Criminal Spam Act of 2003

Madam President, I ask unanimous consent that the Senate now proceed to the consideration of Calendar No. 209, S. 877; provided further that the committee amendment be agreed to and be considered original text for the purpose of further amendment.

Madam President, I suggest the absence of a quorum.

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

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.

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.

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.

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.

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

Madam President, I move to reconsider the vote.

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.

I am glad to yield.

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.

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.

I thank Senator Hatch and Senator Leahy for their work to improve the criminal provisions and strengthen the Burns-Wyden CAN-SPAM Act. The active participation of Senator Hatch and his committee on this issue has been extremely valuable.

I join my friend from Oregon in urging Senator Hatch to have oversight on how this law is enforced and that it is properly done. We face challenges in enforcement of this act, particularly in light of the changes in technology that will inevitably occur which will make this legislation even harder to enforce than it is today. I thank Senator Hatch, and I urge adoption of the amendment.

Madam President, I ask consent that the following amendments be the only first-degree amendments in order to the bill and that they be subject to second-degrees which would be relevant to the first degree to which they are offered: Corzine amendment, Santorum amendment, Enzi amendment, Landrieu amendment, and Boxer amendment.

I do modify my request.

Pending and about to be adopted.

Mr. President, I thank Senator Leahy for his work on this amendment, along with Senator Hatch, who lends and contributes a great deal of teeth to this bill. I know they have worked very hard.

As I mentioned to Senator Hatch, as did the Senator from Oregon, we know that the Senator and his committee will be involved in the oversight of the enforcement of this legislation. We thank you for his valuable contribution.

I urge the sponsors of those amendments, Senators Corzine, Santorum, Enzi, Landrieu, Boxer, and Harkin, to please come to the floor in courtesy to their colleagues so we can take up and dispose of these amendments. Please show some courtesy to your colleagues. If you have amendments pending, please come. We are ready for them.

I yield the floor.

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

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

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.

Madam President, for the benefit of my colleagues, we have a Landrieu amendment which the Senator from Louisiana has been kind enough to withdraw, but we need to discuss what we need to do in the form of sending a letter to the Federal Trade Commission instructing them to take certain actions which I will discuss in a minute; a Corzine amendment which has two parts to it, which both sides have agreed to; and then I don't believe there will be any further amendments, although that is not completely clear. We could expect a vote on final passage relatively soon.

Senator Landrieu was going to offer an amendment that would have required the Consumer Product Safety Commission to undertake a rulemaking to have manufacturers create a database for consumers to be notified of certain product recalls. I have committed to Senator Landrieu to work with the CPSC to solicit these views on her legislation and ask how best to accomplish her worthy goals of better informing consumers about product recalls.

Senator Landrieu has hit on a very important issue. Unless you happen to see it by accident mentioned on television, the recalls are very seldom

known by at least a majority of those who would be affected by it. I commit to Senator Landrieu to see how we can best accomplish that. I appreciate her forbearance at this time in withdrawing the amendment. I hope we can satisfy her concerns by asking for rapid action on the part of the Consumer Product Safety Commission.

I yield the floor.

Madam President, as we are nearing the end, I am waiting for the Corzine amendment that we will discuss and adopt. Then I believe we will be able to move to final passage. I am not positive, but I think we will be able to. I would like to again express my appreciation to the Senator from Montana, Mr. Burns, and Senator Wyden. Four years is a long time to work on a single issue. When these two Senators began work on this issue, spam was minuscule as compared to what it is today. I must admit, I didn't pay much attention to it then, nor did the members of the Commerce Committee, nor the oversight agencies. Both Senators had the foresight to see the incredible proportions that this spamming would reach and the effect that it would have not only on our ability to use e-commerce and e-communications but also on our ability to improve productivity.

The costs involved in the spamming issue are pretty incredible when you count it all up according to certain experts.

So I thank our staffs who have worked on this for so long. Without the leadership of the Senator from Montana, Mr. Burns, and that of Senator Wyden, we would not have been able to move this, after several hearings in the Commerce Committee, to the floor of the Senate. I have some confidence that our friends on the other side of the Capitol will act with some dispatch since they are as wary as we are of the gravity of this problem. As soon as we get the Corzine amendment, we will move forward.

I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, I ask unanimous consent that we lay aside the pending amendment so Senator Harkin may be recognized.

Amendment No. 1895

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. 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.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, Senator Santorum would like to speak about the Santorum-Enzi amendment, and then we will have the Corzine amendment, which I will propose, and then we will be ready, I believe, for final passage.

I yield the floor.

Mr. President, I assure the Senator from Pennsylvania that we will do everything we can to hold it. I have to tell my friend from Pennsylvania that probably the greatest single aspect of this spamming that is so disturbing to families all over America is the issue the Senator from Pennsylvania raises, and that is this graphic pornography that pops into view when children are trying to do their homework, much less other entertaining aspects of using the computer.

I want to work with the Senator from Pennsylvania in every way we can to see if we can enact whatever safeguards to prevent this pollution of young Americans' minds.

Mr. President, as we await the completion of the Corzine amendment, I suggest the absence of a quorum.

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

I believe the pending amendment is the Santorum-Enzi amendment.

Mr. President, we have discussed this amendment and we have now received clearance from both sides of the aisle and I urge its adoption.

I am told by the staff that we will commence this vote at 6:30. I hope by that time we would have the final writing of the Corzine amendment, which I could propose at that time and have adopted since it is agreed to by both sides. We are waiting for that. Is that correct?

It has been resolved. We are just waiting for the language to be done. We may have to fire some staff people, I am afraid. Senator Wyden was writing them before.

Let me put it this way: I ask unanimous consent that after the adoption of the Corzine amendment, the bill be read a third time and a final vote be taken at 6:30, with the understanding that if the Corzine amendment is not adopted that would not happen.

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

Mr. President, I support the amendment by Senator Corzine. I thank my colleagues for reaching a compromise at this time. I thank those who rapidly wrote this amendment on short notice so we could complete work on this legislation.

The amendment has two components. The first part addresses labeling of unsolicited commercial e-mail with the term ADV and also addresses the possibility of industry self-regulation. The Federal Trade Commission has raised serious concerns with both of these proposals with respect to ADV labeling. The FTC has written to me in opposition to labeling:

First, consumer groups, ISPs, and emailers at the SPAM

Forum roundly criticized the mandatory use of an ``ADV''

label. Labeling requirements could harm legitimate marketers,

while illegitimate marketers are likely to ignore the

requirement. Indeed, although several States require ``ADV''

labels on unsolicited commercial email, in its recent study

on False Claims in SPAM, Commission staff found that only 2

percent of email messages analyzed contained such a label.

In lieu of Senator Corzine's original proposal to make ADV labeling an industry self-regulation, the amendment has been modified to require the Federal Trade Commission to report to Congress on whether the ADV labeling and industry self-regulation should be implemented.

So I think this is a sensible solution in light of the Federal Trade Commission's concerns as I just read from their report to Congress.

The second part of the amendment would authorize the Federal Trade Commission to adopt a bounty hunter proposal to give people a portion of the fines collected from spammers that they hope to catch. As with the Do Not Spam Registry, the FTC would be authorized to act after first sending a report to Congress.

I support the amendment.

Mr. President, I suggest the absence of a quorum. Under the previous order, I believe the vote will start at 6:30.

Mr. President, this has been interesting, and I think for the public who might be watching, they may want to know what they are getting for their $100,000 to $150,000 of taxpayer's money that is being spent in this filibuster and those staff members who have lost any ability to have time for themselves and their families.

So I thought I might boil this down to its essence. Have filibusters been used before on Executive Calendar nominees, including judicial nominees to the lower courts, as well as to the

Supreme Court? Of course they have. No matter how much my friends on the other side say no, of course they have. They know that.

The Congressional Record is open for all to read, and we do not even have to go back to ancient history for this. Three years ago, there were even two simultaneous Republican filibusters on the Senate floor against Richard Paez and Marsha Berzon, two of President Clinton's nominees. In fact, here is a list of Republican filibusters of nominees. It is a pretty long list.

I do not think we have to remind our friends on the other side of the aisle about the dozens more that were blocked not through votes in the open, on the Senate floor, but through holds by anonymous Republican Senators. In fact, these were filibusters by one or more anonymous Republicans. If one or more Republicans objected to one of President Clinton's nominees, they never got a vote. They never got on the floor. They never got out of committee. One actually did get out, and then by a party line vote he was voted down. That was the African-American chief justice of the Missouri Supreme Court.

So what happened in these one-person anonymous filibusters by the Republicans? Not 4 people being held up, it was 63 of President Clinton's nominees. Sixty-three of President Clinton's nominees were blocked by the Republicans by a one-person anonymous filibuster.

So are filibusters, including judicial nominees, rare? Sure, they are. And, incidentally, these are the Clinton circuit court nominees blocked by the Republicans during 1995 to the year 2000. As we can see, it is a pretty large number: James Beatty, Rich Leonard, Jorge Rangel, Robert Raymar, Barry Goode, Alston Johnson, James Duffy, Elena Kagen, James Wynn, Kathleen McCree Lewis, Enrique Moreno, James Lyons, Allen Snyder, Kent Markus, Robert Cindrich, Stephen Orlofsky, Roger Gregory, Christine Arguello, Elizabeth Gibson, Bonnie Campbell, Andre Davis, Richard Paez, Marsha Berzon, H. Lee Sarokin, and Rosemary Barkett.

The Senate's rules are intended to protect against abuses by the majority that at any given time controls the Senate. I have been here eight times in the majority, eight times in the minority. So the majority and minority go back and forth all the time. In this case, the Senate's rules protect against abuses of power--we have a system of checks and balance--especially by a White House that is so bent on controlling all the levels of power. They even want the Senate to change their rules, rules that have governed this body for over 200 years.

Now, should filibusters be used sparingly? Of course. And they have been used sparingly. But unlike the times of the recent Republican filibusters where 63 of President Clinton's nominees were stopped, we have used this very sparingly against a President who wants to run roughshod over other safeguards built into our system of government and into the very rules and practices of the Senate and its committees.

By using it sparingly, all this talk--you know, it is almost ironic to see my Republican friends with a straight face say how terrible this is and spend $150,000 or so of the taxpayers' money to tell us how terrible this is, after they stopped, by using 1-person filibusters, 63 of President Clinton's nominees.

Let us put the chart up there, if we might. Here is what we have done. We did not stop 63, as they did. We have stopped four. We have confirmed 168, and we stopped 4. There is even a T-shirt floating around which says: We confirmed 168 of President Bush's nominees and what did we get for it? When you look at the back, it says: All I got was this lousy T-shirt.

So this year, with breathtaking arrogance and a certain disdain for the past and certainly an unwillingness to be honest about the history of the Senate, we have seen a systematic dismantling of the Judiciary Committee's own rules. One by one, Republican majorities have changed, bent, and even broken the longstanding rules and practices that are intended to protect the rights of Senators to defend the rights of their States and their constituencies. These are the very same rules they used--some would say abused--when there was a Democratic President.

Would filibusters be necessary at all if the President lived up to the Constitution's injunction that he seek not only the Senate's consent but also its advice in selecting candidates for the independent Federal judiciary? Remember, the Federal judiciary is not supposed to be an arm of the Republican Party or the Democratic Party. Of course, it is supposed to be independent. It is a real question: Is there a clear way forward without the need to prevent the confirmation of any judicial nominee? The President has the ability to stop all of this. None of this impasse would be necessary if the President actually followed advice and consent.

If the President did what other Presidents of both parties have done, where they have tried to be a uniter, not a divider, if the President, who has declared his disdain for what he calls judicial activism, had nominated people who were not judicial activists, if he had tried to unite and not divide, none of this would be happening.

Instead of working with the Senate to name mainstream nominees to our courts, he has chosen instead to try to politicize the courts. He and his aides have unabashedly declared that they are out to remake the federal judiciary in the image of ideological activism. Our courts are foundational to our system. Our independent judiciary is the envy of the entire world.

In deference to groups on the far right, he has nominated judicial activists who cannot help but raise questions about their impartiality and their capability to administer justice for all.

What we need is an independent judiciary. Time and again, Democratic Senators have acted in good faith to fill vacancies that Republicans kept open for years when there was a Democratic President. Time and again they have blocked, by one or two anonymous Republican holds, Democratic nominees of President Clinton's from going forward.

We have filled those. That is why we are able to get 168 of the President's nominees through. We have stopped four. Come on. Is this worth spending the taxpayers' money? Perhaps not. Maybe, though, they believe it is worth it to send out fundraising letters.

The public's priorities v. the Republican leadership's priorities: During this 30-hour talkathon, the Republican leadership of the Senate again is following a script laid out for it by a White House intent on bending all other branches of government to its will. This is a White House intent on establishing some sort of unitary government and intent on removing the checks and balances among our three branches of government that are a foundation of the American system. In furtherance of this script, in these rare final hours of this year's legislative session, the Republican leadership has decided to abandon work on the real priorities of the American people. They are obstructing those priorities, in favor of repetitive speeches about promoting these four controversial nominees to lifetime positions as federal judges--four people who already have good, well-paying jobs--is more important than the three million Americans who have been struggling to find any jobs at all.

The Republican leadership has already overshot the Senate's adjournment date by more than a month. We have already had to enact three continuing resolutions to keep the Federal Government operating because the appropriations bills that the Congress needs to pass have not been enacted. It is now more than five weeks after the fiscal year began and we should have completed all 13 appropriations bills, but the Republican Congress has enacted a total of only four out of 13.

The remaining annual appropriations bills include the funds that go to improve our schools. The funds that NIH uses to advance our medical knowledge in fighting disease and illness. The resources used by EPA to enforce our clean air and water laws. They include appropriations for our veterans and for law enforcement.

Yesterday evening as the Republicans gathered to accommodate the programming requests of a certain television network, the senior Senator from West Virginia was trying to get the Senate to do its work. Senator Byrd, as the ranking Democrat on the

Appropriations Committee, was searching for the Republican leader and urging the Senate to complete its work on the appropriations bill that funds services for our military veterans. He asked that the Senate continue that work so that we could finish Senate consideration of this important bill and proposed that we do so in just two hours. The Republican leadership objected. He renewed his request when the Republican leader did appear on the floor but was, again, rebuffed by Republican objection. Those few minutes may turn out to be the most telling of this entire so-called debate. Republicans chose to sacrifice the work of the Senate, the priorities of the American people and the interests of our veterans to a partisan political stunt.

In one of their many press conferences on this diversion, on November 6, the Republican leader committed to ``complete the appropriations process'' before beginning this charade. Even the junior Senator from Pennsylvania, agreed with that and said: ``The leader's right. What we're about to embark in next week, after the appropriations process has run its course, is to enter into a debate. . . .'' Well, when given the chance to honor that commitment last night, the Republican caucus chose partisan theater over the work of the Senate.

There is the unfinished business of providing a real prescription drug benefit for seniors. There is the Nation's unemployment and lack of job opportunities that confound so many American families. With millions of Americans having lost their jobs in the last three years, the Republican Senate is, instead, insisting on spending these final days of this session on a handful of highly controversial judicial nominations that divide the Senate and the American people and ignoring the needs of the almost 10 million Americans who are out of work, including those more than three million Americans who have lost their jobs since President Bush took office.

There are the corporate and Wall Street scandals that concern so many of those who have invested and placed their trust and financial security at risk in our securities markets. While we are listening to Republicans pontificate about a handful of highly controversial judicial nominees, some Republican has an anonymous hold on S. 1293, the Criminal Spam Act of 2003. This is a bipartisan bill that can do something about the worst spam abuses. Earlier this week, the Washington Times reported that spam is doing more damage to our economy than hackers or viruses. A few weeks ago the entire Senate joined in adopting a version of S. 1293 to the Burns-Wyden bill and we joined to pass that bill. Now some Republican has turned around and under cover of anonymity is holding up the bipartisan bill that can be enacted before adjournment this year that can stem the tide against the worst abuses and fraudulent conduct that is gumming up our internet economy and communications. This is the type of anonymous Republican hold that was likewise responsible for holding up more than 60 of President Clinton's qualified nominees to the federal judiciary from 1995 through 2001.

There is the need for Congress to continue the federal highway programs that build and repair our roads and highways and bridges. There is the need to perform real oversight of the U.S.A. PATRIOT Act and to provide real oversight for the war in Iraq. Just as Republicans objected to the Senate Judiciary Committee investigating the factors that led to September 11, Republicans are now objecting and preventing a full investigation by the Select Intelligence Committee of what led the Bush administration to contend that Saddam Hussein had weapons of mass destruction and was about to use them against the United States and that we had to embark earlier this year on a preemptive war.

Nor has the Senate taken any action on the misrepresentations made to us by Bush administration officials about their efforts to gut Clean Air Act enforcement. When they appeared and testified before us, they declared that their policies would not affect enforcement of the Clean Air Act and ongoing cases. Over the last two weeks we have seen how far from the truth that testimony was.

For the last three years this Administration has run roughshod over environmental protection and the Republican Senate has done nothing to stem the tide. They have catered to special interests in rolling back protections for clean water, clean air, toxic cleanups and public health. The Senate should be focusing attention on these attacks upon the environment and these rollbacks, but nothing could be farther from the agenda of the Republican Senate leadership.

Forty-two environmental rollbacks by the Bush administration that have been announced on Friday is the number the Senate should be working on. There have now been more environmental rollbacks than there are vacancies throughout the entire federal judiciary. The Bush administration's announcement that they are halting enforcement actions against industrial polluters under the New Source Review provision of the Clean Air Act flatly contradicts the assurances by Justice and EPA officials to the Senate last year. The toxic pollutants that will cause asthma and heart disease for our children and grandchildren is apparently of little interest to the Republican leadership of the Senate. That would be worthy of serious inquiry, debate and Senate action.

Last week the House passed by an overwhelming bipartisan margin the Advancing Justice through DNA Technology Act of 2003, H.R. 3214. This landmark legislation provides law enforcement with the training and equipment required to effectively, and accurately, fight crime in the 21st Century. More specifically, the bill would enact the President's DNA Initiative, which authorizes more than $1 billion over the next five years to eliminate the backlog crisis in the nation's crime labs, and to fund other DNA-related programs. It also includes the Innocence Protection Act, a death penalty reform effort I launched three years ago with Senators and Congressmen on both sides of the aisle.

The House vote was a major breakthrough in finding solutions to the flaws in our justice system. I understand that Republican Senators are now blocking action on the bill in the Senate. This bill is the result of extensive, exhaustive negotiations among Democratic and Republican leaders in the House and the Senate. It has broad support, both in the Congress and across the country and deserves the Senate's immediate attention and passage.

We have shown that the death penalty system is broken, we know that the reforms in this bill will help, and we know that every day we delay action may be another day on death row for some innocent people. These mistakes in our system of justice carry a high personal and social price. They undermine the public's confidence in our judicial system, they produce unbearable anguish for innocent people and their families and for the victims of these crimes, and they compromise public safety because for every wrongly convicted person, there is a real criminal who may still be roaming the streets. This matter is also being stalled by Senate Republican inaction.

The Senate has yet to take up the Anthrax Victims Fund Fairness Act of 2003, S. 1740, which Senator Daschle and I introduced with a number of other Senators because we are concerned that the citizens harmed by the anthrax letters addressed to Senator Daschle and to me in October 2001 are the forgotten victims of the aftermath of September 11. They, too, should have access to the Victim Compensation Fund. The Senate has yet to consider the September 11th Victim Compensation Fund Extension Act, S. 1602, which must be passed before we adjourn or hundreds of families who suffered on 9/11 will likely be left out in the cold without the compensation Congress and the American people intended to provide. Nothing will take away the pain and loss of September 11 and its aftermath for the victims but we owe them the Senate's attention before we adjourn.

New rules for Republican nominees: Rather than consider those important matters, why would the Republican leadership insist on rehashing the debate on the handful of judicial nominees on which further Senate action is unlikely? When they were considering the judicial nominees of a Democratic President in the years 1995 through 2000, they showed no concern about stranding more than 60 of President

Clinton's judicial nominations without hearings or votes. They did not demand an up or down vote on every nominee but were content to use anonymous holds to scuttle scores of qualified nominees. Indeed, they stood cavalierly by while vacancies rose from 65 in January 1995 to 110 when Democrats assumed Senate leadership in the summer of 2001. They presided over the doubling of circuit court vacancies from 16 to 33 during that time.

Indeed, the Republican leader at that time famously came to the Senate floor to defiantly declare that the Senate had confirmed too many of President Clinton's judicial nominees as far as he was concerned. That was when the Senate was considering less than half as many judicial nominees and had more than twice as many judicial vacancies as there are today. During those days the Republican leader said he only had one regret, one apology regarding his obstruction of President Clinton's judicial nominees: ``I probably moved too many already.'' Four years ago, toward the end of the third year of President Clinton's term, a year in which only 34 judges were confirmed, the Republican leader left no doubt that Republicans and the Republican leadership were unrepentant about their delays and obstruction of scores of qualified judicial nominees when he proclaimed: ``Getting more federal judges is not what I came here to do.'' That Republican leader would not schedule votes on President Clinton's judicial nominees when vacancies were much higher and growing in the summer of 2000 and, ironically, sought to use appropriations bills as an excuse. The Senator from Mississippi said: ``[S]pending bills must move first. . . . . Until we get 12 appropriations bills done, there is no way any judge, of any kind, or any stripe, will be confirmed.'' Of course, now the Republican caucus shows little interest in completing the Senate's work on appropriation bills, even though we are no longer in the summer but four months later in the year, well past the deadline and already into the next fiscal year without having even had the Senate initially consider these fundamental legislative matters. As I have noted, just last evening the Republican leadership rebuffed Democratic efforts to complete action on appropriations for our veterans, which could have been done in two hours.

In those years, the Republican chair of the Senate Judiciary Committee repeatedly argued that 67 vacancies in the federal judiciary was ``full employment'' as far as he was concerned. He wrote in USA Today in September 1997, when there were more than 100 judicial vacancies, that there was no judicial vacancy crisis and that the 742 active judges were sufficient. Over the last three years, Democrats have cooperated in confirming 168 judges nominated by this President, including 68 this year; we have reduced judicial vacancies on an expanded federal judiciary to 40; and we have 837 active judges, the most in U.S. history. We have 40 percent fewer vacancies than what Republicans used to call ``full employment'' for the federal judiciary and almost 100 more active judges than just a few years ago when Republicans were content to delay and obstruct President Clinton's nominees and argue that there was no problem.

So why do Republican partisans insist that the Senate now devote its time to rehashing the debate on some of this President's most controversial nominees to the independent federal judiciary? Is it merely coincidence that the Republican leadership has chosen to schedule these proceedings for the week of the Federalist Society's National Convention in Washington? Perhaps this is to give Republicans the opportunity to preen and posture while such an important segment of their base activists are in town. Perhaps it is to give the Republican leadership another chance to make false arguments about judicial nominations. Perhaps it is to give some a platform for baseless and McCarthyite accusations against Democratic Senators. Or perhaps it is to distract from the real concerns that affect Americans every day. Newspapers this week report that this exercise is precipitated because of a ``brewing rebellion by conservative activists.'' Reportedly partisan diehards ``are accusing the Senate GOP leaders of going too easy'' and apparently when Republicans appear on conservative radio talk shows ``they are often barraged with questions'' about why the GOP is not successfully ramming every judicial nominee through the Senate that they control. Apparently this dissatisfaction has even begun to affect Republican fundraising and, according to the Washington Post, ``a recent mailing [by a conservative group] to raise money for candidates yielded empty envelopes'' from those who had formerly contributed. Let us hope that this is not the real reason for this grandstanding. Let us hope that when something begins to affect Republican fundraising, it is elevated to the top of the agenda--the public, the responsibilities of the Senate be dashed.

Mr. President, 168 nominees have been confirmed. If the Republican leadership has staged this vote in order to try to persuade the American people that Democrats are obstructing the President's judicial nominees, they are going to have to stray far from the facts, because the facts show that the Senate has made dramatic progress on judicial vacancies when and where the Administration has been willing to work with the Senate. Indeed, last week the Senate confirmed the 168th of this President's judicial nominees 100 of them, confirmed by the previous Democratic-controlled Senate, in just 17 months. We could confirm several more if the Republican leadership would just schedule the votes. There are other nominees who were reported unanimously by the Judiciary Committee and are just waiting to be confirmed. The number of confirmations could easily total 170 or more if the Republican leadership were truly interested in filling vacancies. Of course, more progress might undercut the partisan message that some are trying to peddle. Maybe that is why for weeks at a time the Republican leadership in the Senate has repeatedly refused to schedule votes on judicial nominees who will be approved, and have chosen is choosing, instead, to focus on the handful of the President's most extreme and divisive nominees.

The truth is that in less than three years' time, the number of President Bush's judicial nominees the Senate has confirmed has exceeded the number of judicial nominees confirmed for President Reagan, the ``all time champ'' at getting Federal judges confirmed, in all 4 years of his first term in office. A handful of the most extreme and controversial nominations have been denied consent by this Senate in the proper exercise of its duties under the rules. Only four. One- hundred-sixty-eight to four. That is in stark contrast to the more than 60 judicial nominees from President Clinton who were blocked by a Republican-led Senate.

McCarthyite smears: If this show is being staged to give some a platform for repulsive smears that Democrats are opposing nominees because of their religion, Republicans will have entered a realm of demagoguery, repeating false allegations and innuendo often enough to hope that some of their mud will stick.

Before they do that again, I would refer them to what the distinguished Senator from Louisiana, Ms. Landrieu, said this morning, because if this was not almost ridiculously contrary to the facts, there is one part in this whole debate that should be troublesome to both Republican and Democratic Senators, and that is the religious McCarthyism that has crept into this debate. The distinguished predecessor of mine, Ralph Flanders of Vermont, stood up on this floor and brought a halt to a member of his own party, Senator Joseph McCarthy, because of the smears he was making, the unsubstantiated smears he was making on people. Now, some of my friends on the right and some of my friends in the Republican Party have been making this smear. They are saying if you are opposed to these people, you are anti-Catholic or anti-Christian. If it was not so hurtful it would be humorous.

I first heard this when a radio talk show said I was anti-family, anti-Catholic. On Sunday morning, they asked my press secretary about it. He said: The Senator did not hear it because he was at mass with his wife of 41 years.

We should not sink to something that we know is not so. Slanderous accusations have already been made by Republican Senators, and ads run by a group headed by the President's father's former White House counsel and

a group whose funding includes money raised by Republican Senators and even by the President's family when they falsely claimed that judicial nominees were being opposed because of their religion. These contentions are despicable and unfounded. Other Republican members of the Judiciary Committee and of the Senate have either stood mute in the face of these McCarthyite charges, or, worse, have fed the flames. Such accusations are harmful to the Senate and to the Nation and have no place in this debate or anywhere else.

Just a few weeks ago, President Bush rightly told the Prime Minister of Malaysia that his inflammatory remarks about religion were ``wrong and divisive.'' He should say the same to members of his own party. Today, Republican Senators have another chance to do what they have not yet done and what this Administration has not yet done: Disavow this campaign of division waged by those who would misuse religion, race and gender by playing wedge politics with it. I hope that the Republican leadership of the Senate will finally disavow the contention that any Senator is being motivated in any way by religious bigotry or for racial or gender-based reasons.

This week rumor is that the Republican public relations machine will be cranking overtime to try to make Democratic Senators appear anti- woman. Led by Senators Mikulski, Feinstein, Boxer, Murray, Landrieu, Lincoln, Cantwell, Clinton, and Stabenow, it is hard to see how Democrats can be subjected to such allegations with a straight face, but that is what the rumor is.

The facts are that under Democratic leadership, the Senate confirmed 100 judicial nominees, including 21 women, nominated by President Bush in just 17 months, including four to our Courts of Appeal. During the 107th Congress, President Bush nominated only 18 women to district court seats, out of 98 district court nominees (18 percent), and only 8 women to circuit courts out of 32 circuit court nominees (25 percent). This year Democrats have supported the confirmation of 12 additional women nominated to the Federal bench, including three to our Courts of Appeal. This President's nominees have included only one woman in each five judicial nominees. The 33 women judges confirmed represent 20 percent of the 168 judges confirmed.

By contrast, nearly one of every three of President Clinton's judges are women. Of course, the Republicans who controlled the Senate and the Judiciary Committee during the Clinton Administration also blocked 18 women nominated to Federal judgeships by President Clinton. Women who were blocked from getting Senate action on their judicial nominations include Kathleen McCree-Lewis, Elena Kagen, Elizabeth Gibson, Helen White, Christine Arguello, and Bonnie Campbell, all of whom were nominated to the circuit courts. These six outstanding women lawyers were not extreme or ideologues. They were outstandingly qualified women lawyers whose nominations were blocked anonymously by Republican Senators, without explanation, without a vote, without accountability.

Records of activism: On important issues to the American people--the environment, voting rights, women's rights, gay rights, Federalism, privacy rights, equal rights, civil rights and more--too many of this President's nominees have records of activism and advocacy. That is their right as American citizens, but that does not make them qualified to be judges. As a judge it would be their duty to impartially hear and weigh the evidence and to impart just and fair decisions to all who come before the court. In their hands, we entrust to the judges in our independent Federal judiciary the rights that all of us are entitled to enjoy through our birthright as Americans.

The President has said he is against what he calls ``judicial activism.'' How ironic, then, that he has chosen several of the most committed and opinionated judicial activists ever to be nominated to our courts.

The question posed by his controversial nominations is not whether they are skilled and capable advocates. The question is whether--not for a 2 year term, or a 6 year term, but for a lifetime--they would be fair and impartial judges. Could every person whose rights or whose life, liberty or livelihood were at issue before their courts, have faith in being fairly heard? The President has chosen to divide the American people and the Senate with his highly controversial nominations. If Republicans want to clean the slate and start fresh, we should do so with nominees who unite the American people, nominees who can be supported by a strong bipartisan majority in the Senate.

We are also hearing the claim by Republicans that the filibuster of a judicial nomination in unprecedented. Republicans themselves filibustered the nominations of Judge Richard Paez and Marsha Berzon as recently as 2000. They previously filibustered the nominations of Judge Rosemary Barkett and Judge H. Lee Sarokin. Of course, while in the majority, Republicans took full advantage of the secret hold and of their control of the agenda to prevent a vote on 63 nominations by not scheduling hearings and votes on them. Many of those now claiming that Senate filibusters are unprecedented participated in them and voted against cloture just a few years ago.

Indeed, as the Senate's own website notes in an articled entitled ``Filibuster Derails Supreme Court Appointment,'' the 1968 nomination of Abe Fortas to be Chief Justice was filibustered with the help of Republicans: ``Although the committee recommended confirmation, floor consideration sparked the first filibuster in Senate history on a Supreme Court nomination.'' The attempt at cloture on the Fortas nomination was rejected by the Senate.

In addition, Republican Senators turned the filibuster of President Clinton's nominees and of legislation into a destructive art form. A nomination to be Surgeon General, Dr. Henry Foster, was defeated by a Republican filibuster, ambassadorial nominations were filibustered and bill and bill was filibustered as Republicans obstructed the work of the Senate and the legislative agenda. For Republicans to claim foul now, after their use of the filibuster tactic, may earn them the political equivalent of an Oscar, Tony or Grammy.

For 3 years I have asked the President and Senate Republicans to join with us to fill the vacancies on the Federal courts with qualified, fair, nonideological judges. Democrats have bent over backwards to support a record number of nominees. When the White House will work with all Senators, we have been able to identify and confirm judges quickly and by consensus. When the President has chosen to select ideological activists and try to pack the courts, we have opposed a handful of his most extreme nominees.

The Federal courts should not be an arm of the Republican Party, nor should they be an arm of the Democratic Party. The Senate should continue to honor its constitutional responsibilities to this third branch of our Federal government and to the American people whose rights are protected by our Federal courts. No President, with or without the complicity of any current majority in the Senate, can be allowed to relegate the Senate to the role of rubber stamp.

Reserving the right to object.

Where is the Hatch-Leahy amendment?

It is not precluded by the unanimous consent request.

Mr. President, when the Senator from Arizona asked to make his unanimous consent request, I was in the process of answering the question of the Senator from Florida, who has spoken to me many times about his interest in these areas.

I appreciate what he has done to strengthen this legislation.

We keep the authority to set sentences where it belongs, with the Sentencing Commission, while remaining deferential, to the discretion of prosecutors.

The provisions from the Senator from Florida make it unmistakably clear that Congress expects this legislation to be used not just to punish spammers but also to dismantle criminal operations that are carried out with spam and other unsolicited bulk e-mail.

I also would note that the Senator from Florida has spoken about spam evolving from being just a nuisance. He is absolutely right. Serious crimes are being committed using this medium, which reaches a large number of people. Senior citizens are more and more often targeted to being bilked out of millions of dollars, and with very little effort on the part of the spammers.

Mr. President, I will engage in a colloquy with Senator Nelson because I think it is important for the purposes of the Record. With all the work the Senator from Florida has done, I want the Record to be very clear.

I would be pleased to engage in a colloquy with the Senator from Florida.

The Senator from Florida is correct. Nowadays, we see that spam has moved far beyond being just a nuisance to people trying to use email on their personal computers. Serious crimes are being committed using this medium, which can reach large numbers of people in a matter of seconds. For example, if a person or organization seeks to commit fraud to bilk senior citizens out of their money, with spam they can reach millions of potential victims at very low, even negligible costs. With such low costs, and such wide reach, even a small rate of success can make for a very profitable criminal enterprise.

The Senator from Florida has made me aware of his interest in these provisions on several occasions, and I appreciate his contributions to this effort. They strengthen the legislation in important ways. While keeping the authority to set sentences where it belongs--with the Sentencing Commission--and while remaining deferential to the discretion of prosecutors, these provisions makes unmistakably clear that Congress expects this legislation to be used not just to punish spammers, but also to dismantle the criminal enterprises that are carried out with spam and other unsolicited bulk e-mail.

Mr. President, it is increasingly obvious that unwanted commercial e-mail is more than just a nuisance. Businesses and individuals sometimes have to wade through hours of spam. It makes it impossible for them to do their work. It slows down whole enterprises.

In my home State of Vermont, one legislator logged on to his server and found that two-thirds of the e-mails in his inbox were spam. Our legislator is a citizen or legislature. He does not have staff or anything else. This was after the legislator had installed spam- blocking software. His computer stopped about 80 percent of it. But even

after he blocked 80 percent, two-thirds of the e-mail he had was spam.

The e-mail users are having the online equivalent of the experience of the woman in the classic Monty Python skit. She wanted to order a Spam-free breakfast at a restaurant. Try as she might, she cannot get the waitress to bring her the meal she wants. Every dish in the restaurant comes with Spam; it is just a matter of how much. There is eggs, bacon, and Spam; eggs, bacon, sausage, and Spam; Spam, bacon, sausage, and Spam; Spam, egg, Spam, Spam, bacon, and Spam; Spam, sausage, Spam, Spam, Spam, bacon, Spam, tomato, and Spam, and so on. Finally, the customer said: I don't like Spam. I don't want Spam. I hate Spam.

Now, I repeat that with apologies to John Cleese and everybody else in the Monty Python skit.

Mr. President, anybody who goes on e-mail, including every member of my family down to my 5-year-old grandchild, knows how annoying spam can be.

A Harris poll taken last year found that 80 percent of the respondents viewed spam as ``very annoying'' and 74 percent wanted to make it illegal.

Some 30 States now have anti-spam laws but it is difficult to enforce them.

There are actually billions of unwanted e-mails that are blocked by ISPs every day. Hundreds of millions of spam e-mails get through just the same.

Now, we have to be very careful when we regulate in cyberspace. We must not forget that spam, like more traditional forms of commercial speech, is protected by the first amendment. We cannot allow spam to result in the ``virtual death'' of the Internet, as one Vermont newspaper put it.

So what Senator Hatch and I have offered and is being accepted--the Hatch-Leahy-Nelson-Schumer amendment--would, first, prohibit hacking into another person's computer system and sending bulk spam from or through that system.

Second, it would prohibit using a computer system that the owner makes available for other purposes as a conduit for bulk spam, with the intent to deceive the recipient as to where the spam came from.

The third prohibition targets another way that outlaw spammers evade ISP filters: falsifying the ``header information'' that accompanies every e-mail and sending bulk spam containing that fake header information. The amendment prohibits forging information regarding the origin of the e-mail message.

Fourth, the Hatch-Leahy-Nelson-Schumer amendment prohibits registering for multiple e-mail accounts or Internet domain names and sending bulk mail from those accounts or domains.

Fifth, and finally, our amendment addresses a major hacker spammer technique for hiding identity that is a common and pernicious alternative to domain name registration--that is, hijacking unused expanses of Internet address space and using them to launch junk mail.

Now, penalties under the amendment are tough, but they are measured. Recidivists and those who send spam in furtherance of another felon may be imprisoned for up to 5 years. The sound of a jail cell closing for 5 years should focus their attention.

Large-volume spammers, those who hack into another person's computer system to send bulk spam, and spam ``kingpins'' who use others to operate their spamming operations may be imprisoned for up to 3 years, and so on.

Then, of course, we direct the Sentencing Commission to look at other areas.

So, Mr. President, I see my colleagues on the floor, Senator Burns and Senator Wyden, who have done yeoman work on this legislation. I compliment all those who worked together. I certainly compliment the two of them, as well as Senator Hatch, Senator Nelson, and Senator Schumer. I think we are putting together something that is worth passing.

Sure.

Mr. President, I thank my dear friend from Oregon for his far too generous words. I have enjoyed working with him. He has carried over from his service in the other body. He has a strong interest in this. Just as important as his strong interest is the fact he has extraordinary expertise in this area. That is very helpful.

If you would allow me one quick personal story. This sort of humbles you. I like to think I am very knowledgeable on this. My 5-year-old grandson climbed in my lap and asked me to log on to a particular interactive site for children. It is something he could do himself, but we don't let him log on himself because of the problems with some sites that appear to be for children, and are anything but.

So I log on for him, and he climbs up on my lap, takes the mouse out of my hand and says: I better take over now because it gets very complicated.

In some ways we are protecting those 5-year-olds because they are the next generation using this technology. I thank my friend from Oregon and good friend from Montana for the enormous amount of work they have done here.

I yield the floor.

Mr. President, it is increasingly apparent that unwanted commercial e-mail, commonly known as ``spam,'' is more than just a nuisance. In the past few years, it has become a serious and growing problem that threatens to undermine the vast potential of the Internet.

Businesses and individuals currently wade through tremendous amounts of spam in order to access e-mail that is of relevance to them--and this is after ISPs, businesses, and individuals have spent time and money blocking a large percentage of spam from reaching its intended recipients.

In my home State of Vermont, one legislator recently found that two- thirds of the 96 e-mails in his inbox were spam. And this occurred after the legislature had installed new spam-blocking software on its computer system that seemed to be catching 80 percent of the spam. The assistant attorney general in Vermont was forced to suggest to computer users the following means to avoid these unsolicited commercial e- mails: ``It's very bad to reply, even to say don't send anymore. It tells the spammer they have a live address . . . The best thing you can do is just keep deleting them. If it gets really bad, you may have to change your address.'' This experience is echoed nationwide.

E-mail users are having the online equivalent of the experience of the woman in the Monty Python skit, who seeks to order a Spam-free breakfast at a restaurant. Try as she might, she cannot get the waitress to bring her the meal she desires. Every dish in the restaurant comes with Spam; it's just a matter of how much. There's ``egg, bacon and Spam''; ``egg, bacon, sausage and Spam''; ``Spam, bacon, sausage and Spam''; ``Spam, egg, Spam, Spam, bacon and Spam''; ``Spam, sausage, Spam, Spam, Spam, bacon, Spam, tomato and Spam''; and so on. Exasperated, the woman finally cries out: ``I don't like Spam! . . . I don't want ANY Spam!''

Individuals and businesses are reacting similarly to electronic spam. A Harris poll taken late last year found that 80 percent of respondents view spam as ``very annoying,'' and fully 74 percent of respondents favor making mass spamming illegal. Earlier this month, more than 3 out of 4 people surveyed by Yahoo! Mail said it was ``less aggravating to clean a toilet'' than to sort through spam. Americans are fed up.

Some 30 States now have antispam laws, but the globe-hopping nature of e-mail makes these laws difficult to enforce. Technology will undoubtedly play a key role in fighting spam, but a technological solution to the problem is not likely in the foreseeable future. ISPs block billions of unwanted e-mails each day, but spammers are winning the battle.

Millions of unwanted, unsolicited commercial e-mails are received by American businesses and individuals each day, despite their own, additional filtering efforts. A recent study by Ferris Research estimates that spam costs U.S. firms $8.9 billion annually in lost worker productivity, consumption of bandwidth, and the use of technical support to configure and run spam filters and provide helpdesk support for spam recipients.

The costs of spam are significant to individuals as well, including time spent identifying and deleting spam, inadvertently opening spam, installing and maintaining antispam filters, tracking down legitimate messages mistakenly deleted by spam filters, and paying for the ISP's blocking efforts.

And there are other prominent and equally important costs of spam. It may introduce viruses, worms, and Trojan horses into personal and business computer systems, including those that support our national infrastructure.

The public has recently witnessed the potentially staggering effects of a virus, not only through the Blaster case I discussed earlier, but with the appearance of the SoBigF virus just 8 days after Blaster began chewing its way through the Internet. This variant also infected Windows machines via e-mail, then sent out dozens of copies of itself. Antivirus experts say one of the main reasons virus writers continue to modify and re-release this particular piece of ``malware'' is that it downloads a Trojan horse to infected computers, which are then used to send spam.

Spammers are constantly in need of new machines through which to route their garbage e-mail, and a virus makes a perfect delivery mechanism for the engine they use for their mass mailings. Some analysts said the SoBigF virus may have been created with a more malicious intent than most viruses, and may even be linked to spam e- mail schemes that could be a source of cash for those involved in the scheme.

The interconnection between computer viruses and spam is readily apparent: Both flood the Internet in an attempt to force a message on people who would not otherwise choose to receive it. Criminal laws I wrote prohibiting the former have been invoked and enforced from the time they were passed it is the latter dilemma we must now confront headon.

Spam is also fertile ground for deceptive trade practices. The FTC has estimated that 96 percent of the spam involving investment and business opportunities, and nearly half of the spam advertising health services and products, and travel and leisure, contains false or misleading information.

This rampant deception has the potential to undermine Americans' trust of valid information on the Internet. Indeed, it has already caused some Americans to refrain from using the Internet to the extent they otherwise would. For example, some have chosen not to participate in public discussion forums, and are hesitant to provide their addresses in legitimate business transactions, for fear that their e- mail addresses will be harvested for junk e-mail lists. And they are right to be concerned. The FTC found spam arriving at its computer system just 9 minutes after posting an e-mail address in an online chat room.

I have often said that Congress must exercise great caution when regulating in cyberspace. Any legislative solution to spam must tread carefully to ensure that we do not impede or stifle the free flow of information on the Internet. The United States is the birthplace of the Internet, and the whole world watches whenever we decide to regulate it. Whenever we choose to intervene in the Internet with government action, we must act carefully, prudently, and knowledgeably, keeping in mind the implications of what we do and how we do it. And we must not forget that spam, like more traditional forms of commercial speech, is protected by the first amendment.

At the same time, we must not allow spam to result in the ``virtual death'' of the Internet, as one Vermont newspaper put it.

The Internet is a valuable asset to our Nation, to our economy, and to the lives of Americans, and we should act prudently to secure its continued viability and vitality.

On June 19 of this year, Senator Hatch and I introduced S.1293, the Criminal Spam Act, together with several of our colleagues on the Judiciary Committee. On September 25, the committee unanimously voted to report the bill to the floor. Today, Senators Hatch, Nelson, Schumer, Grassley and I offered the criminal provisions of S. 1293 as an amendment to S. 877, the CAN SPAM Act. The amendment was adopted by voice vote.

I thank the lead cosponsors of S. 877 for working with us on this amendment, and for their support and cosponsorship of the Criminal Spam Act. I also thank Senator Bill Nelson for his contribution to the amendment.

The Hatch-Leahy amendment prohibits five principal techniques that spammers use to evade filtering software and hide their trails.

First, our amendment prohibits hacking into another person's computer system and sending bulk spam from or through that system. This criminalizes the common spammer technique of obtaining access to other people's e-mail accounts on an ISP's e-mail network, whether by password theft or by inserting a ``Trojan horse'' program--that is, a program that unsuspecting users download onto their computers and that then takes control of those computers--to send bulk spam.

Second, our amendment prohibits using a computer system that the owner makes available for other purposes as a conduit for bulk spam, with the intent of deceiving recipients as to the spam's origins. This prohibition criminalizes another common spammer technique--the abuse of third parties' ``open'' servers, such as e-mail servers that have the capability to relay mail, or Web proxy servers that have the ability to generate ``form'' mail. Spammers commandeer these servers to send bulk commercial e-mail without the server owner's knowledge, either by ``relaying'' their e-mail through an ``open'' e-mail server, or by abusing an ``open'' Web proxy server's capability to generate form e- mails as a means to originate spam, thereby exceeding the owner's authorization for use of that e-mail or Web server. In some instances the hijacked servers are even completely shut down as a result of tens of thousands of undeliverable messages generated from the spammer's e- mail list.

The amendment's third prohibition targets another way that outlaw spammers evade ISP filters: falsifying the ``header information'' that accompanies every e-mail, and sending bulk spam containing that fake header information. More specifically, the amendment prohibits forging information regarding the origin of the e-mail message, and the route through which the message attempted to penetrate the ISP filters.

Fourth, the Hatch-Leahy amendment prohibits registering for multiple e-mail accounts or Internet domain names, and sending bulk e-mail from those accounts or domains. This provision targets deceptive ``account churning,'' a common outlaw spammer technique that works as follows. The spammer registers--usually by means of an automatic computer program--for large numbers of e-mail accounts or domain names, using false registration information, then sends bulk spam from one account or domain after another. This technique stays ahead of ISP filters by hiding the source, size, and scope of the sender's mailings, and prevents the e-mail account provider or domain name registrar from identifying the registrant as a spammer and denying his registration request. Falsifying registration information for domain names also violates a basic contractual requirement for domain name registration falsification.

Fifth and finally, our amendment addresses a major hacker spammer technique for hiding identity that is a common and pernicious alternative to domain name registration--hijacking unused expanses of Internet address space and using them as launch pads for junk e-mail. Hijacking Internet Protocol--IP--addresses is not difficult: Spammers simply falsely assert that they have the right to use a block of IP addresses, and obtain an Internet connection for those addresses. Hiding behind those addresses, they can then send vast amounts of spam that is extremely difficult to trace.

Penalties for violations of these new criminal prohibitions are tough but measured. Recidivists and those who send spam in furtherance of another felony may be imprisoned for up to 5 years. Large-volume spammers, those who hack into another person's computer system to send bulk spam, and spam ``kingpins'' who use others to operate their spamming operations may be imprisoned for up to 3 years. Other offenders may be fined and imprisoned for no more than one year. Convicted offenders are also subject to forfeiture of proceeds and instrumentalities of the offense.

In addition to these penalties, the Hatch-Leahy amendment directs the Sentencing Commission to consider providing sentencing enhancements for those convicted of the new criminal provisions who obtained e-mail addresses through improper means, such as harvesting, and those who knowingly sent spam containing or advertising a falsely registered Internet domain name. We have also worked with Senator Nelson on language directing the Sentencing Commission to consider enhancements for those who commit other crimes that are facilitated by the sending of spam.

I should note that the Criminal Spam Act, from which the amendment is taken, enjoys broad support from ISPs, direct marketers, consumer groups, and civil liberties groups alike. It is also supported by the administration: In its September 11, 2003, views letter regarding the CAN SPAM Act, the administration advocated the addition to CAN SPAM of felony triggers similar to those proposed in the Criminal Spam Act. The administration further supported our proposal, advanced in the Hatch- Leahy amendment, to direct the Sentencing Commission to consider sentencing enhancements for convicted spammers that have additionally obtained e-mail addresses by harvesting.

Again, the purpose of the Hatch-Leahy amendment is to deter the most pernicious and unscrupulous types of spammers--those who use trickery and deception to induce others to relay and view their messages. Ridding America's inboxes of deceptively delivered spam will significantly advance our fight against junk e-mail. But it is not a cure-all for the spam pandemic.

The fundamental problem inherent to spam--its sheer volume--may well persist even in the absence of fraudulent routing information and false identities. In a recent survey, 82 percent of respondents considered unsolicited bulk e-mail, even from legitimate businesses, to be unwelcome spam. Given this public opinion, and in light of the fact that spam is, in essence, cost-shifted advertising, we need to take a more comprehensive approach to our fight against spam.

While I am generally supportive of the CAN SPAM Act, and will vote in favor of passage, it does raise some concerns. The bill takes an ``opt out'' approach to spam--that is, it requires all commercial e-mail to include an ``opt out'' mechanism, by which e-mail recipients may opt out of receiving further unwanted spam. My concern is that this approach permits spammers to send at least one piece of spam to each e- mail address in their database, while placing the burden on e-mail recipients to respond. People who receive dozens, even hundreds, of unwanted e-mails each day may have little time or energy for anything other than opting-out from unwanted spam.

According to one organization's calculations, if just one percent of the approximately 24 million small businesses in the U.S. sent every American just one spam a year, that would amount to over 600 pieces of spam for each person to sift through and opt out of each day. And this figure may be conservative, as it does not include the large businesses that also engage in online advertising.

I am also troubled by the labeling requirement in the CAN SPAM Act, which makes it unlawful to send an unsolicited commercial e-mail message unless it provides, among other things, `` clear and conspicuous identification that the message is an advertisement or solicitation,'' and ``a valid physical postal address of the sender''. While we all want to curb spam, we must be mindful of its status as protected commercial speech, and ensure that any restrictions we impose on it are as narrowly tailored as possible.

Reducing the volume of junk commercial e-mail, and so protecting legitimate Internet communications, is not an easy matter. There are important First Amendment interests to consider, as well as the need to preserve the ability of legitimate marketers to use e-mail responsibly. We must be sure we get this right, so as not to exacerbate an already terribly vexing problem. This is especially important given the preemption provisions of the CAN SPAM Act, which will override many of the tough anti-spamming laws already enacted by the States.

My distinguished colleagues from Wyoming and Pennsylvania offered an amendment requiring ``warning labels'' on certain commercial electronic mail. While I appreciate my colleagues' efforts to protect our children from the on-line assault of internet pornography--an important goal that we all share--I fear the amendment has been drafted in haste and raises significant constitutional issues that require further analysis.

First, the amendment incorporates broad and vague phrases such as ``devoted to sexual matters'' that are not otherwise defined in the law. I expressed similar concerns during debate on the Communications Decency Act, CDA, which the Supreme Court struck down as unconstitutional in 1996. The CDA also punished as a felony anyone who transmitted ``obscene'' or ``indecent'' material over the Internet. The CDA was deemed too vague as to what was ``indecent'' or ``obscene.'' Some of the terms and phrases used in the Enzi-Santorum amendment may be deemed equally vague when subjected to judicial scrutiny.

There are also first amendment concerns to regulating commercial electronic mail in ways that require specific labels on protected speech. Such requirements inhibit both the speaker's right to express and the listener's right to access constitutionally protected material.

More importantly, existing laws already ban obscenity, harassment, child pornography and enticing minors into sexual activity.

As a father and a grandfather, I well appreciate the challenge of limiting a child's exposure to sexually inappropriate material. Yet, no legislation we could pass would be an effective substitute for parental involvement. We must be vigilant about feel-good efforts to involve government, either directly or indirectly, in regulating the content of the Internet.

For these reasons, the Enzi-Santorum amendment raises serious legal issues that mandate further exploration before a determination can be made on the proposed law's constitutional viability.

I look forward to continuing to work with the sponsors of the CAN SPAM Act on these issues as the bill proceeds to conference.

Madam President, kingpin spammers who send out emails by the millions are threatening to drown the Internet in a sea of trash. The American people want it stopped. Every single day the Senate delays, these big-time spammers, the ones who are trying to take advantage of the open and low-cost nature of the Internet, gives them another opportunity to crank up their operations to even more dizzying levels of volumes.

Every Member of the Senate is hearing from citizens. This is a consumer abuse that is visited on millions of people every day. It is now time to put in

place strong enforcement tools to protect the public.

Many are asking, what is the role of Federal legislation? My colleagues have talked a bit about there not being a silver bullet. The key is to pass this bill and come down on the violators with hobnail boots. It is fair to say a lot of the big-time abusers are not exactly quaking today about the prospect of Senate action. They are not technological simpletons. They are very savvy and they figure any law that is passed by the Senate they can get out in front of.

What is going to be important is for those who are charged with enforcement--the Federal Trade Commission, the criminal authorities, we give a role to the State attorneys general, the Internet service providers--when this bill is signed into law, to bring a handful of actions very quickly to establish that for the first time there is a real deterrent, there will be real consequences when those big-time spammers try to exploit our citizens. When the bill takes effect, for the first time those violators are going to risk criminal prosecution, Federal Trade Commission enforcement, and million-dollar lawsuits by the State attorneys general and Internet service providers.

The reason that is the case is because big-time spammers have to violate this bill in order for their sleazy business to work. If they do not hide their identities, their messages end up getting filtered out by the Internet service providers. If they do not use misleading subject lines, people are going to click the messages straight into the trash, unread. It is costly to deal with thousands of demands for consumers to be removed from the lists. The day this bipartisan legislation becomes law, for the first time big-time spamming will become an outlaw business.

It is worth noting when Senator Burns and I started this effort nearly 4 years ago, we had the strong support of Senator McCain. Senator Hollings has been tremendous to me. I got involved in this shortly after joining the Commerce Committee. A lot of people asked, why in the world would Conrad Burns and I be spending our time on something like this. They essentially intimated this was not the kind of issue important enough for the Senate. They said, Senators deal with key matters. They deal with war and peace and entitlement programs. Why in the world would the Senate get involved with something like spam. It was only 6 to 8 percent when we started in 2000. Why is the Senate spending its time on that kind of concern? Suffice it to say, nobody is saying any longer spam is just a minor annoyance. Nobody is saying the delete key is now going to be a sufficient solution to the problem.

This is now something that threatens this medium. Spam, in the view of experts, and in my view, stunts the growth of e-commerce. And if it continues at the rate of growth we have seen in the last few years, I think it will engulf the entire medium.

So something the American people use every day, something that is considered a vibrant, exciting tool, that has empowered millions of people to learn, to be part of cultural activities, to start small businesses--if nothing is done, if somehow this legislation goes by the board or the Senate and House cannot agree, I think what we are seeing in the days ahead is a genuine threat to the entire medium.

So with respect to the specifics of the bill, I think there are a number of key provisions. One I have stressed is the question of misleading identities because I think that goes right to the heart of how you set in place a strong enforcement regime.

But I also emphasize the role of the States here this afternoon. At this point, over half the States have enacted State-level spam legislation. It is pretty easy to see why the States have acted. They are frustrated that the Congress has not moved.

But I believe a State-by-State approach cannot work in this area. The numerous State laws to date certainly have not put in place a coordinated effort against spam. Neither the Internet nor the big-time spammers is sitting around saying: Let's tip our hat to State jurisdictions. And certainly an e-mail address, unlike a phone number, does not reveal the State in which the holder of the address is located. So compliance with a patchwork of inconsistent State laws is virtually impossible, and spammers do not even go through the motions of trying.

What is needed is a uniform, nationwide spam standard to put the spammers on notice and to empower the consumers to have an enforcement regime consistent with their reasonable expectations.

Having emphasized the importance of a nationwide, uniform standard in this area, the legislation does preserve an important role for the States.

First, the State laws that address deception in spam--deception in spam--would be preserved. Second, general consumer protection fraud and computer abuse laws would remain enforceable as well. And third, the bill authorizes States' attorneys general to use the Federal statute to prosecute spammers.

The bottom line is, our States, which have done so much important and innovative work in the area of consumer protection, are going to remain active and important partners in the battle against spam.

Shortly, we will be talking about the Do Not E-mail Registry. I commend Senators Schumer and Dayton. Both of them have introduced legislation in this area. They deserve a great deal of credit with respect to their patience on this legislation. And we know it is a challenge. The telephone Do Not Call list is certainly facing a lot of battles.

But I think this is an important idea. I think it is an idea that makes a genuine contribution. It certainly is one that the American consumer wants. We are going to work with the sponsors, Senator Schumer and Senator Dayton, and others who have been so interested in this to address the various questions that have been brought up with respect to feasibility.

I also commend Senator Nelson of Florida. These big-time spammers-- there are only a few hundred of them. I think Senator McCain and I were struck, as we listened to the debate, at the fact that we are talking about a few hundred big-time violators. They seem to have gravitated to a couple States, particularly Florida and Texas.

Senator Nelson has been very interested in ensuring that there are tough enforcement provisions in this legislation. I share his view that we ought to use all of the enforcement tools, including measures such as the RICO statute, against these particularly reprehensible violators. I commend Senator Nelson for this effort as well.

Finally, as we put together a coordinated game plan against the spammers, I would also like to emphasize that we expect our trading partners, and the many countries that look to do business with the United States, to play a more activist role in this area. As sure as night follows day, some of these kingpin spammers are going to just move offshore and set up shop.

So as we look to the future, I have stressed enforcement. I think we need to see aggressive enforcement action the day this bill is signed into law. Then we have to push our trading partners around the world to work with us to ensure that, as part of a coordinated strategy, we are preventing the big-time violators from simply closing down in the United States and moving offshore.

I have tried to specialize in technology issues in my time in the Senate. My State cares greatly about this issue. I have been fortunate to have a chairman in Senator McCain who has always encouraged these efforts, to deal with Internet taxes, digital signatures, Y2K liability--and the list goes on and on. And Senator Hollings, who is not in the Chamber, has been extraordinarily supportive of my involvement in these issues.

But I think it is fair to say that this spam question--of all the technology issues we have tackled in the last few years in the Commerce Committee, I cannot think of another one that has inflamed consumers more, has been emphasized more to me at townhall meetings.

I can tell the Senate, at the time when we were all concerned about the well-being of our troops and the conflict in Iraq, folks would also say, in addition to standing up for our troops: Make sure you do something about spam as well. I think it is indicative of how much concern there is in the country with respect to these kingpin spammers who really do put at risk--I do not say this lightly--an entire medium that has made such a difference and been so important for millions of Americans.

We are going to deal expeditiously with the amendments. A number of colleagues have already asked of the managers what we thought the timetable of this bill would be. My guess is, we can deal with this legislation certainly within the next couple of hours, at most.

We urge Senators who have an interest in this matter to come to the floor. This is an opportunity for the Senate to stand up for the consumer.

We are not going to overpromise. We are not going to say that the day this bill is signed, spam will magically vanish into the vapor. But this legislation, coupled with an enforcement strategy that has the Federal Trade Commission, criminal authorities, pushing spam as it relates to these big-time violators up the priority list of the tasks that they face--that kind of strategy can make a difference.

Madam President, with that, I yield the floor.

Madam President, I send an amendment to the desk.

Madam President, I offer this amendment on behalf of myself and Senator Burns. It is technical in nature. I know of no opposition.

It clarifies that header information that is technically false, but in such a minor way as to be nonmaterial, will not be actionable under the legislation.

It clarifies that spammers who knowingly route messages through what are called open relays in order to erase the message's originating information--which is a technique used by these big-time spammers--will be treated as having used false or misleading header information.

It permits the Federal Trade Commission to modify the bill's deadline for how quickly ``opt-out requests'' must be processed. Currently, the bill says that 10 business days after receiving a consumer's opt-out request, any further e-mails from the sender become punishable.

The amendment permits the Federal Trade Commission to modify that time period if it finds that a different period would be appropriate. It permits the Federal Trade Commission, if it identifies new and particularly nefarious techniques used by spammers, to add those techniques to the list of what are called aggravated violations so that spammers who use those techniques would be subject to higher penalties.

Finally, this amendment, which has the support of Chairman McCain and Senator Hollings, would clarify that any lawsuits for violations of Federal spam rules should be brought in Federal court. It is noncontroversial in nature. I urge its passage.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 1892

Madam President, I suggest the absence of a quorum.

Madam President, at this time, I ask unanimous consent that the previously agreed-to Burns-Wyden technical amendment, No. 1891, be modified with the change I now send to the desk.

Madam President, this is also a very modest technical amendment. This amendment simply ensures that the Do Not E-mail Registry proposed would be considered on the timetable that all of the parties who have worked on this had intended. It is very noncontroversial.

Will the Senator yield?

Madam President, I will be very short.

Without turning this into a bouquet-tossing contest, let me thank my friend from Florida. Of course, many of the worst violators are people I call kingpin spammers who are located in his home State. The Senator from Florida brought it to the attention of Senator Burns and I that to have an effective enforcement strategy, we had to have in place tools that would deal with the kind of shady operators who are present in his home State.

The Senator from Florida has hammered on that message. I think by the time we are done this afternoon and have Senator Leahy on the floor as well, Senator Nelson's contribution will be especially helpful, not just in Florida but in terms of dealing with these kingpin spammers, the people who send out millions of e-mail now without consequences.

I thank my colleague for yielding, and I thank him for keeping this issue on the radar.

I say to the Senator from New York, I appreciate his patience on this. I think he knows from the outset my concern was not with the nature of this, because clearly empowering consumers to make these kinds of choices is essential. What is important is to try to figure out how to do this right.

The Senator from New York knows people change their e-mail addresses constantly. In that sense, this is different than a telephone. We all understand that if a bad spammer, for example, one of these kingpin operators, was to hack into this, what a gold mine for an evil person who wanted to exploit our citizens. The Senator from New York has been acutely aware of it and that is why he has worked with me, Senator Burns, and all of those on the Commerce Committee. I commend him for his patience.

This is an important contribution. We have a lot of work to do, because we have seen with the Do Not Call list what the challenge is. I personally believe in the telecommunications area we ought to establish, as kind of a bedrock principle, that there is a First Amendment right to communicate, but there also is a right of the consumer to say, I have had it. In effect, that is what the Senator from New York is allowing us to do in the spam area, and to do it in a responsible way.

I thank my colleague from Arizona for giving me this time. With a little luck, we will be able to dispose of the additional spam amendments and send this bill on its way.

Madam President, will the Senator from Utah yield?

I commend the Senator from Utah for his efforts in this area. The contribution the Senator from Utah makes is not just useful but it is absolutely critical. We can write bills to fight spam until we run out of paper, but unless we have the kind of enforcement the Senator from Utah envisions, we are not going to get the job right.

I am particularly interested in working with the distinguished chairman of the Judiciary Committee in making sure we have some vigorous oversight after this bill is enacted into law. If after this bill is passed we have the prosecutors, the Federal Trade Commission, and others bring some tough enforcement actions, that will be a tremendously valuable deterrent.

I would like to work with the distinguished chairman of the committee to have some vigorous oversight hearings after this bill has gone into effect. That is what it is going to take to make sure we have the teeth in this legislation to make a difference. I thank my colleague.

I ask unanimous consent to add Senator Harkin's name to that list and then I support the unanimous consent.

Mr. President, just before he leaves the floor, I thank the distinguished Senator from Vermont for all his help. I have already told Senator Hatch how incredibly important the enforcement provision is. You can write bills forever, but without the enforcement to which the Senator from Vermont and the Senator from Utah are committed, those bills are not going to get the job done.

Suffice it to say, when there were a lot of people in public life who thought their computers were somehow a TV screen, the Senator from Vermont was already leading the Senate and those who work in the public policy arena to understand the implications of the medium.

There is nobody in public life whose counsel I value more on telecommunications and Internet policy than the distinguished Senator from Vermont. I appreciate his giving me this opportunity to work with him on the enforcement provisions. It will be the lifeblood of making this bill work.

Mr. President, we are very close to being able to pass this bill tonight. This is an extraordinarily important consumer measure, a measure that literally touches the lives of millions of people every single day. At this point, we have only three amendments left. The Senator from New Jersey, Mr. Corzine, has an amendment; the Senator from Wyoming, Mr. Enzi, is to offer an amendment with Senator Santorum; and then Senator Landrieu has an amendment.

I am very hopeful we will be able to finish this bill fairly shortly. I urge those Senators who have their amendments in order to come to the floor at this point. This is legislation that has been worked on for more than 4 years. During that time, this problem has grown exponentially. A number of Senators have spoken about it, and the Senate ought to move ahead.

I suggest the absence of a quorum.

Before the Senator from Tennessee leaves the floor, I say to him I have my hands full today with spam so I am not going to get into the substance of the Internet Tax Freedom Act that, as my friend knows, I have been a sponsor of in the Senate with Congressman Cox in the other body. I am always anxious to work with my colleague from Tennessee.

Essentially, the arguments being made today against the Internet Tax Freedom Act are identical to the ones that were made 5 years ago. If we were to look at the transcript 5 years ago before the Senate Commerce Committee, we were told the States and localities would be stripped of the revenue they needed. We were pretty much told western civilization was going to end at that time.

Ever since then, as we have gone through 5 years of experience, we have not seen that to be the case. States and localities have not been stripped of the revenue they need. Internet sales are still perhaps only 2 percent of the economy. No jurisdiction has shown that they have been hurt by their inability to discriminate against the Internet, and that is all this law stands for is technological neutrality, treating the online world like the offline world is treated.

As I said to my good friend, I have my hands full today with spam so we will debate the Internet Tax Freedom Act another day. I am anxious to work with my colleague. I would only point out the reauthorization of the Internet Tax Freedom Act passed the Commerce Committee unanimously. It is the first time since we have been at this that it has been passed unanimously. I think it is going to be an important debate I will certainly be anxious to talk with my colleague about at that time.

Again, we are hoping those with the amendments that have been made in order to the spam bill will come to the floor. We could finish this legislation in perhaps half an hour, pass a very important proconsumer measure by pretty close to a unanimous vote in the Senate. Senator Burns and I are certainly hoping that will be the case and hope in particular that Senator Corzine, Senator Enzi, and Senator Santorum will come to the floor and we could be done very quickly.

I suggest the absence of a quorum.

Madam President, let me associate myself with the remarks of the distinguished chairman of the committee. Every Member understands that pornography being transmitted through spam is a scourge. There is no question about it. What we have done, because we have just seen this, is we have asked the minority on the Judiciary Committee, under the leadership of Senator Leahy, to take a look at this. We are very hopeful that we will be able to approve this language in just a few minutes. Again, we are hoping that this bill will be passed, certainly within 20, 25 minutes, and we will have a comment from the Democrats on the Judiciary Committee very shortly.

I share Chairman McCain's view that this is an extremely important issue. When you think about spam, the first thing parents all over this country think about is the flood that is being targeted at families from coast to coast. I am hopeful we will get this approved in a matter of minutes.

I suggest the absence of a quorum.

Madam President, on behalf of the minority, Senator Hollings believes that Senator Landrieu is raising a very important issue for consumers and kids. We do want to work closely with her and move ahead on her initiative. It is an important one for families.

Madam President, I think we are about ready to actually move to final passage. We have the Corzine amendment and another one coming from the Senator from Iowa. I think we are very close to being able to move ahead.

I wish to express my thanks to the leadership of the committee and my partner for over 4 years, Senator Burns, on this legislation.

The bottom line here is that when this bill becomes law, big-time spamming, in effect, becomes an outlaw business. For the first time, the kingpin spammers are going to be at risk of Federal prosecution, Federal Trade Commission enforcement, million-dollar lawsuits by State attorneys general and Internet service providers. The reason that is the case is that big-time spammers would have to violate this bill in order for their sleazy operations to continue. If they don't hide their identity, their messages will get filtered out. If they don't use misleading subject lines, people are going to go click and these garbage messages will go straight into the trash unread.

It seems to me there is a chance now, recognizing that we still need international cooperation and tough enforcement, to make a very significant step forward for consumers all across the country.

I will conclude by way of saying that, again, I think enforcement is going to be the key to making this legislation work. When this bill is signed into law, I have been saying that the enforcers--the Justice Department, State attorneys general, Internet service providers, and others--have to be prepared to come down on those 200 or 300 big-time spammers with hobnail boots. A lot of them are not exactly quaking tonight at the prospect of Senate action. They are not convinced that the Senate is really going to insist on strong oversight. We saw today, because of what was said by Senator Hatch and Senator Leahy, that they are committed to strong enforcement and vigorous oversight.

I believe as a result of the attention the Senate has given to this issue, when this bill is signed into law, we are going to see very quickly a handful of very tough, significant enforcement actions with real penalties and the prospect of spammers going to jail and paying million-dollar fines. That is the kind of deterrence we need.

The text of this law is very important, but it is only as good a law as we see backed up by enforcement. We have a commitment today from Chairman Hatch and Senator Leahy to follow up and ensure that that kind of enforcement takes place. With that, I think we take a very significant step forward in terms of protecting the rights of consumers who right now find a blizzard of spam every single time they turn on their computer.

I yield the floor and I suggest the absence of a quorum.

Mr. President, on behalf of Senator Hollings, this is what we think Government ought to be about: going to bat for these people. I encourage the Senate to adopt the Harkin amendment.

Mr. President, very briefly, I think the Senator from Pennsylvania is trying to address a very important issue. We have asked for the Democrats on the Senate Judiciary Committee, under Senator Leahy's leadership, to take a look at it. I think we will have that answer quickly.

As the Senator knows, some of the definitions in this area can get fairly technical. We also understand that pornography, which is conveyed through spam across the Internet, is a real public scourge. We are interested in getting the Senator's amendment adopted. I am hopeful we will be able to support it.

Mr. President, I also support the amendment. This is a compromise. Both of these topics are topics about which we really have not heard a lot. We have not had a chance to discuss them in hearings. Senator Corzine has been working constructively with us. I urge the passage of it.

The bounty issue essentially comes from Professor Lessig at Stanford, looking at innovative ways to create incentives to deal with the problem. It is certainly one the Federal Trade Commission should look at. The question about making sure every unsolicited e-mail has ADV has been contentious among a number of small business groups, ones that have really been burdened by these costs. But I think this is a fair compromise. It gives the Federal Trade Commission ample opportunity to study this and look at the feasibility of it. I urge our colleagues to support it.

As soon as we agree to the Corzine amendment, I believe Senator Harkin has a unanimous consent request he needs to make, and then we are ready to go to final passage. I urge my colleagues now to support the Corzine amendment.

Mr. President, I am pleased to be introducing, with Senators Hatch, Schumer, Grassley, Feinstein, DeWine, and Edwards, the Criminal Spam Act of 2003. This bill is designed to counter the most objectionable forms of email marketing. In an effort to clear electronic channels for legitimate communications, the bill targets those spammers who deceive Internet Service Providers, ``ISPs'', and email recipients into thinking that messages come from someone other than a spammer--a ploy many spammers use to increase the likelihood that their unwanted ads will evade filtering software and be opened.

Without a doubt, spam is a serious problem today, one that is threatening to undermine the vast potential of the Internet to foster the free exchange of information and commerce. Businesses and individuals currently wade through tremendous amounts of spam in order to access email that is of relevance to them--and this is after ISPs, businesses, and individuals have spent time and money blocking a large percentage of spam from reaching its intended recipients.

Email users are having the online equivalent of the experience of the woman in the Monty Python skit, who seeks to order a spam-free breakfast at a restaurant. Try as she might, she cannot get the waitress to bring her the meal she desires. Every dish in the restaurant comes with Spam; it's just a matter of how much. There's ``egg, bacon and Spam''; ``egg, bacon, sausage and Spam''; ``Spam, bacon, sausage and Spam''; ``Spam, egg, Spam, Spam, bacon and Spam''; ``Spam, sausage, Spam, Spam, Spam, bacon, Spam, tomato and Spam''; and so on. Exasperated, the woman finally cries out: ``I don't like Spam! . . . I don't want ANY Spam!''

Individuals and businesses are reacting similarly to electronic spam. A Harris poll taken late last year found that 80 percent of respondents view spam as ``very annoying,'' and fully 74 percent of respondents favor making mass spamming illegal. They are fed up.

ISPs are doing their best to shield customers from spam, blocking billions of spam each day, but the spammers are winning the battle. Millions of unwanted, unsolicited commercial emails are received by American businesses and individuals each day, despite their own, additional filtering efforts. A recent study by Ferris Research estimates that spam costs U.S. businesses $8.9 billion annually as a result of lost productivity and the need to purchase more powerful servers and additional bandwidth; to configure and run spam filters; and to provide help-desk support for spam recipients. The costs of spam are significant to individuals as well, including time spent identifying and deleting spam, inadvertently opening spam, installing and maintaining anti-spam filters, tracking down legitimate messages mistakenly deleted by spam filters, and paying for the ISPs' blocking efforts.

And there are other less prominent but equally important costs of spam. It may introduce viruses, worms, and Trojan Horses into personal and business computer systems, including those that support our national infrastructure. It is also fertile ground for deceptive trade practices. The FTC recently estimated that 96 percent of the spam involving investment and business opportunities, and nearly half of the spam advertising health services and products, and travel and leisure, contains false or misleading information.

This rampant deception has the potential to undermine Americans' trust of valid information on the Internet. Indeed, it has already caused some Americans to refrain from using the Internet to the extent that they otherwise would. For example, some have chosen not to participate in public discussion forums, and are hesitant to provide their addresses in legitimate business transactions, for fear that their email addresses will be harvested for junk email lists. And they are right to be concerned. The FTC found spam arriving at its computer system just nine minutes after posting an email address in an online chat room.

At a recent FTC forum on spam, experts agreed that the issue is ripe for Federal action. Some 30 States now have anti-spam laws, but the nature of email makes it difficult to discern where any given piece of spam originated, and, thus, what State has jurisdiction and what State law applies. This may explain why spammers continue to flout State laws. For example, several States require that spam begin the subject line with ``ADV,'' but the FTC has found that only 2 percent of spam contains this label.

Technology will undoubtedly play a key role in fighting spam. However, a technological solution to the problem is not predicted in the foreseeable future. In addition, given the adroitness with which spammers adapt to anti-spam technologies, the development and implementation of technological fixes to spam entail constant vigilance and substantial financial investment. This raises the question: Why should individuals and businesses be forced to invest large amounts of time and money in buying, installing, and maintaining generation after generation of anti-spam technologies?

I have often said that the government should regulate the Internet only when absolutely necessary. Unfortunately, spammers have caused this to be one of those times. Congress needs to address the spam problem quickly and prudently, and the Criminal Spam Act, by targeting the most injurious types of spam, is a good start.

The bill that Senator Hatch and I introduce today would prohibit the four principal techniques that spammers use to evade filtering software and hide their trails.

First, our bill would prohibit hacking into another person's computer system and sending bulk spam from or through that system. This would criminalize the common spammer technique of obtaining access to other people's email accounts on an ISP's email network, whether by password theft or by inserting a ``Trojan horse'' program--that is, a program that unsuspecting users

download onto their computers and that then takes control of those computers--to send bulk spam.

Second, the bill would prohibit using a computer system that the owner makes available for other purposes as a conduit for bulk spam, with the intent of deceiving recipients as to the spam's origins. This prohibition would criminalize another common spammer technique--the abuse of third parties' ``open'' servers, such as email servers that have the capability to relay mail, or Web proxy servers that have the ability to generate ``form'' mail. Spammers commandeer these servers to send bulk commercial email without the server owner's knowledge, either by ``relaying'' their email through an ``open'' email server, or by abusing an ``open'' Web proxy server's capability to generate form emails as a means to originate spam, thereby exceeding the owner's authorization for use of that email or Web server. In some instances the hijacked servers are even completely shut down as a result of tens of thousands of undeliverable messages generated from the spammer's email list.

The bill's third prohibition targets another way that outlaw spammers evade ISP filters: falsifying the ``header information'' that accompanies every email, and sending bulk spam containing that fake header information. More specifically, the bill prohibits forging information regarding the origin of the email message, the route through which the message attempted to penetrate the ISP filters, and information authenticating the user as a ``trusted sender'' who abides by appropriate consumer protection rules. The last type of forgery will be particularly important in the future, as ISPs and legitimate marketers develop ``white list'' rules whereby emailers who abide by self-regulatory codes of good practices will be allowed to send email to users without being subject to anti-spamming filters. There is currently substantial interest among marketers and email service providers in ``white list'' technology solutions to spam. However, such ``white list'' systems would be useless if outlaw spammers are allowed to counterfeit the authentication mechanisms used by legitimate emailers.

Fourth and finally, the Criminal Spam Act prohibits registering for multiple email accounts or Internet domain names, and sending bulk email from those accounts or domains. This provision targets deceptive ``account churning,'' a common outlaw spammer technique that works as follows. The spammer registers, usually by means of an automatic computer program, for large numbers of email accounts or domain names, using false registration information, then sends bulk spam from one account or domain after another. This technique stays ahead of ISP filters by hiding the source, size, and scope of the sender's mailings, and prevents the email account provider or domain name registrar from identifying the registrant as a spammer and denying his registration request. Falsifying registration information for domain names also violates a basic contractual requirement for domain name registration.

Penalties for violations of these provisions are tough but measured. Recidivists and those who send spam in furtherance of another felony may be imprisoned for up to five years. Large-volume spammers, those who hack into another person's computer system to send bulk spam, and spam ``kingpins'' who use others to operate their spamming operations may be imprisoned for up to three years. Other offenders may be fined and imprisoned for no more than one year. Convicted offenders are also subject to forfeiture of proceeds and instrumentalities of the offense.

In addition to these criminal penalties, offenders are also subject to civil enforcement actions, which may be brought by either the Department of Justice or by an ISP. Civil remedies are important as a supplement to criminal enforcement for several reasons. First, bringing cases against outlaw spammers is very resource intensive because of the extensive forensic work involved in building a case; providing for civil enforcement will allow ISPs to assemble evidence to make prosecutors' jobs easier. Second, although criminal prosecutions are a critical deterrent against the most egregious spammers, the Justice Department is unlikely to prosecute all outlaw spam cases; civil enforcement, backed by strong financial penalties, will serve as a second layer of deterrence. Third, criminal penalties may not be appropriate in all cases, as for example in the case of teenagers hired by professional outlaw spammers to send out email for them; civil enforcement gives the Justice Department a more complete and refined range of tools to address specific outlaw spam problems.

That describes the main provisions of our bill. In addition, because commercial email can be, and is being, sent from all over the world into the virtual mailboxes of Americans, the bill directs the Administration to report on its efforts to achieve international cooperation in the investigation and prosecution of outlaw spammers.

Again, the purpose of the Criminal Spam Act is to deter the most pernicious and unscrupulous types of spammers--those who use trickery and deception to induce others to relay and view their messages. Ridding America's inboxes of deceptively delivered spam will significantly advance our fight against junk email. But the Criminal Spam Act is not a cure-all for the spam pandemic.

The fundamental problem inherent to spam--its sheer volume--may well persist even in the absence of fraudulent routing information and false identities. In a recent survey, 82 percent of respondents considered unsolicited bulk email, even from legitimate businesses, to be unwelcome spam. Given this public opinion, and in light of the fact that spam is, in essence, cost-shifted advertising, it may be wise to take a broader approach to our fight against spam.

One approach that has achieved substantial support is to require all commercial email to include an ``opt out'' mechanism, that is, a mechanism for consumers to opt out of receiving further unwanted spam. At the recent FTC forum, several experts expressed concerns about this approach, which permits spammers to send at least one piece of spam to each email address in their database, while placing the burden on email recipients to respond. People who receive dozens, even hundreds, of unwanted emails each day would have little time or energy for anything other than opting-out from unwanted spam.

According to one organization's calculations, if just one percent of the approximately 24 million small businesses in the U.S. sent every American just one spam a year, that would amount to over 600 pieces of spam for each person to sift through and opt-out of each day. And this figure may be conservative, as it does not include the large businesses that also engage in on-line advertising.

A second possible approach to spam--a national ``Do Not Spam'' registry--raises a different but no less difficult set of concerns. The two FTC Commissioners who testified last month at the Senate Commerce Committee's hearing on spam both questioned the potential of a national registry to alleviate the spam problem. Although this approach would place a smaller burden on consumers than would an opt-out system, it would entail immense costs, complexity, and delay, all of which work in the spammers' favor.

A third way of attacking spam--and one that was favored by many panelists and audience members at the FTC forum--is to establish an opt-in system, whereby bulk commercial email may only be sent to individuals and businesses who have invited or consented to it. This approach has strong precedent in the Telephone Consumer Protection Act of 1991, TCPA, which Congress passed to eliminate similar cost- shifting, interference, and privacy problems associated with unsolicited commercial faxes. The TCPA's ban on faxes containing unsolicited advertisements has withstood First Amendment challenges in the courts, and was adopted by the European Union in July 2002.

I have discussed three possible approaches to the spam problem, and there are several others, some of which have already been codified in state law. I encourage the consideration of all these anti-spam approaches in the weeks and months to come.

Reducing the volume of junk commercial email, and so protecting legitimate Internet communications, will

not be easy. There are important First Amendment interests to consider, as well as the need to preserve the ability of legitimate marketers to use email responsibly. If Congress does act, it must get it right, so as not to exacerbate an already terribly vexing problem.

The Criminal Spam Act is a first step in countering spam. If we can shut down the spammers who use deception to evade filters and confuse consumers, we will give the next generation of anti-spam technologies a chance to do their work. Our bill targets the most egregious offenders, it provides a much-needed federal cause of action, and it allows the states to continue to serve as a ``laboratory'' for tough anti-spamming regulation. I urge its speedy enactment into law.