In case Thanksgiving distracted you from the happenings in the tech industry last week, you should know that in an eleventh hour blast of congressional activity, the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN SPAM) antispam bill took several monumental steps towards becoming a federal law.

All that remains is the approval by the House of a Senate-modified version and then the signature of President Bush. Officials from both camps have indicated that there's no stopping the CAN SPAM bill now. In my estimation, the passage of this bill is a travesty.

Giving the rising tide of spam and its impact on all Internet users, it's been painfully clear that technological and legal measures are needed to address the growing spam problem. I'm not a big fan of legislation when it comes to spam, but I've also come to accept that legislation against spam is unavoidable. So, instead of staking out the "stop spam legislation position," my new take is just to stop bad legislation.

To be fair, some of the CAN SPAM bill's language makes important headway when it comes to designing a federal antispam law that supercedes state law (a requirement if we're to have laws at all). For example, CAN SPAM does a good job of defining and illegalizing the kinds of deceptive techniques (many of which were already illegal) like trespassing, forgery and theft or falsification of identity that spammers commonly use to cover their tracks. Despite the many great strides that the CAN SPAM bill makes, I fear that most of the good in the bill will be undone by its shortcomings. In fact, the CAN SPAM bill could easily become the poster child of legislative efforts doomed to fail.

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For the umpteenth time: Antispam laws are a bad idea as long as they're written by those out of touch with technology and more specifically, with the underpinnings of Internet e-mail. For example, writing into law anything that ventures down the path of "opting out" (short-hand for "optioning out," deselecting, or unsubscribing yourself from membership in a mailing list)--which CAN SPAM does--creates a virtually unenforceable law since there are a million and two reasons (most of which would not be due to negligence on behalf of mailing list operators) why an opt-out mechanism may not work at some given point in time.

For example, before opt-out language can be included in a law, an opt-out standard--what I call a relationship termination protocol that dissimilar e-mail clients and servers can interoperate with--must exist.

Perhaps you think I'm on the lunatic fringe? An ultraconservative who refuses to see the good in legislation that clearly has the welfare of the spam-afflicted in mind? Then you should heed the following warning, reported in a recent CNET News.com story about the CAN SPAM bill, sent from the National Association of Attorneys General to Congress: "The bill creates so many loopholes, exceptions, and high standards of proof, that it provides minimal consumer protections and creates too many burdens for effective enforcement...We respectfully request that you not move forward."

Lack of enforceability has been my main point all along, and it's refreshing to see the very group of people chartered with upholding the CAN SPAM bill saying to Congress "Hey, you're all off your rockers if you move forward with this law."

Still not convinced? Assuming that the law's effectiveness is dependent on the fact that all evil spammers fall within its jurisdiction (a very bad assumption considering the mounting tide of spam from China and South Korea), then you as a concerned Netizen should consider the bill's definition of spam.

To the relief of e-mail marketers everywhere, spam will not be the first unsolicited commercial e-mail you get from someone you consider to be a spammer. It's one of the subsequent ones. That's right, it's only after receiving the first e-mail and then issuing an objection according to a method the sender specifies (the vaulted "opt-out" for which no standard method exists and no auditable test for proven functionality has been created).

It's no wonder Attorneys General everywhere are furrowing their eyebrows over the CAN SPAM bill.

Despite the fact that the Attorneys General will be reluctant to expend the resources necessary to prosecute given the loopholes they envision, the originators of the bill, Senators Conrad Burns (R-Mont.) and Ron Wyden (D-Ore.), cited the financial implications in their declarations of victory. Sen. Wyden said that "when this bill takes effect, the big-time spammers who up until now have faced virtually no penalties will suddenly be at risk of criminal prosecution, (Federal Trade Commission) prosecution and million-dollar lawsuits." Sen. Burns said: "In cases where e-mail marketers don't comply with the CAN-SPAM bill, the penalties are very severe...Spammers are actually on the hook for (per e-mail) damages, with a cap of $2 million."

Newsflash. The big time spammers--at least those who are intentionally sidestepping all sense of Internet decorum in order to invade the sanctity of your inbox-collectively have about $100 in their checking accounts. It was only about six months ago, at the now infamous Federal Trade Commission three-day workshop on spam, that we heard from several Attorneys General and Internet Service Providers about how their investments in certain investigations, indictments, prosecutions, and lawsuits were disproportionate to the final outcome--one or two bad apples (out of an ocean-sized apple orchard) with little or no money to their names shut down. My inbox didn't notice. Despite efforts to publicly draw, quarter, flog, and hang the offenders, the rest of the orchard didn't appear to flinch. They're a secretive bunch, and it's not like they have offices on Madison Avenue.

Well, maybe they do. According to the aforementioned report by CNET News.com, "The Direct Marketing Association [DMA], which once opposed antispam laws and reversed its position a year ago, called CAN-SPAM a 'positive development.' DMA public affairs director Louis Mastria said it is 'imperative that we have a national standard for e-mail marketing, because it's at the very least a national marketplace." It's no wonder the DMA likes the CAN SPAM bill. It gives marketers unbridled rights to invade our inboxes at least once. But in reality, it will be a barrage because, if you're like me, you're too busy to work through the opt-out process (even if it works) for every unsolicited commercial e-mail. For lazy people, deleting is far easier. It's like cash rebates-- statistically, many of those entitled to rebates never cash-in because its too much hassle.

More importantly, I don't think of my inbox as a part of any marketplace. I'm pretty certain my employer, which spends a lot of money to manage the systems that make my inbox (as well as 24/7 access to it) possible, never intended it that way either

But hey, who am I or my e-mail administrator to talk about what my inbox is for? Congress apparently knows better.

You can write to me at david.berlind@cnet.com. If you're looking for my commentaries on other IT topics, check the archives.