 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
|
Prepared Witness Testimony The House Committee on Energy and Commerce
Legislative Efforts to Combat Spam
Subcommittee on Commerce, Trade, and Consumer Protection
Mr. Paul Misener
Good morning, Chairman Upton and Chairman Stearns; Mr. Markey and Ms. Schakowsky; and members of the Subcommittees. My name is Paul Misener. I am Amazon.com's Vice President for Global Public Policy. Thank you very much for inviting me to testify today. Messrs. Chairmen, Amazon.com deplores spam. We find it annoying and often offensive and increasingly designed to defraud, confuse, or trick consumers. Therefore, tempered by the recognition that legitimate businesses occasionally make honest mistakes, we ask that you pass a strong, effective, nationwide anti-spam law. Spam Annoys and Often Offends Consumers Messrs. Chairmen, it almost goes without saying that spam annoys and often offends consumers. At very little cost to themselves, spammers cram our email boxes full of messages from shady businesses, about questionable products and services, and often in ways that shock even the most worldly adults. The sheer volume of spam makes it increasingly difficult for consumers to receive the email, both personal and commercial, they want. Amazon.com's Practice is to Never Spam Accordingly, Amazon.com's practice is to never spam. We send email only to those individuals - our customers - with whom we have an extant relationship. And we provide our customers thorough choice mechanisms that allow them to determine for themselves how much - if any - email they receive from Amazon.com. We believe this is simply good, pro-customer business practice. Spam is Increasingly Used to Defraud, Confuse, or Trick Consumers But spam has become even worse than annoying and often offensive. Spam is increasingly used to defraud, confuse, or trick consumers. Many employ well-known fraud schemes, such as the infamous Nigerian businessman hoax. Others may be more subtle, yet use fraud techniques that predate email communications: offers to get rich quick, lose weight fast, and find a date nearby are nothing new, but are common in spam. Although efforts to confuse consumers are somewhat more sophisticated, spammers still use classic sleights of hand, such as subject lines that entice recipients to open emails they otherwise would not. Examples are commercial emails that use highly informal or personal subject lines like, "Party Next Week!" or "how's it going?" The confusion doesn't last long, however, for once a consumer opens the message and finds an advertisement for diet pills the sleight of hand becomes obvious. This spam approach is not unlike common physical mail advertisements that are intentionally shaped, formatted, and colored to look like a check. The whole idea is to get consumers to open the envelope but, once inside, the deception is over. Increasingly, however, Amazon.com has observed - and been a victim of - highly sophisticated techniques that convincingly trick consumers into thinking that an email is coming from a reputable sender. This kind of deception is particularly insidious because the fraud not only involves what is said or how it is said, but who purportedly is saying it. Indeed, over the past few months, many consumers have received commercial emails from addresses such as frank@amazon.com or sally@amazon.com. But such emails were not sent by Amazon.com or anyone who works for our company. They are part of a growing problem called "spoofing," whereby headers of commercial emails are intentionally forged to appear to come from reputable companies or individuals. Technological solutions to the spoofing problem are elusive. At the network level, shortcomings in the underlying email software communications protocols make spoofing relatively easy to accomplish, yet virtually impossible to stymie. And, at the local consumer level, filtering software cannot effectively block spoofed messages without also blocking many legitimate ones. Legal solutions are somewhat more promising. Amazon.com and other companies are investigating spoofing incidents and considering a variety of civil actions. We also are aware that the FTC and state attorneys general have brought and are considering additional civil and criminal fraud or trade practice actions. Amazon.com Supports Anti-Spam Legislation Current law, however, could be dramatically improved with new, nationwide, anti-spam legislation. Amazon.com is very grateful, Messrs. Chairmen, that you and members of your Subcommittees are working on such legislation, in a bi-partisan fashion, and in close cooperation with members of the Judiciary Committee. We particularly appreciate the strong, national policy that would be established by passing an anti-spam law this year, and we would support the inclusion of a provision that would allow the FTC to prosecute knowing beneficiaries of spam, not just the spammers themselves. But, on behalf of our customers and company, Amazon.com will support particular anti-spam legislation only if it recognizes that legitimate businesses occasionally make honest mistakes that should not be proscribed. Please allow me to explain. Honest, Infrequent Mistakes Should Not Be Proscribed Because commercial email necessarily involves computers and human programmers, there have been and will continue to be occasional email mistakes, no matter how many preventative measures are taken. Such truly honest mistakes are rare and certainly are not the cause of the in-box clutter and associated consumer angst that have led us all to this point. Not only are these mistakes expected and essentially not preventable, the harm to consumers is minimal, and there already are strong market forces at work: Reputable companies simply do not want to irritate consumers who have asked not to be bothered. Of the acts that would be prohibited by the comprehensive anti-spam bills now before the House, honest mistakes are obviously plausible only for accidentally sending email to individuals who have opted out of receiving them. Proscribing such mistakes would have the perverse effect of discouraging email use by the most reputable - and thereby most exposed - companies. Every day, Amazon.com sends tens of thousands of emails to our customers and, thus, just one simple mistake (such as accidentally sending a notice of a new jazz CD release to customers who have elected not to receive email on jazz music), could expose us to astronomical penalties. Surely, this is not the goal of anti-spam legislation. And, of course, the other acts that would be prohibited by the anti-spam bills - such as falsifying email headers - are so necessarily intentional or systematic that it would be implausible to claim that they are merely the result of honest mistake. Amazon.com believes that H.R. 2214 and H.R. 2515 would wisely distinguish between actions that may plausibly be mistakes and those that almost certainly involve unlawful intent. They would require plaintiffs complaining of commercial email being sent after an opt-out choice to allege with particularity that the defendant has engaged in a "pattern or practice" of ignoring such choices. No such pattern or practice allegation would be needed for complaints regarding, e.g., false headers. Importantly, the "pattern or practice" language in these House bills would not create a loophole for the real spammers to escape punishment. In the first place, to reiterate, it does not apply to the prohibited acts that almost certainly are intentional or systematic, such as the falsification of header information; rather, it would only apply in the circumstance where an email is sent to an individual who has opted out of receiving such email. Moreover, true spammers do not have legitimate businesses that would occupy the vast majority of their emails. As a business necessity, spammers simply must have a pattern or practice of spamming, not just send an occasional spam. In other words, it will be very easy to tell the difference between the honest, infrequent mistakes of companies not in the spam business from the true spammers, who must spam most or all of the time. Conclusion In conclusion, Mr. Chairman, Amazon.com deplores spam. On behalf of our customers and company, and tempered by the recognition that legitimate businesses occasionally make honest mistakes that should not be proscribed, Amazon.com respectfully asks that you pass strong, effective, nationwide anti-spam legislation. Thank you again for inviting me to testify. I look forward to your questions.
|
|||||||||||
|
