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November 2002

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Spam Wars: When Free Speech is Too Expensive


by Glen Emerson Morris

It's been estimated that approximately 38% of the 31 billion e-mails sent daily on the Internet in 2002 is junk e-mail, otherwise known as spam. In 2001, only 8% of all e-mail was estimated to be spam. Spam is turning out to be more than just an annoyance. At the rate spam is increasing, it's only a matter of time before the sheer volume of it crashes the Internet.

As a result of growing pressure from consumers, several anti-spam bills were introduced in the 107th congress, though none passed due to industry oppostion. The primary bills, the Unsolicited Commercial Electronic Mail Act of 2001 (H.R. 95) and the Netizens Protection Act (NPA) of 2001 (H.R. 3146), didn't try to prohibit spam, they just limited deceptive practices and required a valid contact address to be included to allow people to opt out. (For the complete text of the bills visit www.spamlaws.com.)

Section 2 of the NPA was typical of the pending bills. "In General - No person may initiate, or cause to be initiated, the transmission of an unsolicited electronic mail message in or affecting interstate or foreign commerce if the message-- (1) does not contain the name, physical address, and electronic mail address of the person who initiates the transmission of the message; (2) does not provide an electronic method by which the recipient of the message can contact the person who initiated the transmission of the message to request that no further such messages be sent, which method may include electronic mail or Internet access; or (3)(A) is part of a bulk transmission of such messages; and (B) includes information that is located in the subject line of the message and is false or misleading with respect to the body of the message.

So far, state laws similar to this have held up under appeal. A similar law was upheld in Washington state by the state's Supreme Court in State v. Heckel, 143 Wash. 2d 824, 24 P.3d 404 (2001).

"As early as February 1996, defendant Jason Heckel, an Oregon resident doing business as Natural Instincts, began sending unsolicited commercial e-mail (UCE), or 'spam,' over the Internet. In 1997, Heckel developed a 46-page on-line booklet entitled 'How to Profit from the Internet.' The booklet described how to set up an on-line promotional business, acquire free e-mail accounts, and obtain software for sending bulk e-mail. From June 1998, Heckel marketed the booklet by sending between 100,000 and 1,000,000 UCE messages per week. Charging $39.95 for the booklet, Heckel made 30 to 50 sales per month."

"On October 22, 1998, the State filed suit against Heckel, stating three causes of action. First, the State alleged that Heckel had violated RCW (Revised Code of Washington) 19.190.020(1)(b) and, in turn, the CPA (Consumer Protection Act), by using false or misleading information in the subject line of his UCE messages. Heckel used one of two subject lines to introduce his solicitations: 'Did I get the right e-mail address?' and 'For your review--HANDS OFF!' In the State's view, the first subject line falsely suggested that an acquaintance of the recipient was trying to make contact, while the second subject line invited the misperception that the message contained classified information for the particular recipient's review."

Secondly, the State alleged that Heckel had violated RCW 19.190.020(1)(a), and thus the CPA, by misrepresenting information defining the transmission paths of his UCE messages. Thirdly, Heckel was charged with violating the CPA by failing to provide a valid return e-mail address to which bulk-mail recipients could respond.

Heckel won at the lower court level on the grounds that the Washington law violated Federal interstate commerce laws, but the state appealed the decision to the Washington State Supreme Court. There, Heckel lost on all three issues. At the core of the Washington Supreme Court's decision was the principle of cost shifting, a concept that has been upheld in Federal courts in several cases.

The court ruled, "To handle the increased e-mail traffic attributable to deceptive spam, ISPs must invest in more computer equipment. Operational costs likewise increase as ISPs hire more customer service representatives to field spam complaints and more system administrators to detect accounts being used to send spam."

"Along with ISPs, the owners of impermissibly used domain names and e-mail addresses suffer economic harm. For example, the registered owner of 'localhost.com' alleged that his computer system was shut down for three days by 7,000 responses to a bulk-mail message in which the spammer had forged the e-mail address 'nobody@localhost.com' into his spam's header."

"Deceptive spam harms individual Internet users as well. When a spammer distorts the point of origin or transmission path of the message, e-mail recipients cannot promptly and effectively respond to the message (and thereby opt out of future mailings); their efforts to respond take time, cause frustration, and compound the problems that ISPs face in delivering and storing the bulk messages. And the use of false or misleading subject lines further hampers an individual's ability to use computer time most efficiently. When spammers use subject lines 'such as 'Hi There!,' 'Information Request,' and 'Your Business Records,'' it becomes 'virtually impossible' to distinguish spam from legitimate personal or business messages."

Some state laws have gone even farther. The requirement for "ADV:" is becoming a favorite anti-spam tactic because it allows for easy filtering of junk e-mail. From a legal standpoint it doesn't restrict speech, it just requires proper and truthful labeling.

Colorado's anti-spam law (House Bill 1309) requires the subject line of each spam to begin with "ADV:" unless the sender "(a) Is an organization using electronic mail to communicate exclusively with its members; or (b) Is an organization using electronic mail to communicate exclusively with its employees or contractors, or both; or (c) Has a current or prior business relationship with the recipient, as defined in section 6-2.5-102(1)."

Another tactic of state laws has been to make it illegal to violate spam rules set by Internet service providers. In CompuServe v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997) courts upheld the right of an online computer service to prevent a commercial enterprise from sending unsolicited electronic mail advertising to its subscribers.

While the business community initially opposed anti-spam laws, many businesses are changing their position as the true cost of spam becomes evident. It's really not a free speech issue, as initially perceived. It's an anti-deceptive practices issue, and businesses have as much to lose as consumers if protective laws aren't passed.

Copyright 1994 - 2010 by Glen Emerson Morris All Rights Reserved

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