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Anti-marketing critics have mindlessly derided the Can Spam Act of 2003 since before it was even passed as the “You Can Spam Act.” Now it looks as if Congress may be listening.

Earlier this year the House Committee on Energy and Commerce sent a letter to Federal Trade Commission chair Deborah Platt Majoras expressing concern over reports of the rising volume of spam e-mail.

“As you know, Congress passed legislation in 2003 — the Controlling the Assault of Non-Solicited Pornography and Marketing Act — to put a lid on this problem,” the letter stated.

“What we have learned recently raises concerns that Can Spam has not really helped to solve the underlying problem,” it continued. “We are considering holding hearings to look into the impact of the statute, including its implementation and enforcement, and the need, if any, for changes to the law.”

It's difficult to envision a scenario where this development pans out well for marketers. As it stands, Can Spam is one of those rare laws Congress got mostly right.

For one thing, anti-marketing zealots direly predicted Can Spam would result in a tsunami of unsolicited commercial e-mail from legitimate marketers who would consider the law a green light to send whatever they want. The prediction has proven to be embarrassingly wrong — that is, if anti-spam zealots had any capacity for embarrassment.

Let's think back to 2002. When anti-spammers were lobbying to make Can Spam an opt-in-based piece of legislation, they had a cute little formula they'd routinely trot out: If someone got one message a month from just 1% of the 22.4 million businesses in America, the average inbox would receive 7,359 commercial e-mails per day.

What a bunch of alarmist drivel. These people weren't just wrong as in “Maybe we exaggerated the threat a wee bit to advance our agenda,” they were wrong as in “We were so spectacularly off target, the only thing we should ever be trusted to do from here on is pack Happy Meals.”

But make no mistake, these Chicken Littles have no shame when it comes to their anti-commercial agenda, and will again come out in force the moment Congress begins another round of hearings.

Someone representing marketing needs to be there to make sure the committee understands the following: When the Can Spam Act passed in 2003, it superseded a stifling maze of state legislation that threatened to eradicate commercial e-mail. The law allows companies to make good-faith mistakes while giving law enforcement officials and Internet service providers the tools to prosecute the criminals who are truly responsible for most unwanted e-mail.

There is not a single e-mail-related law anywhere in the world that has been used even close to as often or as effectively as the U.S. Can Spam Act. By the committee's own reckoning, Can Spam has been used by the FTC, the Department of Justice, state attorneys general and Internet service providers to bring more than 90 prosecutions.

If the act is to be changed at all, it should be made even clearer that it was designed to replace ill-conceived state laws. For example, the disastrous, ironically named child-protection do-not-e-mail registries in effect in Utah and Michigan are the result of two laws a more tightly written Can Spam may have prevented.

Can Spam supplants all state anti-spam laws except those that combat fraud and those that aren't specific to e-mail. Utah and Michigan used the “not specific to e-mail” exception to pass their cockamamie registry laws, claiming that since registrants could include cell phone numbers and other “contact points,” Can Spam didn't apply.

So could Can Spam be improved? Sure — but not the way anti-spammers would have lawmakers believe. As a result, the best we can hope for is that it simply will be left alone.

Magilla Marketing, Ken Magill's weekly e-mail newsletter, is archived at http://directmag.com/magill/.