• SPAM WARS: Reports From The Front Lines
  • May 7, 2003 | Author: Theodore F. Claypoole
  • Law Firm: Womble Carlyle Sandridge & Rice - Charlotte Office
  • As unsolicited commercial email overwhelms Internet systems, and as national legislation that could help restrict it continues to bog down in the United States Congress, other jurisdictions and private companies lead opposition to cluttered electronic mailboxes.

    In a recent article on the prevalence of unsolicited commercial email, also known as spam, the New York Times reported that more than 70 percent of the email messages received by AOL are spam -- nearly reaching two billion spam messages a day. The Times quoted spam-filtering software maker Brightware noting a 200% increase in spam since January of 2002.

    The United States Congress has repeatedly considered legislation aimed at limiting some deceptive email practices. For example, current legislation in the Senate would require commercial email to identify the real sender and to have an accurate subject line, and would include penalties for non-compliance. It is thought that requiring honesty in commercial email would drastically reduce the volume of spam as recipients sending responses to unwanted mail would overwhelm the email system or service providers for those sending the messages. The current Senate legislation also includes a requirement for commercial email senders to create and respect an easy method for consumers to remove their names from emailing lists.

    Many U.S. states have enacted antispam legislation, but it remains difficult to enforce because such laws frequently only apply to email sent from the state or via a providers' equipment located in the state. For example, the Colorado Junk Email Law, enacted in June 2000, prohibits the sending of unsolicited commercial e-mail that contains false or missing routing information. Under the Colorado state unsolicited commercial e-mail messages must contain the term "ADV:" at the beginning of the email subject line, and must include the sender's e-mail address and effective opt-out instructions. North Carolina and Virginia have spam laws that contain some of these provisions.

    Cases under these laws exist, but are rare, both because of jurisdictional issues and the small amounts of prospective damages. In March, a Kansas small claims court awarded a plaintiff $500 against an Illinois-based marketing company for violating the Kansas Commercial Electronic Mail Act by failing to label its unsolicited message with "ADV:" and failing to provide an address or toll-free telephone number for recipients to opt out of future mailings.

    Prior to passage of these laws, some Internet service providers used common law to try to limit spam entering their systems. CompuServe was successful in a 1997 federal court case in claiming that a commercial email company trespassed onto its systems and caused damage in doing so. However, such cases by consumers, even if successful, would be unlikely to support legal fees based on the small amount of financial damages that a consumer would probably be able to prove.

    America Online recently filed five lawsuits against alleged spammers in federal court in Virginia. AOL claimed that the defendants trespassed on AOL systems and also violated the federal Computer Fraud and Abuse Act, the Virginia computer crime statute, using "fraudulent and deceptive methods to evade AOL's mail filters and to hide their true identities and thereby make it more difficult to discover who is responsible."

    Clearly, the United States is not the only jurisdiction facing concerns about the explosion of unsolicited email. In the United Kingdom, on March 4, 2003, the Advertising Standards Authority, which administers the rules concerning UK advertising and marketing practices, released a new code concerning email and text messaging advertisements. This code update requires explicit consent of an intended recipient before sending spam, and requires that spam be clearly marked. The effect of expanding international limitations on American marketing companies is still unknown.

    The legal complexities have spawned private frustration and even vigilante groups. Today's New York Times includes an article about a group called the Spam Prevention Early Warning System that runs a website called Spews.org. The website collects information on companies that it claims are spammers. The group was able to influence a web hosting company to disconnect the sites of alleged spamming firms.