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By Dr. Philip Baczewski, Associate Director of Academic Computing

Is Spam Illegal?

Spam is unsolicited e-mail that is sent out en masse to people who have in no way requested such mail to be sent. Because the content of spam e-mail often offers get-rich-quick schemes or pornographic Web sites, it is easy to assume that the activity of sending a spam must be illegal. The truth is that in most cases, it is not illegal. As objectionable as many spam messages are, fighting spammers is not just a matter of picking up the phone and calling the FBI. In reality, the law surrounding issues of spamming is currently quite complex and involves issues ranging from free speech to electronic communication. This columnist is definitely not a lawyer and doesn’t even claim to play one on TV. This article, however, will provide some references where you can read more about the legal issues surrounding e-mail spam and the measures being considered to try to control a growing annoyance and a possible threat to Internet access and stability.

Spam, Free Speech, and Current Laws

An article by Michael W. Carroll from the Berkeley Technology Law Journal (http://www.law.berkeley.edu/btlj/articles/11-2/carroll.html ) goes into great detail about the legal issues surrounding spam e-mail and possible existing or proposed laws to prevent it (the article was partially reprinted as The Network Connection in Benchmarks, Volume 18, Number 2) . He illustrates that it is constitutionally difficult, if not impossible, for the government to regulate the content of e-mail messages. As recent news indicates, however, it is possible to recover damages for misuse of commercial or private Internet networks (see http://cnn.com/TECH/computing/9803/29/junk.e.mail.ap/index.html). Internet service providers (ISPs) brought two successful civil cases against a company whose business activity was sending spam e-mail. You and I, however, usually don’t have a flock of corporate lawyers at our disposal, so we must await further legislation or litigation before we see any lessening of spam messages arriving in our mailboxes.

Washington State: Send a Spam, Go to Jail?

Washington State recently became the first government in the United States to pass a bill that, under certain conditions, makes it illegal to send spam e-mail. The bill (http://leginfo.leg.wa.gov/pub/billinfo/house/2750-2774/2752-s_e_021698) states:

Sec. 3. (1) No person, corporation, partnership, or association may initiate the transmission of a commercial electronic mail message from a computer located in Washington or to an electronic mail address that the sender knows, or has reason to know, is held by a Washington resident that:

(a) Uses a third party's internet domain name without permission of the third party, or otherwise misrepresents any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or

(b) Contains false or misleading information in the subject line.

The conditions include that the spam must come from a computer in Washington State and be sent to the e-mail address of a Washington State resident. According to a story on CNN Interactive (http://cnn.com/TECH/computing/9803/27/wash_spam/index.html), "Individuals who receive junk e-mail can collect up to $500 per violation. Internet service providers can collect up to $1,000 in damages if spam mail slows down access to customers."

While this bill is far from slamming the jail door on all spammers, it does hit at two activities that spammers are notorious for doing: hiding their identity by making the mail seem like it came from a known or unknown Internet site not their own, and luring you into reading by using an exaggerated or unrelated subject line. The penalties under this law, however, are civil and not criminal. Instead of calling the police when you get a spam, under the Washington State law, you have to call a lawyer and sue the offending party.

Pending Federal Legislation

A number of U.S. Federal laws have been filed in Congress. None of these have yet passed in either house, however. Congressman Smith of New Jersey has proposed legislation that is looked upon most favorably by some anti-spam organizations. His bill modifies existing statutes to include e-mail among other media where unsolicited communication is already banned. The penalties in this case would be civil rather than criminal, but the existing statute has had the effect of discouraging junk FAX transmissions and telemarketing calls to Cellular phones.

A complete list of the pending legislation follows:

Legislation filed by Congressman Smith:

ftp://ftp.loc.gov/pub/thomas/c105/h1748.ih.txt

Legislation filed by Congressman Tauzin:

ftp://ftp.loc.gov/pub/thomas/c105/h2368.ih.txt

Legislation filed by Senator Murkowski:

ftp://ftp.loc.gov/pub/thomas/c105/s771.is.txt

Legislation filed by Senator Torricelli:

ftp://ftp.loc.gov/pub/thomas/c105/s875.is.txt

Towards a Solution

It’s clear that spam won’t go away soon and that it is currently far from being illegal. Just because it is not legal, however, does not mean that it is not unethical, unwanted, costly, or annoying. If you are interested in learning more about spam e-mail and ways to prevent its transmission, the following web sites might be of interest:

Fight Spam on the Internet!: http://spam.abuse.net/

and

The Coalition Against Unsolicited Commercial Email: http://www.cauce.org/

Spam probably won’t just go away on its own. A big discouragement to spam, however, would be requiring spammers to identify themselves in the process, shifting the current burden of public blame that falls against Internet service providers. If the Washington State law were adopted nationally, spammers would either have to identify themselves and face the backlash of their activity, or instead face large-scale penalties should their identity be discovered. No solution is perfect, but one which discourages current anonymous spams and still preserves freedom of speech would surely be welcome in the Internet community.