unquestionably have to be countered by a new U.S. Federal law to finally and properly ban spam.
Steve Linford
The Spamhaus Project
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