Latest U.S. Spam Bill Still Worries Insurers

In a statement, Sen. Burns said that the annual cost of spam is now more than $10 billion due to lost productivity and the additional equipment and manpower needed to deal with the problem.

"These numbers keep increasing, costing businesses and individuals more and more each year," he said. "We cannot expect it to slow down on its own."

Sen. Burns and Sen. Wyden call their bill the CAN-SPAM Act.

Under the legislation, all unsolicited commercial e-mail would have to contain a valid return e-mail address that would allow recipients to have their names removed from mass e-mail lists.

Once notified by a consumer, marketers would be prevented from sending any further messages to that person.

The Federal Trade Commission would have primary enforcement responsibilities under the legislation, although state insurance commissioners would have authority to enforce the law against insurance providers.

In addition, state attorneys general would be able to bring civil actions in federal court on behalf of residents of their states who receive unsolicited commercial e-mails and seek up to $1.5 million in damages.

Moreover, Internet service providers could file private lawsuits against spammers, also seeking up to $1.5 million in damages.

David Leifer, senior counsel with the Washington-based American Council of Life Insurers, said that this is the third time that Sens. Burns and Wyden have co-sponsored an anti-spamming bill. Each version, he said, continues to get better.

The latest version, he said, is even closer to where ACLI thinks it should be. While ACLI at this time has no official position on S. 877, Mr. Leifer said, there are concerns.

In particular, he said, ACLI is concerned about the private right of action for ISPs and the ability of state attorneys general to file class action type lawsuits.

These are not needed, Mr. Leifer said, since the legislation provides ample authority for regulatory agencies to enforce the provisions.

Eric Goldman, assistant general counsel with the Washington-based American Insurance Association, agreed.

The FTC, he said, should have sole authority to enforce the legislation.

Another issue, Mr. Goldman said, is the extent to which state anti-spamming laws would be preempted by S. 877.

Without clear preemption language, he said, there could be a multitude of inconsistent state laws.

Mr. Leifer added that there are some improvements over previous versions of the legislation. For example, he said, the legislation contains a "transactional" exception that applies to existing commercial relationships.

In addition, Mr. Leifer said, the legislation allows e-mailers to provide recipients with a list or menu from which recipients can choose the specific types of messages they either want or do not want to receive.

Thus, for example, if a recipient decides to opt out of brokerage-related e-mails, this does not necessarily affect insurance or banking-related e-mails.