Even though 25 states have laws regulating unsolicited commercial e-mail, so-called "spam" pushing love potions and new miracle diets keeps showing up in your inbox.
Why? Because states rarely enforce anti-spam laws. Spammers are hard to locate, prosecutors have other priorities, and getting jurisdiction over spammers, particularly if they are sending their electronic junk mail from outside the United States, is nearly impossible.
Delaware Attorney General Jane Brady, which has one of the strictest anti-spam laws in the nation, said, "A lot of states envy my law. Some people might have thought, We're going to pass this law, and we're going to stop spam.' "But unfortunately that's not a reality we've been able to make happen because of limited resources and having to prioritize, and not being able to identify who the people are offshore," Brady said.
The difficulty of prosecuting cases hasn't stopped states from enacting anti-spam laws, most of which regulate misleading messages or require the letters "ADV" in the subject line.
Kansas, Maryland, Minnesota, Utah, and South Dakota added anti-spam laws this year. Kentucky and Illinois considered, but failed to pass, anti-spam measures.
Illinois Rep. John Fritchey, D-Chicago, said he pushed his anti-spam bill this year because "when somebody is sending you unsolicited junk e-mail, in essence they are sending you junk mail that is postage due.
"People have had enough of getting unsolicited e-mail sent to them or their kids for anything from Viagra without a prescription to barnyard fun with college co-eds. I'm very aware of the commercial value of some (e-mail) and the free speech issues. All we're saying is, put something in the header that identifies it as an advertisement," he said.
Fritchey admits prosecuting violators is problematic, based on other states' experiences. So far, Massachusetts, New York, and Washington have brought cases against e-mail marketers.
Last year, the U.S. Supreme Court granted states the right to rein in spammers in the absence of federal anti-spam laws by refusing to hear a challenge to the Washington state law that set standards for junk e-mailers and penalties for violators.
That Washington state case, going back to court Sept. 30, could affect states' rights, or at least states' willingness to legislate on spam.
Defendant Jason Heckel, an Oregonian, claims that the anti-spam law is invalid because commercial e-mail falls under the interstate commerce clause of the U.S. Constitution, and therefore is not subject to state regulation.
If Heckel is found liable, he could be fined $500 for each of the 18 e-mails he sent.
"Many states are going to be looking at this case to see how it goes, but it's certainly going to send a message to would-be spammers," said Chris Jarvis, spokesman for Washington State Attorney General Christine Gregoire.
Courts across the country are sorting out cases brought by individuals that test the limits of the new anti-spam laws. But legal experts question whether any law will curb spam, and say technical solutions that block spam may be more effective.
David Sorkin, associate director of the Center for Information Technology and Privacy Law at John Marshall Law School in Chicago, said, "Most spam laws are too weak to be effective against the real harm of spam because most of them focus on disclosing the identity of the sender, and requiring opt-out instructions."
"The real danger of weak laws is that they chip away at the stigma that's attached to spam, and so a lot more marketers will start using it and make the problem worse," he said.
Marketers complain about facing different requirements for commercial e-mail messages in 25 states.
"In a perfect world, the 25 state laws would go away, but that's being utopian," said Jim Conway, vice president of government relations for the Direct Marketing Association, a trade association of marketers. "It would be nice if the states talked to one another and there was more uniformity. I don't think that's going to happen either."
A federal anti-spam bill moving in the U.S. Senate would set fines for sending spam with false routing information or a misleading subject line. The U.S. Senate Commerce Committee approved the bill May 17.
Marketers don't support the bill because they endorse self-regulation, but they favor its provisions to pre-empt state laws.
"It would be simpler, if there had to be a law, if there was just one," Conway said.