Can Spam Ever Be Stopped?

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 providercould 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.”

Define Spam

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.

11 Comments

  • Do bad that spammers don’t get it but they are like telephone solicitors there is no control over them by our government, makes you wonder why doesn’t it, gotta be some $$$$$ making the difference some how… But I have a simple philosophy with spammers as I do with the telephone solicitors, anytime one of them sends something to me, that automatically disqualifies them from EVER selling me anything anytime for my life time and now I AM 63 years old and have never went back on that philosophy, nor will I ever, they are merely a pain in the ass that you get rid of as soon as possible and with out any respect to them what so ever.

    Charles

    • “Madhurima” seems to think that false advertising (which is what most spam is) is a legitimate marketing tool.

      I submit that any company selling an honest product at a fair price would not need to spam to drum up business.

      If you want to advertise for free on the internet, take a look at the “biz” newsgroups. Unlike most newsgroups, they welcome all kinds of commercial ads. And unlike spam, they reach a willing audience.

      I recently received a piece of spam with the subject “Enlarge your penis”. The spammer had no way to know whether the recipient of that msg was an adult or a child. Would you like to see such a msg find its way into your little girl’s mailbox?

      • Sending spam is like sending out junk mail postage due. It has been estimated that up to 30% of your ISP’s costs go toward unclogging undeliverable spam from mail servers. Those costs are passed on to the customers. Equating this to “free speech” is nonsense. It’s fraud, pure and simple.

        • Can’t one just get an email program that prohibits all mail except from those that are explicitly entered by the owner of the mailbox? That way, if I were allowed to write to my mother, the DMA and all others who weren’t on her “acceptable” list would not be able to get through.

          • The First Amendment is not an absolute right for anyone to say or do anything. Commercial speech, such as advertising, enjoys a lower level of protection than the so-called “core speech” (political protests and the like). Advertising is regulated all the time! Ever hear of the Federal Trade Commission? Spam can and should be lawfully regulated so it does not turn into 100,000 e-mails a day.

          • Yes,I have heard about FTC. In fact, recently I needed their help. I don’t think they are

            open for business. They handled serious problems by sending me form letters that

            had nothing to do with my complaint. I don’t think FTC can handle spam either.

            Here is what FTC is good for – to go after people who make lots of money and fine

            them, so they can steal some of their money or put them out of business. Just to give

            you a few examples, Tony Robbins fined $200,000, Brad Richdale $1,000.000, case is

            still pending, Del Dado $200,000 for saying-ANYBODY CAN, Hooked on phonics, probably

            the best educational program in existence, $200,000 and put them out of business.

            And I could go on and on. I have been watching FTC for many years, it must be a

            sister organization to the IRS. That’s all the Internet needs, government control, taxation,

            FTC, IRS – bad enough that the FBI and NSA read your every email, listen to every phone call

            and monitor every fax.

          • Dear board,

            InternetWeek has recently come up with a survey of various companies on whether they employ spam (unsolicited commercial e-mailing) in their marketing efforts:

            “In fact, one in 25 of our survey’s respondents said their companies’ marketing efforts include the distribution of unsolicited e-mail.”

            Now, just imagine how many out of these 25 didn’t admit using SPAM, and how many more there are out there?

            Best regards,

            Alexander Bulgakov

            Quantum Art

            aleksandrbulgakov@artq.com

            http://www.artq.com

          • I think spam can be stopped. However I think it will take a concerted effort by all parties to do so.

            Ideas:

            1. TOS change: past x number of messages per month your account is receive only until you pay a deposit of $$$ for more (read expensive) bandwidth. Similar to the policies on beepers.

            2. Law change: any mailing past x pieces whether mailed together or seperately is by law spam. This would then fall under Federal rules with fines and jail for failure to register with BATF (which we make difficult and expensive and slow)

            3. Law change: Certain types of faked Id’s, spoofed packets, etc. are by law illegal on any computer hooked to the internet when associated with spam (hey! I’ve read the First Amendment, but a con game is not entitled to free speech)

            4. Law change: any spam as defined is taxed at a rate of $$$, private citizens allowed to file suits to recover, 10% to citizen (similar to whistleblower laws)

            5. International Treaty on Spam…. Need I say more?

            The idea is to get creative and make it expensive for spammers to do business.

  • Spam,junk mail,flyers in the paper,commercials have a lot to do with our first

    amendment.It will be difficult for the government to do anything about spam,because

    the whole world is involved.Our government cannot force foreigners to abide by our

    laws.I believe the spam problem is resolved.Anybody who doen’t want any spam,can

    put up a fire wall. A good example,how the laws missed the target.For all US citizens

    gambling in any casino on Internet is illegal.I guess they would have to lock up at

    least the half of the country,because all foreign casinos are doing very well.Lately,

    if you noticed,there is no longer problem with spam.You get so much spam,that even

    if you love it,you cannot read it all.I get 100 messages a day-I cannot read any.

    Nobody can read any email,the government got 80 millions of email first few months.

    I read that Hillary Clinton gets 8000 emails a day.So,spam in my opinion is no longer

    a problem.Nobody can read it all.I guess,it is time to charge for all emails in and out.

    That would partially resolve the problem.Or divide the internet,one half for spam,

    and the other half for no spam.Any legal action against spammers will eventually

    end up in the Supreme Court,and they will uphold freedom of speech.No doubts.

  • Instead of making complicated new laws, why doesn’t Congress simply update existing laws to cover modern technology?

    A large percentage of spam promotes outright fraud. If the same messages traveled via US Snail instead of email, the senders would soon face charges of mail fraud. Congress could simply update the definition of mail fraud to include email as well as snail mail.

    The law against junk faxes works well. Congress could simply extend the same law to cover unwanted email.

    But perhaps that’s too simple for elected legislators to understand. They seem to prefer making things complicated.

  • IMHO a spam mail is a tool of marketing. When we walk down the street we see tons of hoardings selling some product or the other. We did not ask for the hoardings to be put up there. The web is a medium of communication and the spam mail is the marketing tool available on it.An additional means of revenue, lucrative at that!

    It is only fair that the spammer be given at least a chance to show/offer you their products once.

    There are ways of controlling this too. Just like we selected an icon to show a reply to this posting, similarly spam mailers could be bound by law to give some indication that the mail they have sent is unsolicited. You will then have an option to see it or reject it!

    Cheers!

Leave a Comment

Please sign in to post or reply to a comment. New users create a free account.

Related Stories

E-Commerce Times Channels