Given at a Full
Thursday, May 20 2004 - 10:15 AM - SR - 253
The Testimony of
The Honorable John McCain
Chairman, U.S. Senator (R-AZ)
Today, the Committee will examine the effectiveness of the CAN-SPAM
Act of 2003 at curtailing the proliferation of spam in America. Since our review
of this issue last May, the volume of spam received by American consumers has
risen unabatedly. Spam now accounts for anywhere from 64% to 83% of all e-mail
traffic on the Internet. Just a year ago, spam constituted only 45% of e-mail
traffic. Additionally, a Pew survey on Internet & American Life released
this past March found that 77% of e-mail users are receiving the same amount
or more spam since the law was passed. As a result, 30% of those surveyed
have reduced their use of e-mail, up from 25% last year who did the same.
tide of spam is driving nearly a third of consumers away from using e-mail,
a result that could well impact Internet usage and, consequently, the future
health of our telecommunications, online retail, and information technology
am reminded of Commissioner Swindle’s apparently prophetic
testimony before us last year, when he said, “I am concerned
that spam is about to kill the ‘killer app’ of the
Internet, specifically consumer use of email and e-commerce.
If consumers lose confidence in web-based services and turn away,
tremendous harm will be done to the economic potential of information
and the decline of e-commerce are not our only concerns with
spam. Because spam is used as a delivery mechanism for pornography,
viruses, and applications enabling identity theft and the hijacking
of consumers’ computers for malicious purposes, every percentage
increase in the volume of spam in turn increases the risks and
prevalence of cybercrime, as well as cybersecurity threats to
our nation’s critical infrastructure. I thank the FBI for
appearing today to discuss its efforts to combat these dangers.
I voted with other Senators to unanimously pass the CAN-SPAM
Act by a vote of 97-0 last fall, I remind my colleagues of my
repeated statements last year that legislation alone would not
solve the problem of spam. But the fact that there is no silver
bullet to spam does not mean we should stand idly by and do nothing.
should, at the very least, enforce the Act by the most effective
means possible. If spammers continue to win a technological game
of hide-and-seek with ISPs, the FTC, and the FBI, then the law
will have little effect at stopping spam. I do not believe, however,
that authorizing broad private rights of action will improve
enforcement efforts. If industry and government authorities spending
vast resources in this effort can only muster enough evidence
to bring a grand total of 8 spam cases over the past 5 months,
then private rights of action will produce little more than expenses
for legitimate businesses to fend off opportunistic trial lawyers.
Spammers will remain at large.
the FTC can’t find the spammers, it should do the next
best thing: go after the businesses that knowingly hire spammers
to promote their goods and services. The Act gives the FTC the
tools to do so in Section 6 – the FTC should use them.
The businesses promoted by spammers take credit cards; they are
established businesses; and they are liable under the Act for
using falsified e-mail to promote their sites, even if what they
sell there is not fraudulent or otherwise illegal. At a minimum,
the FTC could put thousands of businesses – many of them
online pornography retailers – on notice that using anonymous
spam is an illegal means of driving consumer traffic to their
websites. Using its authority to get out this message, the FTC
could help dry up the market for the use of deceptive spam as
a marketing tool, and thereby reduce the amount sent to consumers.
the long run, though, I continue to believe that dynamic, market-based
efforts have a far better chance at defeating the ever-changing,
global technological maneuvers of spammers than anything we can
write into our static laws. I thank the witnesses for being here
today and look forward to their testimony.