State Laws Fail to Suppress Spam

Mortgage refinancing. Computer virus protection. Free passes to XXX sites. More and more often, “you’ve got mail” means you’ve got spam, and state leaders are trying to help Internet users control what ends up in in-boxes.

Technology experts agree that the amount of unsolicited commercial e-mail has skyrocketed recently but say state laws don’t thwart the problem. Lack of enforcement, confusion about jurisdiction and pricey legal fees complicate trials against spammers, legal experts say. Meanwhile, controlling spam will cost U.S. businesses more than $10 billion in 2003, according to a report by Ferris Research Inc., a San Francisco-based company that analyzes computer technology.

“We’re going to see a lot more spam, instead of less,” said David Sorkin, who teaches a spam law course at the John Marshall Law School in Chicago. “What most of the state statutes do is legitimize spam as long as you don’t also commit fraud.”

Thirty-five states have laws to regulate spam, according to Spam Laws, a Web site maintained by Sorkin. Legislation is probably strongest in Delaware, the only state with an “opt-in” rule meaning users should receive spam only if they sign up to do so, Sorkin said. But Delaware hasn’t successfully prosecuted any cases against spammers, and the unsolicited e-mails persist, he said.

Here’s a look at other state approaches:

• Maine’s legislation requires spam to include instructions for recipients to opt out of further messages. The law, passed in May, applies to unsolicited commercial e-mail sent to two or more residents.
• In Nevada, which in 1997 became the first state to enact spam legislation, the subject line of a spam message must begin with “ADV” or “ADVERTISEMENT.”
• The law signed by Michigan Gov. Jennifer Granholm July 14 requires valid return e-mail addresses and ADV labels.
• Arkansas law requires that sexually explicit spam messages be labeled “ADV:ADULT.”

“Each new state legislature seems to adopt the same approach, thinking maybe lightning will strike,” said Ray Everett-Church, counsel for the Coalition Against Unsolicited Commercial E-mail, which advocates legislation to combat spam. “Unfortunately, we haven’t seen any meaningful reduction in spam volume.”

A No-Spam registry, similar to the Federal Trade Commission-monitored Do Not Call list, could put a dent in the unwanted e-mails, said Matthew Prince, chief executive officer of unspam, which advocates legislation and technology to counter spam. These registries, considered during the last legislative session by eight states Arizona, Colorado, Maine, Michigan, Missouri, New York, Oregon and South Carolina would allow e-mail users to opt out of receiving spam, he said. None of the proposals became law.

Although almost everyone agrees on the need to regulate spam, not everyone agrees on the method. Dennis Darnoi, senior adviser to state Sen. Mike Bishop, R-Mich., called Microsoft Corp. “the axis of inertia” for tossing out time-delaying arguments against Michigan’s proposed No-Spam registry. Michigan’s registry would have allowed parents to block their children’s e-mail addresses from receiving pornographic messages, Darnoi said.

Microsoft Public Relations Manager Sean Sundwall said the company feared a No-Spam list could fall into the hands of bulk spammers. Instead, Microsoft supports opt-out proposals and ADV labels, he said.

AeA, a high-tech trade association formerly called the American Electronics Association, also opposes a No-Spam Registry. Marc-Anthony Signorino, AeA’s technology policy counsel, said a registry would prevent consumers from receiving offers from legitimate marketers.

“It’s not going to prevent the bad guys, the Nigerian e-mail scams,” Signorino said, in reference to get-rich-quick schemes. “They’re not going to go, Oh, wait a minute, we can’t send this person an e-mail because they’re on an FTC list.'”

Seventy-four percent of consumers support a federal No-Spam registry, according to a July survey conducted and funded by the ePrivacy Group, a Philadelphia-based company that advises government agencies on electronic privacy issues, and the Ponemon Institute, a Tucson, Ariz.-based think tank dealing with information management practices. The survey was sent to 4,889 people who participate in consumer product research, and 1,181 people responded, Ponemon Institute founder Larry Ponemon told Stateline.org.

“The avalanche of unsolicited e-mail has sparked an outcry,” Sen. Charles Schumer, D-N.Y., said at a July 23 press conference on Capitol Hill. “This survey … lends support to my assertion that the best way to fight e-mail spam is by creating a No-Spam registry.”

Schumer has proposed legislation to create a national No-Spam registry. His bill includes parental control mechanisms and requires ADV labels.

Prince, from unspam, said Schumer’s proposed legislation is the only viable bill at the federal level.

“The other bills have strong preemption language which would prevent states from passing any other anti-spam legislation,” Prince said. “It’s very important not to shut down the laboratories of democracy the states.”

Prince said the only state that has enjoyed relative success enforcing its anti-spam law is Washington, where the attorney general’s office has successfully prosecuted four cases against spammers. The state maintains an Internet registry where citizens can enter their Washington e-mail addresses. So far, roughly 30,000 addresses appear on the registry.

Spammers are supposed to abide by Washington spam laws which prohibit false routing information and false subject lines when sending e-mail to people on that list.

“It’s a way of establishing jurisdiction, showing a spammer should have known,” said Paula Selis, senior counsel with the Washington State Attorney General’s office.

But enforcing labeling requirements and banning certain language may endanger First Amendment rights, said Marv Johnson, legislative counsel for the American Civil Liberties Union.

“The First Amendment says you have a right not only to speak, but not to speak,” Johnson said. “When you start having people afraid to talk because they’re afraid they’re going to get nailed by spam laws, the overall effect is to chill free speech.”

Despite the differing opinions, no one denies that spam is increasing and at an astronomical rate. Spam referring to unsolicited commercial e-mail first appeared in Merriam-Webster’s Collegiate Dictionary in 1999. Since then, the amount of spam the average e-mail user receives in one year has increased more than 60 times, according to statistics in Schumer’s legislation. The SpamCon Foundation, which advocates reducing spam, estimates that 10 billion spam messages go out each day.

“I think the issue has a lot more momentum now than it did a year ago,” Sorkin, the spam law professor, said. “I’m really worried about the day when 99 percent of e-mail is spam, and I don’t think we’re that far off from that.”