President Bush recently signed into law the CAN-SPAM bill — the first federal attempt to curtail unsolicited commercial email.  Many supporters of the bill claim it will be a significant weapon in the war on spam.  As a technology professional who has been dealing with the growing onslaught for years, I beg to differ.

After more than six years of exploring the idea of a federal spam law, Congress finally came up with what they believe to be the solution.  I see it as a first step — a law with no teeth to accomplish what it was meant to do.

When the new law takes effect, it defines how companies can communicate with people they know and people they don't know.  Falsifying email headers is punishable with prison terms.  Sending sexually-oriented email without proper labeling can also land you in the big house.  Oh, and most interestingly, the law grants the FTC new enforcement authority and the right to establish a national "do not email" list similar to the unbelievable popular "do not call" list for telemarketers.

All of that sounds good, doesn't it?  As you were told as a child, not everything is as it seems.

CAN-SPAM is unlikely to demonstrate any noticeable decline in spam for email users when it goes into effect on January 1, 2004.

It legalizes (yes, I said legalizes) sending non-fraudulent spam, so you can be inundated with junk email so long as it's not sent using forged email headers.

The law does away with the state laws governing spam — many of which are far more stringent and protective of the consumer.

CAN-SPAM outlines an "opt-out" approach to spam rather than "opt-in."  The difference is significant.  In an "opt-in" system, spammers cannot send junk email to you unless you have specifically requested it.  On the other hand, the "opt-out" system requires that you the consumer pursue the spammer in order to be removed from their marketing list.  It's like saying identify theft is OK unless you ask the thief not to steal your identity.  Is it just me or does that sound entirely backward?

Although the law forces spammers to let recipients unsubscribe from their list, it doesn't say anything about them having to make it easy.  They don't have to offer an obvious click-to-unsubscribe link or reply-to-unsubscribe functionality.  Instead, CAN-SPAM will let them use any "Internet-based mechanism," prompting complaints that an unsubscribe feature could be buried in a Web site clogged with pop-ups.

It prohibits recipients from suing spammers, even if they are repeatedly and maliciously spammed.

The law imposes no labeling requirement on email unless it is sexually explicit.  Currently at least 15 states require "ADV:" or a similar label on all unsolicited commercial email.  Because CAN-SPAM would zap those laws and includes no labeling requirement of its own, spammers in those states could no longer be sued if they chose not to label.

As is typical (and exactly the same as the telemarketing "do not call" registry), the law doesn't regulate spam from political, religious or nonprofit groups.  No other antispam law in the United States appears to do this either, primarily because of questions about whether levying such regulations on noncommercial speech would jibe with the First Amendment's guarantee of freedom of expression.  Also, politicians sometimes engage in spam themselves and prefer to keep their options open.

Analysts and spam-fighting companies have warned that CAN-SPAM could lead to even more unsolicited commercial email.  MessageLabs predicts that it "could increase already growing volumes of spam and adversely affect consumers and businesses."  Gartner warns spam would likely worsen despite the existence of a federal law.

Ray Everett-Church, a lawyer at antispam firm ePrivacyGroup.com, says that even with the FTC and state attorneys general, there is not "enough enforcement to make spammers think twice about engaging in the practice."

Everett-Church and other spam opponents have said that, because CAN-SPAM will legalize nonfraudulent spam, every business in the United States could send an unspecified amount of unsolicited email repeatedly, until the recipient asks to be removed.  The Small Business Administration says there are 22.9 million small businesses in the country, and each one would be able to take advantage of this new legal right.

California Sen. Debra Bowen, a Democrat who supported her state's legislation, said in a statement on Dec. 8 that CAN-SPAM "doesn't can spam, it gives it the congressional seal of approval…  An advertiser's First Amendment right to free speech doesn't trump a person's basic right to be left alone.  Spam isn't legitimate advertising and it's not free speech."

Tim Muris, the chairman of the Federal Trade Commission and a veteran of the spam wars, has been warning since the summer that CAN-SPAM might do more harm than good.  Instead of helping, Muris said, the measure "could actually be harmful" to the FTC's ongoing efforts to sue spammers.

In a speech in August, Muris warned that under CAN-SPAM, "the FTC would have to prove that the seller (who hires a spammer to advertise a product or service) knew, or consciously avoided knowing, that the third-party mailer intended to violate the law.  This standard requires proof of both the seller's and spammer's level of knowledge…  These requirements to prove intent pose a serious hurdle that we do not have to meet to obtain an injunction under our current jurisdiction."

The National Association of Attorneys General, which would also be charged with enforcing CAN-SPAM, is more blunt.  In November, the group sent a letter to Congress that warned: "The bill creates so many loopholes, exceptions, and high standards of proof, that it provides minimal consumer protections and creates too many burdens for effective enforcement…  We respectfully request that you not move forward…"

In addition to all of these issues, the law has no jurisdiction over spam sent from other countries.  I personally receive quite a bit of junk mail sent from China, Canada and Brazil (among many other countries), but this law will do nothing to curtail any of that.  That is a problem with many things other than spam, however, and will require a significant catalyst to get the world community to work together on the problem.

When Rep. John Dingell, D-Mich., predicted in November that "it is quite possible that we will have to revisit this matter again," he was very much the prognosticator of the day.  CAN-SPAM was well-intentioned but poorly designed.  I believe its impact on spam will be negligible at best.