Block or Tackle

Posted: 9/2003

Block or Tackle
Congress Weighs Anti-Spam Bills
By Josh Long

Congress has introduced several bills to combat the deluge of spam streaming across U.S. networks. The action could help Internet service providers prevent unwanted messages from reaching their customers. Some spam experts are reticent to predict which bills (see list below) have a chance of being signed into law, but they say a federal spam law is more likely to be passed this year than in previous congressional sessions.

The spam issue seems to have more momentum now than in previous years, so it wouldnt surprise me to see Congress enact one of these bills this year, says David Sorkin, associate professor of law, The John Marshall Law School. I dont think any of the current pending federal bills is likely to do much good, with the possible exception of those that include a no-spam registry.

The professor says a no-spam registry  similar to a do-notcall list  only would be effective if it allowed an ISP to include entire domains at no cost to the domain owner, rather than individual email addresses. If that were the rule ISPs would finally have strong legal grounds for declaring themselves spam-free, says the professor, who maintains a Web site (www.spamlaws.com) on state spam laws and federal legislation. AOL, for example, could list aol.com in the registry, entitling it to sue any spammer who sent spam to AOL subscribers. However, Sorkin says the federal bills that include a no-spam registry are short on details.

Other provisions in the bills, such as individual opt-out provisions giving people the right to prohibit the spammer from sending future unsolicited messages through a notification, are likely to legitimize spam, making the problem worse than it is now, the professor says.

The spam situation clearly is getting worse. In April AOL announced it blocked a record 2.37 billion spam e-mails in one day, stopping about 67 spam emails per account, per day from landing in member mailboxes. AOL also reported that up to 9 million individual spam complaints were reaching the Internet giant daily mostly through its Report Spam button in AOL 8.0.

If each of these 2.37 billion spam e-mails that AOL blocked had arrived in standard envelopes and they were laid end-to-end, they would circle the globe four times and reach the moon, said an AOL executive in a statement, ... which frankly is exactly where our members would like us to send the spammers.

Craig Silliman, director with the technology and network legal team of MCI, says it is crucial any spam law does not preempt an ISPs acceptable-use policies or terms of service, which often prohibit spam and give the Internet provider the right to terminate service and immediately block junk mail once it is detected.

Any spam legislation should be a supplement and an additional tool to fight spam, not a replacement of something, the lawyer says. There is daily activity in the spam fight between ISPs and spammers.

Twenty-six states have passed their own spam laws, but there is no uniform law. Some states have had trouble enforcing the laws, Silliman says, because the spam may cross state boundaries. It will help enforcement actions to have federal legislation that can be enforced at the federal level, he says.

Kraig Baker, an attorney with Davis Wright & Tremaine LLP, says one major problem with spam is that a mountain of it is distributed from overseas. You can block a spammer sending mail out of a basement in Russia or Africa, he says, but how do you enforce the laws?

Baker predicts there will be a federal law within the next year regulating spam. The federal law will reflect what most of the states are doing, he says. Other states ... will bring their own regulations into compliance.

Virginia was the first state to pass a law that could put spammers into the slammer, the lawyer says. Under the Virginia Computer Crimes Act, convicted spammers could face one to five years in prison. In April, Virginia Governor Marc R. Warner signed the bill into law at the Dulles, Va., headquarters of AOL. According to the governors office, prosecutors will be able to hold liable spammers in other states and jurisdictions. Before this law, the governor said, legal action was almost not worth the trouble for prosecutors, which is no message to send to our Internet industry in its fight against the spam invasion.

Julian Haight, creator of reporting and blocking service, SpamCop, says detecting spammers is not the major problem: it is eradicating all of them. Haight says its not likely the threat of jail will serve as a major deterrent. I think laws that require security from software vendors [including Microsoft Corp.] and ISPs in some way might help by making the environment less hospitable to spammers.