Can Spam Ever Be Stopped?
Activists decry a loophole in proposed U.S. anti-spam laws that would allow each spammer to send one unsolicited e-mail before an ISP could take action against the spammer.
05/14/01 5:24 PM PT
Few things are more annoying than opening your inbox and finding dozens of solicitations for credit cards, weight loss products and other goods and services.
Unfortunately, no national law exists outlawing or regulating spam. Instead, spam is regulated by "a patchwork of state laws of varying degrees of effectiveness," according to Allen Hile, assistant director of the division of marketing practices for the U.S. Federal Trade Commission (FTC).
Hile told the E-Commerce Times, "It's difficult for people operating on the Net to follow 50 sets of rules."
The good news is that bills are currently pending in both the U.S. House of Representatives and the U.S. Senate that would require companies that send unsolicited, commercial e-mail solicitations to label their spam as such. In addition, the proposed laws would require spammers to provide a valid return e-mail address and a way for consumers to "opt-out" of receiving future mailings.
The proposed laws also would allow the FTC to levy fines against spammers who violate the law and would allow state attorneys general to take legal action against spammers on behalf of citizens.
Although it appears that progress is being made in the quest for federal anti-spam legislation, as recently as last week several U.S. lawmakers said they were reconsidering their support of the bill sponsored by Heather Wilson (R-New Mexico) because it supposedly will limit the sending of legitimate business correspondence via e-mail.
State Hands Tied
The spam laws on the books in various U.S. states are "pretty ineffective," John Mozena, co-founder and vice president of the Coalition Against Unsolicited Commercial E-Mail (CAUCE), told the E-Commerce Times.
The reason why state laws are so limited is that they have to walk a fine line to avoid violating the interstate commerce clause of the U.S. Constitution, which bars the states from enacting laws that unduly burden business conducted across state lines.
For example, last year, a Washington State Superior Court threw out a spamming case filed by the Washington state attorney general's office against an Oregon man. The state prosecutors had accused Jason Heckel of spamming Washington residents. In the ruling, King County Superior Court Judge Palmer Robinson held that the state's tough anti-spamming law was "unduly restrictive and burdensome" of interstate commerce because it would require Heckel to determine the state in which each e-mail recipient resides.
According to Elaine Rose, senior assistant attorney general for government relations in Washington state, the state has filed an appeal and the appellate court's opinion is expected sometime this summer.
Here Come the Feds
Although state laws have not proven effective against spammers, a sweeping federal law could stop spam, according to experts, because it would allow federal prosecution of spammers and would create a single set of rules. Even if few spammers are actually prosecuted under a federal anti-spamming law, many believe that simply having the law in place would serve as a deterrent.
Jason Catlett, president and chief executive officer of Junkbusters.com, compared the proposed U.S. anti-spam laws to a federal junk-fax law already on the books. The junk-fax law prohibits the sending of unsolicited faxes and authorizes US$500 penalties for each unsolicited fax sent across state lines.
Mozena said most fax spammers "stopped pretty quickly" after the junk-fax law was passed. The activist also said that spammers -- whom he called the "bottom feeders of the marketing world" -- will only stop sending spam when they have "a hammer over their head."
Effective federal spam legislation, according to Mozena, will send a lot of spammers "looking for a new job right quick."
License to Spam
Unfortunately, the proposed U.S. legislation is not strong enough, according to Mozena and Catlett. Both point to loopholes in the bills that would allow each spammer to send one unsolicited e-mail before an Internet service provider could take action against the spammer.
"A opt-out policy that allows each spammer one free spam is like permitting shoplifters to steal items until each store requests that they cease thieving. It imposes unfair burdens: In both cases, even people who are not directly victimized incur costs through higher prices," Catlett said in written testimony provided to a U.S. Senate subcommittee last month.
Even the FTC's Hile acknowledged that the pending bills would allow spammers to "take one bite at the apple." However, he said the FTC supports the pending legislation because it is "the best thing we've seen so far."
The Direct Marketing Association (DMA) -- which favors both of the proposed U.S. anti-spamming laws -- says it generally supports measures to crack down on spam e-mails that either provide false information or fail to give consumers a valid way to opt-out of future mailings.
"However, if you send mail to consumers that provides a real opt-out, that's something very different (than spam)," Christina Duffney, the DMA's director of media relations, told the E-Commerce Times. "Legitimate marketers providing a service are falling into the pigeonhole of spam."
Duffney pointed out that the DMA does provide consumers with an easy way to opt-out of receiving mailings from all of DMA's approximately 5,000 members through its e-Mail Preference Service (e-MPS).
No Beeline to Court
Another fatal flaw in the proposed anti-spamming laws, according to many observers, is that they do not allow consumers to sue spammers directly. Instead, if the laws are passed, consumers who have complaints against a spammer will have to rely on government agencies or ISPs to take legal action.
Moreover, Rose said, most law enforcement agencies do not have the resources to handle what could be an avalanche of spam cases.
According to Mozena, law enforcement agencies have "no time to deal with spam" because they are too busy looking for tech-savvy people who can deal with "serious issues like pornography and cyberstalking."
However, Mozena said, many consumers who have received spam would be "more than happy to go after [spammers]" if they had the right to bring a private lawsuit.