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(FindLaw) -- Both the House and the Senate have now approved anti-spam legislation. ('Spam,' of course, is unsolicited e-mail.) First, the House approved an anti-spam bill, 392-5. Then, the Senate unanimously approved a version of that bill with minor technical changes, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, which is also referred to as the CAN Spam Act. In early December, due to these changes, the House will have to vote once again on the CAN Spam Act, but it seems a foregone conclusion that it will pass. Moreover, it appears very likely that President Bush will sign the bill into law. In theory, that's a good thing: Congress's findings noted that '[u]nsolicited commercial electronic mail is currently estimated to account for over half of all electronic mail traffic, up from an estimated 7 percent in 2001, and the volume continues to rise.'

At this point, there's little question that spam is a big, and growing, problem. Indeed, some reports estimates that industry loses up to $10 billion a year in terms of lost productivity and investment in software and other resources to filter spam. And the Pew Internet & American Life Project recently reported that 70 percent of e-mail users say spam has made their online experience unpleasant or annoying. Unfortunately, in practice, the new anti-spam law -- while well-intentioned -- may be ineffective. The sad news is that the new legislation is unlikely to achieve its goal of eliminating the bulk of the spam we receive. The specifics as to what the anti-spam legislation will prohibit To begin, the new law will not prohibit all spam.

Instead, it will require that spam be truthful, and it will provide the government with enforcement mechanisms to go after fraudulent or deceptive spammers. They would face fines of $250 for each e-mail pitch -- fines that could total up to $6 million for the most serious offenders. It would also forbid senders of commercial e-mail from disguising themselves by using incorrect return e-mail addresses or misleading subject lines, and sets criminal penalties for those who do. (E-mail containing pornography would also have to be specially labeled in the subject line.) In addition, it would prohibit 'harvesting' e-mail addresses. ('Harvesting' is the practice whereby spammers grab email addresses from Internet chat rooms, blogs and other sources without the permission of the Web site or its members/users.) Who would enforce these provisions? The federal law does not allow individual e-mail users to sue spammers.

Instead, the Federal Trade Commission (FTC), other federal agencies, Internet Service Providers, and state attorneys general can sue on behalf of Internet users. In theory, these provisions should have a big impact. An FTC study conducted earlier this year found that two-thirds of spam contains a false claim. At most, according to the FTC, only 16.5 percent of spam is from legitimate advertisers peddling legal products. What about that final 16.5 percent, though?

Under the new law, consumers can choose to 'opt out' of receiving it. Spammers will be required to provide an 'opt out' mechanism within the email itself. And ultimately, the FTC may be asked to establish a 'Do Not Spam Registry' similar to the recently created federal 'Do Not Call Registry.' (If passed, the current bill would require the FTC to come back to Congress within six months with recommendations on how to set up such a registry.) In theory, registering with a Do Not Spam Registry ought to mean that one will never be spammed again. By adding one's email address to a central directory, a consumer would theoretically notify all potential email marketers that he wished to receive no unsolicited commercial email.

In reality, however, that almost certainly won't be the case -- for several reasons. Why the anti-spam legislation may well be ineffective Why won't the spam law work? First, much of the illegal or deceptive spam that we receive in the United States comes from overseas. (For example, many of us have received letters from purported relatives of Nigerian dictators -- part of a wave of fraudulent spam that is initiated from overseas.) It will be difficult to find international spammers and to bring them to justice – even when we do know who they are, which is rare. Last week, the Nigerian government announced last week that it has set up a presidential panel to tackle economic crimes committed via the Internet, which is a step in the right direction. International measures will be necessary to truly eradicate fraudulent spam. Second, even U.S.-based spammers will similarly be able to move their operations offshore and continue to operate from there.