Re: Rotenberg as the Uber Enemy

["Robert A. Costner" <pooh@efga.org>]

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Myself, and EFGA supports no anti-spam law at this time, nor have we suggested 
the world needs one.  Over the last year we have repeatedly said that existing 
laws may prove to be sufficent.  What is clear is that there has been little 
attempt at using today's laws against spam and failing.  If EFGA has a 
position, it is that first the current laws should be tested against spam.  No 
new laws should be proposed until today's laws can be shown to be useless 
against the problem.

To the contrary, Cyberpromotions has been to court five times, and has lost 
five times.  These are not internet issues as much as they are fraud, consumer 
protection, and commerce issues.  Education of applicability of existing laws 
may be more effective than new laws.

New laws are being proposed.  And I feel comfortable commenting on the faults 
of a law, or of it's languge.  I can suggest what is wrong with a law, or what 
it lacks without supporting a flawed bill.

  DATA GATHERING

The original issue is one of data collection.  For many, this is the opt-in, 
opt-out argument.  For others it is adherence to a convention such as the 
robots.txt file found on web pages.  While there is nothing wrong with data 
harvesting in it's self, what one does with the info may be called into 
question.

The currently proposed bills look at various areas.

  1.  Identification
  2.  Content
  3.  Data Collection procedures
  4.  Tonnage/automated processing

Data Collection procedures may be less restrictive than identification 
requirements, or content bans.

There is a law precedent in the Telephone Consumer Protection Act (TCPA) of 
1991 to handle each of these issues.  For data collection, the TCPA requires a 
removal database be maintained and an opt-out strategy be employed.  One of 
the largest problems with "spam" is that the data collection strategies 
employed today are deceptive, fraudulent, and do not come close to fitting the 
model carefully considered in the TCPA.

The reason the TCPA is carefully considered is that once the law allowed for 
the promulgation of rules, the FCC had a series of public comment periods and 
promoted rules that highly favored privacy while trying to balance the fair 
practices of telemarketers.  Unfortunately, with spam, most spammers do not 
have "fair practices".

If is highly likely that the spam question could be quickly addressed and more 
clearly defined without new laws simply by a comment period and the 
promulgation of new rules.

Additional comments after Tim's quote....

At 09:28 AM 5/31/97 -0700, Tim May wrote:
>If it is "ILLEGAL" (your emphasis) for someone to call me on the phone for
>spamming, why then do I get so many such calls? Why aren't the prisons full?
>
>(Answer: Because it is NOT illegal for people to call me, or for me to call
>others, or for me to even call thousands of others. True, it is possible
>for me (I disagree with these laws, though, and cite the First again) for
>me to _ask_ that they not call me. Maybe even jump through hoops and get an
>injunction. )
>
>There are laws on the books which prohibit fully automated calls with no
>humans in the loop, but these are easily bypassed. (E.g., the boiler-room
>minimum wage employees in Detroit and Chicago who pick up the phone several
>seconds after I have picked up and then start a barely understandable
>spiel...I've prettty much taken to hanging up if no human voice appears
>within the first couple of seconds, as I know I am being handed off to the
>next available "human.")

Well, prisons *are* full.  Many of the inmates are telemarketers.  But this is 
not because of telemarketing laws.  You are confusing "illegal" with 
"criminal".  The laws we refer to are civil law, not criminal law.  47 USC 227 
is a federal civil law.  It also allows for state Attorney Generals to file 
civil suits on behalf of it's citizens.  This, if not taken to extreme, is a 
proper function of gov't.  To protect citizens from that which they cannot 
protect themselves.

Why do you get such calls?  The existing laws not only apply to fully 
automatic calls, but predictive dialing systems such as you mention and pure 
manual voice calls.  I cannot answer why you get the calls.  Perhaps you have 
not requested to be in the national "don't call me database".  Perhaps your 
callers just use illegal data collection procedures.  I'll summarize some of 
the law to you.  The Telephone Consumer Protection Act (TCPA) of 1991 made 
effective December 1992 the following:

1.  Calls only allowed 8am to 9pm
2.  Lists must be maintained of "do not want to be called"
3.  Telemarketers must identify themselves - address & phone number
4.  Employees must know rules & know how to use remove list.

Additional info can be found at 
http://www.fcc.gov/Bureaus/Common_Carrier/Orders/1995/fcc95310.txt

Quote from the Act:  
    Because unrestricted telemarketing can be an invasion of 
    consumer privacy, and even a risk to public safety, Congress
    found that a federal law is necessary to control 
    telemarketing practices.

SPAM vs TELEMARKETING

A telemarketing operation has a high level of entry.  Not that high, but phone 
lines, desks, office space, employees. etc must all be provisioned and paid 
for.  The level of entry for being a spammer is much, much lower.  For some it 
may be a dedicated connection, but millions of spams can still be sent with a 
dial-up account.  Accordingly, EFGA sees that the number of spammers could 
grow to be far more than the number of telemarketers.  Easily a figure could 
be reached that ten times more spammers could start a business than the number 
of telemarketers.

In 1990, more than 30,000 telemarketing operations employed over 18 million 
Americans.  Easily we could see over 300K spam operators in business, 
employing less than one million people.  Each of these individual spammers 
could be sending out daily spams.  Many of them would be able to reach a 
significant portion of the internet users on a daily basis.

At 09:28 AM 5/31/97 -0700, Tim May wrote:
>Your point being?
>
>Any laws forbidding spam generation in the U.S. will simply (or already)
>move the spam-originating sites offshore. Then what happens?

As long as the companies who are advertising have US offices, the offshore 
factor will not matter.  Existing fax precedent makes the advertiser the one 
ultimately responsible for the ad.


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  -- Robert Costner                  Phone: (770) 512-8746
     Electronic Frontiers Georgia    mailto:pooh@efga.org  
     http://www.efga.org/            run PGP 5.0 for my public key