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More on UN spam meeting and junk fax laws

Posted at 2004-07-21 00:10:26 by Declan McCullagh
in Politech category "spam"

Keep reading for some replies to the recent Politech message about the U.N. and spam and junk fax laws.

-------- Original Message --------
Subject: Re: [Politech] Report from UN spam meeting in Geneva, from William Drake [sp]
Date: Sat, 17 Jul 2004 09:01:35 -0700
From: James J. Lippard <lippard@discord.org>
Organization: Legion of Dynamic Discord
To: William Drake <wdrake@ictsd.ch>
CC: declan@well.com
References: <40F4AE82.80603@well.com>

On Tue, Jul 13, 2004 at 11:54:42PM -0400, Declan McCullagh wrote:

> -------- Original Message --------
> Subject: Re: U.N. bureaucrats want to help you reduce your spam
> Date: Tue, 13 Jul 2004 16:54:32 +0200
> From: William Drake <wdrake@ictsd.ch>
> To: <declan@well.com>
>
[...]

> ITU taking on new functions, even when this could make sense (BTW, I'm told
> that the direct marketers and the Republicans on the hill are currently
> pushing through legislation to effectively repeal the legal ban on junk
> fax---anyone surprised that CAN SPAM was a sham?).

This is not entirely accurate.  There was a major FCC rule change in
July 2003 (which included implementation of rules for the national Do
Not Call list and Caller ID requirements for telemarketers).  One
provision of the new rules was a strengthened restriction on faxing
that requires advance *written* consent on faxing, even where there is
an existing business relationship.  It is that written prior consent
requirement that is being suggested for repeal, on the grounds that it
is an onerous restriction on legitimate (non-junk) faxing.

In August 2003, the FCC extended the compliance date for the written
consent rule to January 1, 2005, so it has not yet gone into effect
(and has never been in effect to date).

The current bills in Congress codify the current rules on unsolicited
commercial faxes, allowing them to be sent to those with whom the
sender has an existing business relationship--they are a maintenance
of the status quo, not a repeal of the ban on junk faxing.

-- 
Jim Lippard        lippard@discord.org       http://www.discord.org/
GPG Key ID: 0xF8D42CFE

-------- Original Message --------
Subject: RE: [Politech] Report from UN spam meeting in Geneva, from William Drake [sp]
Date: Sat, 17 Jul 2004 18:26:35 +0200
From: William Drake <wdrake@ictsd.ch>
To: James J. Lippard <lippard@discord.org>
CC: <declan@well.com>, <mayor@trumansburg.ny.us>

Hi Jim,

Hmmm....I guess I should offer two clarifications.  First, the operative
phrase in my comment was, "I'm told."  I live in Geneva and have not
followed the US legislation, I was only mentioning in passing something
someone said to me at lunch during the ITU meeting which seemed to resonate
with wider trends.  Second, my message wasn't a fact checked press report
(I'm not a reporter), it was actually just a note I sent to group of
Internet governance junkies, which then got forwarded to various lists.
Hence, when Declan mentioned the ITU spam conference on his and said he
didn't know what'd gone on I thought, what the hell, it's already floating
around and sent it along to him.

It's entirely possible I misunderstood a conversation in a crowded
cafeteria, but I thought the pending legislation would require people
generally to opt out, rather than repealing just an opt in for existing
business relationships.  Perhaps the Mayor of Trumansburg can clarify...?

Best,

Bill

-------- Original Message --------
Subject: Re: [Politech] Report from UN spam meeting in Geneva, from William Drake [sp]
Date: Sat, 17 Jul 2004 10:42:58 -0700
From: James J. Lippard <lippard@discord.org>
Organization: Legion of Dynamic Discord
To: William Drake <wdrake@ictsd.ch>
CC: declan@well.com, mayor@trumansburg.ny.us
References: <20040717160135.GB8941@discord.org> <MABBIHAAPBEEGMLBDEGOEEHIDHAA.wdrake@ictsd.ch>

Understood.

The current rules require opt-out for those with an existing business
relationship, opt-in for all others, and that opt-in need not be in
writing.  The pending rules require opt-in in writing for all.  The
bills that I am aware of require opt-out for EBR, opt-in for all
others, with no requirement that opt-in be in writing.

Another relaxation of the pending rules is the removal of timelimits
on EBR.  The July 2003 rules created a 3-mo EBR for inquiries and an
18-mo EBR for purchases of products or services; the Upton Junk Fax
Prevention Act of 2004 (HR 4600) has no time limit on the EBR--it exists
until explicitly severed by one party.

The best argument against changing the rules is that fax broadcasting
companies such as Fax.com have been known to fabricate EBR claims.
I'm not sure that a written requirement helps that a whole lot, since
some of these sleazy companies have even fabricated written
documentation (such as Impressa of Tempe, Arizona, which has produced
faked "sweepstakes entry forms" to justify claims of EBR for prerecorded
telemarketing).

If the Mayor has any information about bill content which involves yet
further steps backward, I would be most interested.

Thanks.

-- 
Jim Lippard        lippard@discord.org       http://www.discord.org/
GPG Key ID: 0xF8D42CFE

-------- Original Message --------
Subject: Re: [Politech] Report from UN spam meeting in Geneva, from William Drake [sp]
Date: 17 Jul 2004 14:35:15 -0400
From: John R Levine <johnl@iecc.com>
To: James J. Lippard <lippard@discord.org>
CC: William Drake <wdrake@ictsd.ch>, declan@well.com <declan@well.com>
References: <20040717160135.GB8941@discord.org> <MABBIHAAPBEEGMLBDEGOEEHIDHAA.wdrake@ictsd.ch> <20040717174258.GA25875@discord.org>

> The current rules require opt-out for those with an existing business
> relationship, opt-in for all others, and that opt-in need not be in
> writing.  The pending rules require opt-in in writing for all.  The
> bills that I am aware of require opt-out for EBR, opt-in for all
> others, with no requirement that opt-in be in writing.

The current law is opt-in for everyone.  The FCC's current rules make an
opt-out exception for EBR, even though there's no support in the law for
that.  The new FCC rules match the law and require written notice to
opt-in.

The original version of HR 4600 completely changed the sense of the law to
make it opt-out for everyone, but I see that the version reported out of
committee changed that so that it codifies what the current FCC rules say.
The two companion bills in the Senate S 2569 and S 2603 appear on a quick
reading to match the revised House bill.

The current version of the House bill is considerably less obnoxious than
the original.  Any idea where the original language came from?

> The best argument against changing the rules is that fax broadcasting
> companies such as Fax.com have been known to fabricate EBR claims.

Agreed.  I think the theory is that it's considerably easier to catch a
bogus written request than a bogus Charles Martin phone log.

Regards,
John Levine, johnl@iecc.com, Primary Perpetrator of "The Internet for Dummies",
Information Superhighwayman wanna-be, http://iecc.com/johnl, Mayor
<pre>

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