• E-Smut
  • July 31, 2003
  • Law Firm: McGlinchey Stafford, PLLC - New Orleans Office
  • Internet abuse is rampant. So say many who cheer the U.S. Supreme Court's decision that First Amendment concerns are outweighed by the need for state-sponsored censorship on library visitors. Justice William Renquist, writing for a 6-3 majority, cited a library's traditional role in making judgments on what is suitable for its collection. "It is no less entitled to play that role when it collects material from the Internet," he said. By virtue of the Children's Internet Protection Act, passed by Congress in 2000, libraries are required to put filtering software on their computers, or forego U.S. funding for the Internet services. The court's brief notes that libraries received $59 million to help purchase Internet services during fiscal 2002, as well as $149 million in grants to help pay for electronic links with educational, social or information services. Currently, 95 percent of the nation's public libraries are connected.

    This action is part of the push for federal and state lawmakers to curtail uninvited and often offensive messages showing up in electronic mailboxes everywhere. Thirty-three states have enacted laws seeking to regulate unsolicited commercial e-mail in recent years. Utah's state law defines commercial e-mail as spam if the sender has no previous business relationship with the recipient and fails to signal that the e-mail is an advertisement in its subject line. One Utah lawyer has filed nearly 1,000 lawsuits against unsolicited commercial e-mail on behalf of hundreds of clients, and he says he plans to continue until spammers get the message.

    Even the creators of the vehicle are getting in on the fight. Microsoft Corporation has filed 15 lawsuits against alleged senders of unsolicited commercial e-mail in the U.S. and the United Kingdom. They are dedicating more and more resources to the "global effort to fight spam," according to their general counsel; the company wants to address some of the most "misleading, deceptive and offensive e-mails" received by its customers. Microsoft is not alone in the quest -- in April, AOL's America Online unit, Microsoft and Yahoo Inc. announced they would band together to jointly fight spammers through new technologies, coordinated policies and other means.

    The substantial growth rate of spam has not only created a nuisance to Internet users, but is threatening to swamp some computer systems. As a percentage of Internet e-mail, the volume of spam has more than doubled in the past year. As of May 31, about 48 percent of all Internet e-mail was spam, according to a company which provides spam-blocking software. AOL's America Online service, which is the largest of its kind in America, says that spam accounts for as much as 80 percent of the incoming e-mail to its systems. A market study by Ferris Research shows the cost to businesses is as much as $8.9 billion a year. It is also cited as the number one complaint of most Internet users.

    But a little closer to the heart of the matter for employers is that failing to address the issues of employees receiving pornographic spam at work leaves them open to liability for a hostile work environment lawsuit. Workers can be made uncomfortable by the deluge of electronic offers for various devices and drugs, as well as pornographic images that appear when a message is opened.

    It can become a serious issue if employees complain about receiving pornographic spam at work. The company needs to take steps to limit the flow of the offending messages, unless it poses undue hardship (such as revamping an entire IT system), in which case the employer is still obligated to help employees eliminate the spam, possibly by limited employee use of e-mail. Experts on sexual harassment law recommend that employers be cautious, and proceed as if porn does create a hostile work environment. The EEOC has said, and the courts agree, that a company is responsible for any conduct over which it has control, and that includes e-mail.