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A tougher version of the CAN-Spam bill was approved by the Senate Commerce Committee in June. Stronger provisions added since the bill was introduced in April include a do-not-spam registry, higher statutory penalties and a clause making a company responsible if spam is used to market its products.

The Direct Marketing Association, which supported the previous version of CAN-Spam, is examining the changes to make sure the bill is “still in line with our policies,” said Jim Conway, vice president of government relations at the DMA.

“We have supported the Burns-Wyden bill but are against a do-not-e-mail list.”

Sponsored by Sens. Conrad Burns (R-MT) and Ron Wyden (D-OR), the CAN-Spam bill makes it illegal for anyone to use fraudulent or deceptive headers or subject lines in an e-mail.

CAN-Spam will be voted on by the full Senate in the near future, said Jennifer O'Shea, a spokeswoman in Burns' office.

The bill, which was approved by the committee by unanimous vote, included an eleventh-hour provision calling for a national do-not-spam list, similar to the Federal Trade Commission's do-not-call registry. This new language requires the FTC to “offer a recommendation to set up a do-not-e-mail list and give the FTC authority over such a list — or provide reasons that it would be impractical to do so,” O'Shea said.

The do-not-e-mail list would go into effect within six months of the Oct. 1 enactment of the FTC's national do-not-call file. This provision is thought by observers to be an accommodation to Sen. Charles Schumer (D-NY), who has introduced a measure that recommends a national do-not-spam list. Schumer publicized his legislation for weeks before finally introducing it — speaking before industry groups and putting out press releases regularly.

O'Shea said that the do-not-call provision “was an attempt to make the bill as strong as it can be.”

Another addition to CAN-Spam is the so-called McCain amendment. This says that if a business employs someone to market its products who uses spam to do so, then the company would be accountable under the law.

Sen. John McCain (R-AZ) is the chairman of the Senate committee that passed the bill.

Penalties have been increased from $10 to $25 per spam e-mail for “dictionary attacks,” the establishment of numerous e-mail accounts to make spam more difficult to track and block and the hijacking of other computers to send spam. The original bill called for damages of $10 per spam e-mail.

The penalty cap has been raised under the revised bill from $500,000 to $1 million.

Marketers are allowed to send unsolicited e-mail messages, according to the legislation, but must provide an obvious way for recipients to opt out. An opt-out method would not be required for solicited e-mail.

Plus, opt-out is for all uses of a recipient's name. When a recipient asks to be removed from a sender's mailing list, the sender may not share or sell that recipient's e-mail address to a third party.

The bill does not go so far as to require “ADV” in the subject line, indicating that the e-mail is a marketing message, but new language does say that the header must state clearly what the e-mail message is about. And a physical mail address — not just a return e-mail address — must be included in the e-mail.

Pre-emption rules are modified under the revised bill. “States can continue to impose and enforce strong laws against falsity and deception in spam, while still ensuring national standards for compliance with the law,” according to a statement from Sen. Burns' office.

The bill also calls for the FTC to recommend how to deal with spam from overseas senders.

• Creation of a national do-not-spam registry.
• Penalty cap raised from $500,000 to $1 million.
• Firms are liable for spamming done by vendors.