Not a single United States senator voted against the anti-spam bill wending its way toward the White House. In the House of Representatives, 392 members clamored forth to support the nation's first legislation to combat unwanted, unsolicited commercial e-mail.
Only five said no, with two of those coming from technology-savvy Silicon Valley lawmakers.
Reps. Zoe Lofgren (D.-CA) and Mike Honda (D.-CA) said they voted against the landmark anti-spam bill because the legislation is simply not tough enough and that consumers deserve better. Both said they support the stricter standards of their state's recently passed anti-spam law, an opt-in measure that allows individual consumers to sue spammers.
The California law, which is set to take effect in January, and anti-spam bills in 35 other states are pre-empted by the new federal law, which will soon be presented to President Bush for his promised signature by the end of the year.
"This legislation is a step in the right direction for the country, but because of its provision pre-empting the new California State law, I was unable to vote for it Saturday morning," Lofgren said in a statement. "As a Californian, I felt an obligation to defend the legislative work of my state. And, while Congress has spent literally years grappling with the definition of spam, too little time has been spent considering enforcement of whatever framework is adopted."
E-mail marketers and publishers pushed hard for one national opt-out standard that would trump existing state laws, particularly the California legislation that they claim effectively bans ad-supported e-mail newsletters.
Lofgren, whose home district includes San Jose, took an active and leading interest in getting some of the stronger California language in the national anti-spam bill. She sponsored the most aggressive of the two competing House bills, calling for congressionally mandated subject line language, such as ADV for advertising, for commercial e-mail and the consumers' right to individually sue spammers.
Opt-in was never a serious consideration for the Congress and its lobbyist patrons. As early as January, opt-out was the standard agreed to by all the stakeholders in the bill, save for consumer groups, who privately admitted even then opt-in was overreaching.
Lofgren also wanted language in the law to establish a reward fund for the first person to track down a spammer who violates labeling or opt-out requirements. Lofgren said she based her bounty bill on an idea by Stanford law professor Larry Lessig, who said at the time he'd quit his job if the idea didn't work. Now, he won't have to run that risk.
Under the final bill language, e-mail marketers and publishers, along with political and charitable organizations, will still be allowed to send unsolicited e-mail to consumers as long as the message contains an opt-out mechanism, a valid subject line indicating it is an advertisement and the legitimate physical address of the mailer. Actual subject line language is left to the industry.
Individuals are barred from suing spammers, a right reserved for Internet service providers and federal, state and local law enforcement agencies.
"On the positive side, we can build upon this effort and hopefully add effective enforcement mechanisms in the future, should this federal legislative effort prove ineffective," Lofgren said.
Honda, the other Silicon Valley lawmaker who voted against the bill, also has been active in technology legislation this year, successfully co-sponsoring a bill laying out $3.7 billion over the next four years for nanotechnology research and development.
"The bill doesn't go far enough in protecting consumers. We are strong supporters of the California law. As a matter of consumer protection, the federal law is not as tough," Jay Staunton, Honda's press secretary said. "We clearly recognize the need for anti-spam legislation, but what they passed will not significantly reduce the amount of spam."
Staunton added, "We feel individuals should have the individual right of action against spammers. He [Honda] is confident the voters will see through this vote. The California law, the most far reaching in the United States, supports both opt-in procedures and private right of action."
Others voting against the bill were Dennis Kucinich (D.-OH), Ron Paul (R.-TX) and Sheila Jackson-Lee (D.-TX).
A spokesperson for Kucinich's office said the Ohio congressman and presidential candidate also voted against the bill because it pre-empted state laws.
"The congressman backs the intent of the bill and applauds its efforts to block the unwanted and unsolicited e-mails that are flooding email accounts," said Kucinich Press Secretary Doug Gordon. "But, he could not support this bill because it pre-empts some state statutes that go further in protecting consumers from spam. This bill forces consumers to police their own e-mail accounts and engage in an 'opt out' process for every solicitor sending them e-mail."
In addition, Gordon said, "This opt-out legal framework, where marketers must be asked to stop, was enacted in California and deemed a failure. This is why, the California state legislature recently passed an opt-in law, were marketers must have prior permission."
Jeff Deist, a spokesperson for Paul, who first ran for Congress as a Libertarian, said "As a general principle, the congressman opposes Internet regulation in general. We believe its sets a dangerous precedent. Historically, the Internet has been regulation free. Back in the 1990's when the boom was on, the industry didn't want any regulations. Now, it is a little more cozy with Washington."
Calls to Jackon-Lee's office for comment were not returned.