Anti Spam Litigation example essay topic

SPAM: What Are The Costs To Businesses? What Legal Defenses Exist? spam (sp m) n. Unsolicited e-mail, often of a commercial nature, sent indiscriminately to multiple mailing lists, individuals, or newsgroups; junk e-mail. (web) The Cost To Businesses: Spam will cost U.S. organizations more than $10 billion this year, according to Ferris Research Inc., a San Francisco consulting group (Krim, 2003). That amount is greater than the gross national product of Albania, Jamaica and Belize combined. (World Resources Institute, 1996) According to Krim, "roughly 40 percent of all e-mail traffic in the United States is spam, up from 8 percent in late 2001 and nearly doubling in the past six months". Krim's sources also expect the increase to continue.

Recently, the Federal Trade Commission (FTC) performed an analysis of 1,000 unsolicited emails that were submitted to its e-mail address. (McGuire, 2003) "The address", according to McGuire, "stands for unsolicited commercial e-mail" and serves to provide a forwarding point of spam email to federal authorities. McGuire states that "there is no federal law against sending spam, though the FTC can prosecute bulk e-mailers who send deceptive or false information". For example, the FTC charged one recent defendant in this manner by way of unfair and deceptive practices, violations of the FTC Act. (FTC, 2002) Additional highlights from the 2003 FTC Spam Report that McGuire covered include the following: .

Business opportunity / investment messages comprised most of the spam described in the report, accounting for about 20 percent of the e-mail. Adult-oriented spam was second with 18 percent of the total sample... 90 percent of business opportunity / investment spam contained fraudulent text... 96 percent of the business opportunity / investment messages contained false information in the body text or the "from" and "subject" areas... Only 2 percent of spam messages used the abbreviation ADV (advertisement) in their subject lines, as required by law in several states, including California, Colorado, Indiana and Kansas (web). Businesses Fight Back: State Legislation of Spam Presently, about 30 states have enacted state laws to make it illegal to send unsolicited e-mail messages without first meeting certain conditions, such as the "ADV" prefix mentioned above.

In addition, some states such as Arkansas, Colorado and Delaware make it illegal to use falsified routing information, which prevents a recipient from knowing the origin of the e-mail. (Sorkin, 2003) One of the toughest advocates against spam is the state of Ohio. A law approved in August, 2002 requires unsolicited email messages to contain the sender's name, address, and e-mail address, along with opt-out instructions, and requires senders to honor opt-out requests. The Ohio law also makes it illegal to forge the sender's address or other routing information in commercial e-mail messages. (Sorkin, 2003) In addition, Sorkin's law summary explains that the Ohio law gives providers a right to civil action in certain cases against the sender of bulk commercial e-mail messages, (when in violation of such providers's t ated policies). Federal Legislation of Spam Presently, no Federal level spam laws exist, although several bills remain open on the floors of congress.

Therefore, the only federal enforcement against spam so far has fallen under other existing laws such as the case above involving the FTC's Unfair and Deceptive Practices ruling under the FTC Act. One of the major obstacles in enacting federal level spam legislation is the Supremacy Clause which in effect gives the constitution and federal laws of the United States "preemption" over state and local laws in the case of a conflict. (Jennings, 2003) In the article "States Object to Spam Legislation" from the Washington Post, David McGuire discusses 44 states and District of Columbia's preference not to support "two of the U.S. Congress's most vaunted plans to cut down on the proliferating spam plague". Of the nearly 30 states with existing anti-spam laws on the books, most feel that such proposals would weaken consumer protections, due to preemption.

One pending bill from the Senate (CAN-SPAM Act of 2003, S. 877), reintroduced in April of 2003 "would require unsolicited commercial e-mail messages to be labeled and include opt-out instructions and the sender's physical address", (similar to Ohio's state law). (Sorkin, 2003) The law would also "prohibit the use of deceptive subject lines and false headers in such messages". But according to Jason Catlett, president of Junk busters Corporation, and anti-spam advocacy group, "CAN-SPAM would probably cause a net increase in spam by weakening existing state rules". (McGuire, 2003) Catlett adds that "settling for a weak bill that stops stronger measures will just allow the problem to get a lot worse". Direct Marketing Association (DMA) President Robert Wientzen disagrees with Catlett and supports the CAN-SPAM bill. (McGuire, 2003) According to Wientzen, "states are using the spam issue as a way to defend their legal sovereignty.

The Internet is not a place to make a states' rights argument", he explains. Civil Litigation Against Spam According to Jonathan Krim, Washington Post Staff writer, "the barrage of (anti-spam) law suits reflects a heightened industry, legal and legislative effort to combat spam". Krim's article mainly discusses an America Online Inc (AOL) lawsuit, but also makes mention of litigation from such industry giants as Earthlink Inc., Microsoft Corp. and Yahoo Inc. In the AOL lawsuit, "five separate filings against more than a dozen individuals and companies petitioned for a total of $10 million in damages and a halt to the spammers' e-mail activities under a number of state anti-spam laws and federal computer-fraud laws". Earthlink successfully won a $25 million judgment last year against a Tennessee based spammer, according to Krim. Opponents To Spam Litigation It is difficult to imagine much opposition to spam, aside from the illicit spammers themselves, but in fact, some places of business do worry about excessive anti-spam legislation.

In a Pioneer Press article by Leslie Brooks Suzukamo, non-profit development director "Shelley McKay" states her concern over all e-mail marketing being cutoff by such anti-spam litigation. McKay explains that non-profit organizations used e-mail to promote legitimate forums and the like. "It's kind of scary to think (e-mail marketing) might not be around", she recently told senators at a recent FTC forum. Can Spam Laws Be Enforced? Spam is extremely difficult to prosecute, simply because of the identity issue concerning the sender (s) involved. According to Laurie Tarto of the online Canada Law book (web), "the source of spam is hidden, usually by disguising the sender's address or subject.

Spammers often use a fake return address, forge the header of a message or use intermediate systems without the administrator's knowledge". Although there are sophisticated ways to detect the original sender, the sheer number of spam messages sent, (over 1 billion to AOL subscribers alone), creates a real undertaking to go after the top spammers and their affiliates. (Krim, 2003) It does appear however, that the fight can be won by anti-spam proponents, as evidenced by successful prosecutions and civil litigation of the FTC action, and Earthlink suit, respectively. On The Horizon; The Future of Spam: With so much current (state) litigation in place, and federal bills on the docket, it might be easy for some to assume that the spam problem will be eradicated some time in the near future.

Jacqueline Emigh, of CrossNodes (and on-line technology publication), believes that spam will become "an undoubtedly larger problem than it is today". (Emigh, 2003) Perhaps Emigh feels that the technology spammers utilize will forever lead the race over the anti-spam logic present in many of today's freeware and software programs. Author's Opinion: I personally believe that spam will always be around to some degree, like every other annoying or illicit behavior that exists. To some degree, legislation (both civil and criminal) should have an effect on reducing the number of spam e-mails and originators, but a great deal of it is contingent upon the examples set by judges and juries. It also depends upon "anti-spam cops" abilities to find and prosecute those who break local, state and federal regulations.

I am in favor of a national approach to anti-spam litigation. Though I do not believe in "over-litigating" against all forms of electronic marketing practices. With deceptive and fraudulent behaviors restrained, the end user can take back control with existing software measures by way of address blocking, and voluntary opt-out programs. Brooks Suzukamo, Leslie.

"Senators Declare War On Junk E-Mail" Pioneer Press web April 24, 2003 Dictionary. com. (Internet Dictionary) web Emigh, Jacqueline. "In The Year 2005, Will Your Anti-Spam Arsenal Be The Same?" CrossNodes web Federal Trade Commission. "False Claims In Spam" (Full Report from Krim article) web April 30, 2003 Federal Trade Commission. "Federal, State, and Local Law Enforcers Tackle Deceptive Spam and Internet Scams" web November 13, 2002 Jennings, Marianne M. "Business, Its Legal, Ethical, & Global Environment" Sixth Edition, (Section on Preemption and Supremacy Clause) pp. 177-178 Krim, Jonathan.

"Lawsuits by AOL Escalate Fight Against Junk E-Mail" Washington Post web April 15, 2003 Krim, Jonathan. "Spam's Cost To Business Escalates" Washington Post web April 29, 2003 McGuire, David "States Object to Spam Legislation" Washington Post Washington Post web April 30, 2003 Sorkin, David E. "Spam Laws" web 1999-2003 Tarto, Laurie, "Who " ll Stop The Spam" web World Resources Institute. "World Report on Gross National Product" web (1996-1997).