Introduction
Thank you, Mr.
Chairman and Committee Members, for the opportunity to
speak to you today about an important issue affecting
Washington businesses and residents alike. My name is Ed
McNichol and I come to the Energy and Utilities Committee
seeking relief from the growing problem of unsolicited
commercial e-mail. I am the Digital Editing Specialist and
Webmaster at American Production Services, the Northwest's
largest video and audio production facility, with offices
in Seattle and Redmond. I am also the owner of my own firm,
EDcetera™, which provides high quality consulting services
to the video industry. In addition, I own and administer
the McNichol.com Internet domain. I am also a member of the
Coalition Against Unsolicited Commercial E-Mail, or CAUCE.
PROBLEM
In these capacities,
electronic mail is a mission critical component of the
communications aspects of these companies. I was recently
on assignment for my largest client, the Sony corporation
headquartered in Atsugi, Japan. I was in Detroit
supporting a NBA on TNT broadcast when I had occasion to
seek urgent support via electronic mail. When I went
to read the reply from the sustaining engineer, my in-box
was so clogged with junk e-mail that I could not open the
message I needed. This created a very real business
problem for me and kept me from performing my duties.
At APS, e-mail is used to receive and process customers
orders, as well as provide an important communications link
with our Satellite offices and roaming employees.
However, as the worldwide use of electronic mail has grown,
so has the problem of unsolicited commercial electronic
mail. This junk e-mail, or Spam as it has come to be known,
has exponentially grown to the point where it has become a
serious burden on my daily business. Two years ago, I met
with my legislators office and presented them with over 15
junk e-mail messages that I had received that very day. At
that time, it appeared that the Federal government would be
taking some action to address this problem. That obviously
has not happened.
It is clear that there are inherent problems with
unsolicited commercial e-mail. Primarily, these problems
are;
Cost-Shifting
Unsolicited
commercial e-mail senders shift the financial burden of
their messages to the recipients. It costs me money to
receive these messages. And a spammer can send several
hundred thousand e-mail messages per hour at little cost.
In the attached junk e-mail message titled "Bulk E-mail for
Profit", the sender is selling a computer program
(Floodgate) of which he brags, "Prepare a mailing of
50,000+ in less than a ½ hour". In an August 9, 1997, New
York Times article, one firm boasts of sending 25 million
unsolicited commercial messages every day!
An the largest national Internet Service Provider, America
Online, estimates that 30% of today's e-mail is
Spam. CompuServe, a large service provider, and
owners of Washington based Sprynet, has blocked over 1
billion messages in the last twelve months. These messages
cost CompuServe, and the end user, hard dollars in the
funds required to develop, implement and maintain this
filtering system. And still a percentage gets through to
the end user. This gives a good gauge to the scale of this
problem.
These messages extract a cost in terms of the monetary loss
experienced while the user is charged for connecting and
reading these messages. I pay to receive these
messages. This places the financial burden on the
recipient of these advertisements.
Waste of Resource
Not only do
these messages extract a financial cost from the recipient,
they also cause a significant drain on a precious common
resource, Internet bandwidth. While millions of Americans
have flocked to the Internet, some are now referring to it
as the "World Wide Wait". This is due in large part to the
tremendous amount of garbage that is being sent through the
network. The largest single Internet Service Provider in
America, America Online, has found that, of the 30 million
e-mail messages processed each day, on average 30% was
unsolicited commercial e-mail. The passage of every single
piece of junk e-mail through numerous servers causes a
system wide drag on the legitimate messages and information
being processed at the same time.
Fraud
The clear
majority of junk e-mail is in regards to shady and fringe
businesses. Most promote products such as pornographic web
sites, chain letters, and such. A prime example is the
attached e-mail titled "Make Money Fast…IT’S LEGAL TOO!!!".
This message is clearly a chain letter pyramid scheme and
is most likely in violation of state and federal statutes.
Most of these messages are sent using false "headers", the
Internets equivalent of a return address. If the recipient
replies to the original mail, that new message is
frequently sent either to an innocent victim or to a
non-existent address. This then results in system error
messages bouncing all about the net. And in most cases, the
unsolicited commercial messages appear with deceiving text
in the subject field. Topics such as "Hi There!",
"Information Request" and "Your Business Records" have been
used. This deceptive practice makes it virtually impossible
to discern junk e-mail from the messages critical to my
business. And most junk e-mails appear numerous times from
numerous senders. I have never received on of these
messages from IBM or Sears, nor do I know anyone who has.
Displacement of Normal
E-Mail
Unsolicited
Commercial E-mail delays the timely processing of
legitimate messages. Even if you aren’t personally
receiving these irritating messages, you can bet that your
use of the Internet is being slowed down as a result of
them. All Internet activities, from web browsing to file
downloads, can be hampered by the strain placed by the
millions of unsolicited commercial messages being
transmitted.
SOLUTION
The only clear
solution to this problem is effective legislation that
provides my business with real relief from this rapidly
escalating situation. And this solution is contained in the
excellent bill before you.
Present Bill
This bill would
relieve my company of the daily drain on our resources. It
specifically prohibits unsolicited commercial e-mail
messages, unless the sender has previous approval from the
recipient to send such a message. In that case, the bill
requires the sender to make it clear that the message is an
unsolicited commercial message by including the term
"advertisement" in the subject field.
Best of all, a violation of the act falls under the
consumer protection act, chapter 19.86 RCW. This allows the
actual victim to pursue the violator as provided for in
RCW. Further, the bill allows for Internet Service
Providers, who suffer greatly from these illegitimate
messages, to recover damages also.
Precedent
The
anti-Spamming measure is remarkably similar to the state
junk fax ban, RCW 80.36.540, which prohibits the
transmittal of unsolicited commercial faxes. This statute
has been in existence for some time and clearly works. And
in addition to the bill we are talking about today, there
are similar measures now in eleven other states.
There is also a Federal statute, 47USC Sec. 227 (b) (1)
(C), which makes it unlawful to send an unsolicited
advertisement to a telephone facsimile machine
Court Affirmation
While the
federal junk fax law has been challenged, the courts have
repeatedly upheld it. In fact, based on a Ninth Circuit
Court decision in Destination Ventures v. FCC (1995), there
is substantial government interest in protecting consumers
from having to bear the costs of third-party advertising.
In addition, the court also held that advertisers have no
right to turn consumers into a "captive audience" that is
"incapable of declining to receive a message." There are
also cases sited below in which the court upheld the rights
of individuals to be free from these messages.
ARGUMENTS AGAINST THE
BILL
While there is
no prominent organized opposition to this measure, large
bulk e-mailers, such as Cyber Promotions of New Jersey,
have long spoken against similar bills in other states. And
in a January 20, article in The Seattle Times, Gerard
Sheelan of the ACLU-Washington, said, "We are always wary
of the government setting out rules about when speech may
not happen."
First Amendment
Violation?
The greatest
concern in passing legislation of this type is infringing
on First Amendment rights. However, if you want to
advertise, you must pay the costs and not force those costs
onto others. The Federal Junk Fax Ban mentioned above was
challenged under this free speech pretense. Federal Judge
Stanley Sporkin, in Turner Broadcasting v. FCC said,
"[They] have come to court not because their freedom of
speech is seriously threatened but because their profits
are; to dress up their complaints in First Amendment garb
demeans the principles for which the First Amendment stands
and the protections it was designed to afford."
This is not a ban on unsolicited mail. Unsolicited
Commercial E-mail will be allowed, but only if the junk
e-mailers bear the minimal burden of making sure their
messages reach only people who have expressly agreed to
bear the costs. Many large corporations, including
Microsoft Corporation, currently employ this policy, and it
clearly works. There is even case history where the courts
have held that such interference is a violation of an
individuals privacy. In Rowan v. U.S. Post Office, a
decision relating to junk postal mail, the court held:
"Nothing in the Constitution compels us to listen to or
view any unwanted communication, whatever its merit…We
therefore categorically reject the argument that a vendor
has the right under the Constitution or otherwise to send
unwanted material into the home of another…We repeat, the
right of a mailer stops at the outer boundary of every
person's domain."
This bill clearly does not infringe on any First Amendment
rights. It merely asks advertisers to pay the costs of
their messages and ensure that these messages are directed
to those who have specifically asked to receive them. The
First Amendment guarantees no person the right to hijack my
private business tool and subvert it into a public forum
for their financial gain, in my home and at my expense.
Unlimited Access Costs
Nothing?
It is not always
apparent to the end user, much less the junk e-mailer, that
there are many different places along the process of
transmitting and delivering e-mail where costs are
incurred. For all of the separate servers through which
these items pass, they create a "drag" on the timely
process of important and legitimate mail. This overload of
mail causes numerous problems for Internet Service
Providers, who are forced to make technical investments to
handle this increased load. The costs for these
improvements are then passed directly on to the consumer.
While some compare junk e-mail to junk postal mail, this
comparison would be valid only if junk postal mail arrived
postage due. There is no direct cost placed on the receiver
of junk postal mail. The same holds true of telephone
solicitations. If these were collect calls, where the
receiver had no option but to pay, it could then be
compared to junk e-mail.
Also, many people still use accounts which do not include
unlimited use. Sprynet, an Internet Service Provider
located in Bellevue, estimates that 40% of users do not
have unlimited access accounts. These individuals and
companies are charged for access by the minute, and there
very much is a direct cost associated with these
messages. And a Gardner report estimates that 70% of
users by 2001 will pay based on usage.
Filtering Programs?
There is some
limited technology in development that allows for these
messages to be filtered out. However, this method is not
foolproof and the Spammers have cleverly eluded these
programs to date. Also, the filtering programs create a
huge burden on the servers which run them. This forces
Internet Service Provides to increase server capacity, a
cost which is then passed on to the end user. And still the
junk e-mail gets through. And what messages do get filtered
have already done their damage via the drag they have
created on Internet bandwidth.
Just Delete It?
The weakest
argument by far is, "Why not just delete the message when
you get it?" The simple answer is, by that time I’ve
already paid for it. I do delete these messages. The time I
spend online reading the messages and determining which are
Spam costs me real money. And with my unlimited use
accounts, it takes time to review each of the messages in
my mailbox, merely to determine which are important and
which are junk. It can also take a long time to download
the larger messages, only to then delete them. And by that
point, the damage has already been done.
SUMMARY
Electronic mail is a
critical communication method for many Washington
businesses. Unsolicited commercial messages are choking
this business lifeline. This bill provides an ideal
solution to this growing problem.
As Vint Cerf, Senior Vice President at MCI and acknowledged
"Father of the Internet" said,
"Spamming is the scourge of electronic mail and newsgroups
on the Internet. It can seriously interfere with the
operation of public services, to say nothing of the effect
it may have on an individual's e-mail system…Spammers are,
in effect, taking resources away from users and service
suppliers without compensation and without authorization."
If you do not pass this bill today, how bad will this
problem have to get before action is taken? At the rate
unsolicited commercial e-mail is growing, we don't have any
time to waste. I urge your approval of this important bill.
I thank the Committee for the opportunity to testify
today.