John McCain

Mr. McCAIN

Mr. McCAIN. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. McCAIN. Madam President, this amendment by Senators Santorum and Enzi requires warning labels on sexually explicit commercial e-mail to regulate interstate commerce by imposing limitations and penalties on the transmission of unsolicited commercial electronic mail via the Internet. Basically, this amendment says no person may initiate or affect interstate commerce the transmission, to a protected computer, of any unsolicited commercial electronic mail message that includes sexually oriented material and fail to include in the subject heading for the electronic mail message the marks or notices prescribed by the Commission, or fail to provide that the matter in the message that is initially viewable to the recipient, when the message is opened by any recipient, and absent any further actions by the recipient, includes only to the extent required or authorized pursuant to any such marks or notices; the information required to be included in the message is clear. This amendment also prescribes that not later than 120 days after the date of the enactment of this act, the Commission, the Federal Trade Commission, in consultation with the Attorney General, shall prescribe clearly identifiable marks or notices to be included in or associated with unsolicited commercial electronic mail that contains sexually oriented material, in order to inform the recipient of this message, of the material, of that fact to facilitate filtering of such electronic mail. As all of us have discussed in consideration of this bill, one of the great concerns all of us have is pornographic material that is transmitted in the form of spam. According to several experts, 20 percent of unsolicited spam is pornography. This is an effort on the part of Senators Enzi and Santorum to try to at least begin addressing this issue. It is a valuable and important contribution in the form of trying to identify it and to bring it under control. It would make it a crime to send unsolicited e-mail that contains sexually oriented material unless they labeled it as prescribed by the FTC. The criminal penalties for this section would be the same as those contained in the Hatch-Leahy amendment. I strongly support the amendment and urge its adoption.

Mr. McCAIN. Madam President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. McCAIN. Madam President, I send an amendment to the desk on behalf of Senators Santorum and Enzi, and I ask for its immediate consideration.

Mr. McCAIN. Mr. President, I think the amendment of the Senator from Iowa is a worthy cause. We appreciate very much Senator Harkin's continued commitment to those who are hearing impaired in America. He has been a consistent and longtime advocate of this group of Americans. I thank him for his other contributions. I urge adoption of the amendment.

Mr. McCAIN. On behalf of Senator Corzine, I have an amendment at the desk. I ask for its immediate consideration.

Mr. McCAIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. McCAIN. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. McCAIN. Madam President, I move to reconsider the vote.

Mr. McCAIN. Madam President, I will mention Senator Schumer's amendment which we have agreed to, which as soon as opening statements are completed we will propose, and I believe it will be without objection. It does do several things. I will mention it now because Senator Schumer has worked so hard on this amendment. This amendment says that not later than 6 months after the date of enactment of the act, the Commission will transmit to the Senate Committee on Commerce, Science, and Transportation, and to the House of Representatives Committee on Energy and Commerce a report that sets forth a plan and timetable for establishing a nationwide market Do Not E-mail Registry. It includes an explanation of any practical, technical, security, privacy, enforceability, or other concerns the Commission has regarding such a registry and includes an explanation of how the registry would be applied with respect to children with e-mail accounts. Finally, it says the Commission may establish and implement the plan, but not earlier than 9 months after the date of enactment of this act. I say to my friend, Senator Schumer, that I will do everything in my power to make sure that this is enacted and this plan, not earlier than 9 months, should be implemented. I hope that is satisfactory. Again, I thank Senator Schumer. If we can implement a Do Not Spam provision which is clearly modeled after the Do Not Call list, I think it will have enormous benefit to all Americans. I will make a few comments about the bill and then yield to my colleagues and to Senator Schumer for their remarks. If passed into law by Congress and signed by the President, the CAN- SPAM Act would be the first Federal law to regulate senders of commercial e-mail. The bill would prohibit senders of commercial e-mail from falsifying or disguising the following: their identity; the return address or routing information of an e-mail; and the subject matters of their messages. Violations of these provisions would result in both criminal and civil penalties. The bill would also require senders of commercial e-mail to give their recipients an opportunity to opt out of receiving future messages and to honor those requests. Except for e-mail that is transactional in nature, such as purchase receipts or airlines ticket confirmations, every commercial e-mail sent over the Internet to American consumers would be required to provide this valid, working opt-out or unsubscribe mechanism. These rules represent current industry best practices regarding commercial e-mail messages. For unsolicited commercial e-mail, however, the bill would require more disclosures from the sender of the message, such as providing recipients with instructions on how to operate the opt-out mechanism, a valid physical address of the sender, and a clear notice in the body of the message that it is an advertisement or solicitation. In an amendment I offered in committee, this bill would also prohibit businesses from knowingly promoting or permitting the promotion of their business through e-mail transmitted with false or misleading identity or routing information. Those that benefit the most from sending fraudulent spam, the companies advertised in those messages, should be held accountable, and they will. As my colleagues, Senators Burns and Wyden, will explain in more detail, the bill would also target many of the insidious mechanisms used by today's spammers, including e-mail harvesting, dictionary attacks, and the hijacking of consumer e-mail accounts in order to send spam. In addition to setting strict rules of the road for senders of commercial e-mail, the CAN-SPAM Act would provide tough criminal and civil penalties for offenders, and a multilayered approach to enforcement. This bill provides for enforcement actions by the FTC, State attorneys general, Internet service providers, and if Senator Hatch's proposed criminal amendment is passed which I assume it will, the Department of Justice. I strongly support this bill and I urge my colleagues to join me, Senators Burns, Wyden, Hollings, Hatch, and others, in passing this bill as a first step toward giving consumers back some control of their e-mail in-boxes. I would like to make a few general observations about this issue that I have come to learn over the years that the Commerce Committee has examined it. According to the Pew Internet & American Life Project, approximately 140 million Americans, nearly half of all U.S. citizens and 63 percent of full-time or part-time workers regularly use e-mail. E-mail messaging has fundamentally changed the way we communicate with family, friends, coworkers and business partners; the way consumers communicate with businesses that provide goods and services; and the way that businesses may legitimately market products to consumers. The growing affliction of spam, however, may threaten all of this. We must keep in mind the tremendous promise that the Internet and more specifically e-mail, holds for consumers and businesses alike. We must recognize that the word ``spam'' means different things to different people. The Federal Trade Commission defines spam generally as ``unsolicited commercial e-mail.'' and some Americans do not want any of it. Other consumers like to receive unsolicited offers by e-mail; to these consumers, spam means only the unwanted fraudulent or pornographic e- mail that also floods their inbox. Many American businesses view e-mail over the Internet as a new medium through which to market or communicate more efficiently with consumers. To them, this type of communication is not spam, but commercial speech protected by the first amendment. The Direct Marketing Association reports that 37 percent of consumers it surveyed have bought something as a result of receiving unsolicited e-mail from marketers. Internet service provider are the businesses caught in the middle, forced every day to draw distinctions between what they perceive as legitimate e-mail and what is spam. In this environment, the risk of ISPs blocking legitimate mail that consumers depend on, such as purchase receipts or healthcare communications, is as much a concern as the prospect of failing to block as much spam as possible in the face of consumer demand. Often, the filters used by ISPs fail to meet their subscribers' expectations on both accounts, failing to block the spam and sometimes blocking legitimate e-mail from coming through, leaving consumers, legitimate businesses and the ISPs themselves frustrated. I think Senator Burns and Senator Wyden remember, as well as I do, a professional spammer who came and testified before our committee. I mentioned in passing that it took him approximately 4 hours to break through a filter that had recently been in place, and he immediately began his work again of spamming millions of people every day. He was a man who was proud of his work, by the way. He was a very interesting witness and, I might say in an otherwise dull hearing, a very entertaining one. We must be mindful that in our quest to stop spam, we may impose e- mail restrictions that go too far and actually prohibit or effectively prevent e-mail that customers want to receive and that legitimate businesses depend on to service their customers. I believe this bill strikes the proper balance, thanks to the efforts of Senator Wyden, Senator Burns, Senator Schumer, and others, by carefully targeting the spam that consumers reject while preserving the fundamental benefits of e-mail to all Americans. Regardless of whether we call all solicited commercial e-mail spam, one fact is clear: Spam is rapidly on the rise. Its sheer volume is significantly affecting how consumers and businesses use e-mail. Less than 2 years ago, spam made up only 8 percent of all e-mail. In a hearing before the Commerce Committee in May, my colleagues and I learned that spam accounted for more than 45 percent of all global e- mail traffic and, worse, it would probably exceed the 50 percent mark by year's end. In the committee's hearing, America Online--our Nation's largest Internet service provider with roughly 30 million subscribers-- testified that it blocks 80 percent of all its inbound e-mail--nearly 2.4 billion out of 3 billion messages it receives each day. Not surprisingly, this number of blocked messages was nearly 2.5 times larger than the 1 billion messages AOL blocked per day only 2 months prior to that hearing, and nearly 5 times larger than the 500 million messages it blocked per day in December 2002. It's not just AOL. Our Nation's second and third largest e-mail providers, Microsoft and Earthlink, have also reported a tremendous surge in spam. Microsoft, the provider of MSN mail and the free Hotmail service, reported in May that both services combined block up to 2.4 billion spam messages each day. Earthlink, the third largest ISP in the United States, also reported a 500 percent increase in its inbound spam over the past 18 months. I realize that these numbers may not mean as much to those who do not follow e-commerce closely, so let me put it in perspective to what nearly all Americans are familiar with--junk mail. The USA Today recently reported that more than 2 trillion spam messages are expected to be sent over the Internet this year, or 100 times the amount of direct mail advertising pieces delivered by U.S. mail last year. Managing this influx adds real monetary costs to consumers and businesses. A 2001 European Union study found that spam cost Internet subscribers wouldwide $9.4 billion each year, and USA Today reported in April that research organizations estimate fighting spam adds an average of $2 per month to an individual's Internet bill. Costs to businesses are also on the rise. Ferris Research currently estimates that costs to U.S. businesses from spam in lost productivity, network system upgrades, unrecoverable data, and increased personnel costs, combined will top $10 billion in 2003. Of that total, Ferris estimates that employee productivity losses from sifting through and deleting spam account for nearly 40 percent of that--or $4 billion alone. There are other costs to our society besides monetary costs. All of us are deeply concerned about the risks to our children who use e-mail and may be victimized by the nearly 20 percent of spam that contains pornographic material, including graphic sexual images. Parents encourage their children to use the Internet to play and do schoolwork, and to use e-mail to reach distant relatives. Yet, parents today spend more and more of their time worrying that their children may open up an e-mail, disguised to look like it's from a friend or loved one, only to find pornography. This greatly concerns me as a parent, as a legislator and as an American citizen. First and foremost, parents should not have to think twice before encouraging their children to use the computer at home. In addition to pornography, the FTC also tells us that two-thirds of all spam contains deceptive information, much of it peddling get-rich- quick schemes, dubious financial or healthcare offers, and questionable products and services. Spam is a serious and rapidly growing problem that the Senate must act on, but we must also be mindful of the complexity of the problem we face. While I agree with my colleagues in the Senate who believe that passing legislation is a necessary step, I also believe that legislation alone will not solve the problem of spam. Spammers today disregard our laws and are winning the technological arms race with Internet service providers who try to block the spam they send. The New York Times recently reported just one example of how unscrupulous spammers were using technology to stay one step ahead of the law--in this instance, by highjacking a local Virginia school's computers to send out untraceable spam. I repeat: A local Virginia schools computers. The same day, in the Commerce Committee's hearing, Mr. Ronald Scelson--who is popularly known by his moniker ``The Cajun Spammer''--testified that it took him only 12 hours to ``crack'' the latest technology filter supplied by the company of another witness at the table. Not only did he hack into their filter and figure out how to defeat it, the Cajun Spammer had distributed the keys to unlocking the filter to all of his fellow spammers so that they too could send spam past the filters to the ISP's subscribers. Keeping up with resourceful spammers' latest technology is not the only challenge. Jurisdictional barriers also complicate enforcement, and as we heard in our hearing, nearly 90 percent of all spam is untraceable and may be passing through mail servers outside of the United States. I mention these things only to emphasize the complexity of this problem and to remind my colleagues that the odds of us defeating spam by legislation alone are extremely low. The fact that there may be no silver bullet to the problem of spam, however, does not mean that we should stand idly by and do nothing at all about it. The CAN-SPAM Act is a good first step, and one we should take today. It is clear this Congress must act, but we should make no mistake-- unless we can effectively enforce the laws we write, those laws will have little meaning or deterrent effect on any would-be purveyor of spam. At the Commerce Committee's executive session where we considered this bill, I introduced an amendment that would empower the FTC to take action against businesses that financially benefit from the sending of spam with deliberately falisifed sender information. This amendment passed unanimously and I would like to take a moment here to briefly comment on it because it goes to the heart of this enforcement matter. In two hearings before the Commerce Committee this past spring, the chairman and Commissioners of the FTC testified to the Commission's tremendous difficulty in tracking and finding spammers who send out spam with fraudulent and often untraceable transmission information. The chairman advised us, however, that their investigations are usually most effective when ``following the money'' to track down spammers. By this, they mean following the Web link or phone number in the spam message that consumers follow with their money to purchase the product or service promoted in the spam. From there, the FTC attempts to prove a connection between the business and a spammer who sent it out on their behalf. In essence, they spend significant time and effort attempting to follow the money trail all the way back to the spammer-- if they can find them. As an alternative to the inefficient and often slow moving process, the amendment I proposed which is now section 6 of the bill was designed to help the FTC enforce the law against those businesses at the front end of the money trail that are promoted in the spam consumers receive. They need to go further, and here is why. Many unremarkable businesses employ sophisticated spammers to send e- mail to consumers in large volumes with deliberately falsified identity and routing information in order to get past the ISP's spam filters. These businesses often escape liability because enforcement efforts are too often focused on catching the spammer rather than the unscrupulous businesses that hire them in the first place. Section 6, however, would make it easier for the FTC to enforce the law against businesses knowingly complicit in the use of spam to promote their businesses with deliberately falsified routing information. I urge my colleagues to support this principle of holding businesses that benefit from spam messages accountable for the acts of those they knowingly hire to fraudulently send spam to consumers on their behalf. I ask unanimous consent to have printed in the Record a number of letters I have received in support of this provision.

Mr. McCAIN. Madam President, the House will adopt a similar provision in any House spam bill. I have received support for the provision from every sector involved in the spam debate--consumers' groups, e-mail providers, marketers, advertisers, online and offline retailers, technology companies and the U.S. Chamber of Commerce. I urge my colleagues to join me in responding to the demands of millions of American consumers in doing all that we can to try to stop spam. I urge them to support passage of the CAN-SPAM Act. My comments were a little lengthy, and I apologize. This is a very serious and important and complex issue, as I stated at the beginning of my remarks. That is why my two colleagues have spent 4 years working on this issue. I think they would be the first to agree that this may not stop spam. There are some very smart people out there who will do everything they can for avoidance, including this issue I mention of organizations outside the United States. For us to do nothing would be a great disservice to millions of Americans, including the young ones, the majority of whom in America are regular users of computers. I thank my colleagues, Senator Wyden and Senator Burns. For the benefit of my colleagues, we have three or four amendments. Maybe one or two might require a vote. I hope we can dispose of this legislation in a fairly short period of time. I yield the floor.

Mr. McCAIN. Madam President, I believe the Senator from Oregon has a technical amendment and maybe would like to propose that at this time. It is my understanding that the Senator from New York, Mr. Schumer, is on his way over to propose his Do Not Spam amendment. It is also my understanding that Senator Hatch, Senator Santorum, and Senator Corzine are the ones who have amendments. I would urge them to come forward when it is convenient so we can dispense with those amendments in a timely fashion. I yield the floor.

Mr. McCAIN. Madam President, we support the amendment. It is helpful to the legislation. I urge its adoption.

Mr. McCAIN. Madam President, we would like to, obviously, finish the bill as expeditiously as possible and yet offer all Members the opportunity to propose amendments. As I understand it right now, we have pending amendments by Senators Corzine, Santorum, and Hatch. As Members know, there is a briefing at 4 p.m. by the Secretary of Defense for all Members in room 407. Shortly before 4, I would like to propose a unanimous consent agreement to lock in all amendments with no time agreements agreed to. I ask my colleagues who may have additional amendments to let us know between now and shortly before the hour of 4, which is over a half an hour. I will also say we are asking Senators Hatch, Santorum, and Corzine to come over to offer their amendments so we can dispose of those amendments. Amendment No. 1892 Mr. McCain. Madam President, I wish to make a few comments about Senator Schumer's amendment regarding the Do Not Spam list. As Senator Schumer pointed out, it authorizes the Federal Trade Commission to develop a Do Not Spam list similar to the Do Not Call list which has been widely supported by Americans across the country. The Senator from New York and I remember when apparently perhaps, in the view of some, a misguided member of the judiciary stayed the Do Not Call list and the reaction that followed was certainly extraordinary. If we are able technologically to develop a Do Not Spam list, I think it would be of great assistance to many Americans. So I think the Senator from New York has a remarkable idea here. As a first step, the FTC, which has testified they have some technological reservations about creating such a list, although I am sure the FTC would not object to it in principle, but they have some reservations, Senator Schumer has modified his amendment so that the FTC would be required to submit a report to the Congress within 6 months. It contains a plan for implementing the Do Not Spam list. The FTC would be authorized to implement the list 3 months later, and I would certainly urge them to do so. As everyone is aware by now, there has been a tremendous amount of discussion about this issue. I believe it is a good one and one that provides the FTC with the authority to establish such a registry if they believe it is the proper mechanism to stop the onslaught of spam to consumers. I think we have given them the flexibility to come back and show us if there are serious problems. If there are serious problems, we would be glad to look at them and help resolve those problems through any kind of legislative or other assistance we can provide. The Schumer amendment also absolutely emphasizes this is an idea that has worked in the Do Not Call area and is a concept that should be pursued to the fullest extent of our capabilities. So I thank the Senator. I also thank Senator Nelson, a valued member of the committee, for his involvement in this issue. Again, I hope Senators who have amendments will come to the floor and let us know about them.

Mr. McCAIN. I am glad to yield.

Mr. McCAIN. Madam President, I again urge my colleagues, particularly Senators Santorum, Hatch, Corzine, and Enzi, to come to the floor to give us their amendments so we can move expeditiously. I also intend to propose a unanimous consent agreement in about 15 minutes that there be no further amendments in order at that time. I suggest the absence of a quorum.

Mr. McCAIN. Madam President, this bill was introduced in April by Senators Burns and Wyden, and the substitute version was approved by the Senate Commerce Committee on June 19. Also, we have had intensive negotiations with the Senator from New York, Mr. Schumer, who is now on the floor, concerning a ``do not spam'' aspect of this legislation. First of all, I wish to thank, of course, Senator Hollings, the ranking member of the committee, for all of his effort, but I particularly acknowledge my two colleagues who are on the floor, Senators Burns and Wyden. Around here, we have a tendency to take credit for a lot of things that may not necessarily be true, although I am not sure that is true in my case, but the fact is, Senator Burns and Senator Wyden have worked for, I believe, 3 years on this issue. It is complex. It is difficult. It has a lot to do with technology. The issues are very technical in nature in some respects. They have responded to what I think is a major concern of every young American and every American who uses a computer, and that is this issue of unwanted spam. I again tell my colleagues that without the efforts Senator Burns and Senator Wyden have made on this bill, we would not be here today, and I am very grateful for their participation. I believe the ranking member, Senator Hollings, wishes to make an opening comment, and then I would like to be recognized after Senator Hollings. I yield the floor.

Mr. McCAIN. Mr. President, I ask unanimous consent that Senator Hatch be added as a cosponsor to the Enzi-Santorum amendment No. 1894, and I ask unanimous consent that I be added as a cosponsor of S. 877.

Mr. McCAIN. I do modify my request.

Mr. McCAIN. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. McCAIN. I am glad to yield, but first, to add to my remarks, I believe Senator Enzi may have an amendment as well. I thank my friend from New York for his comments and I yield to the Senator from Oregon.

Mr. McCAIN. Pending and about to be adopted.

John McCain

Speeches

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