Technology & The Trial Lawyer

Can That Spam

by Susan J. Silvernail

Spam or "spamming" is the act of flooding the Internet with unwanted e-mail. It's generally commercial advertising, often for products that don't work or don't exist, and sometimes pornographic. But it's always annoying.

Don't believe me? Check out the only official "SPAM" website and you'll see even the good folks at Hormel Foods don't want their canned meat product confused with spam ("…we do object to the use of our product image in association with that term. Also, if the term is to be used, it should be used in all lower-case letters to distinguish it from our trademark SPAM, which should be used with all uppercase letters.")

A visit to the SPAM site also yields the origin of the slang term for unsolicited commercial e-mail: "Use of the term 'spam' was adopted as a result of the Monty Python skit in which a group of Vikings sang a chorus of "spam, spam, spam…" in an increasing crescendo, drowning out other conversation. Hence, the analogy applied because UCE was drowning out normal discourse on the Internet".

So what is it about spam (lower case letters) that makes the other lunch meat (upper case letters) look good by contrast? See it from the perspective of the organized antispammers like the Coalition Against Unsolicited Commercial Email (CAUCE) which finds spam to be no laughing matter:

1. It's growing. On just one day, April 30, 2003, American Online, the world's largest Internet service provider, blocked 2.37 billion spam messages from reaching the in-boxes of its 26.2 million users. That's 88 pieces of spam per user. Microsoft, which operates both MSN, the world's second-largest ISP, in addition to the Hotmail e-mail service, recently claimed it's blocking 2.4 billion spam messages per day. If spam keeps growing, it will crowd our mailboxes to the point that they're useful for real mail.

2. It Costs. It's incredibly cheap to send bulk email but not so cheap to receive it. The increasing volume of spam is creating a drag on the processing load of ISPs. Not to mention that the spam is eating up the bandwidth the ISPs must purchase for their connection to the rest of the Internet. When unwanted junk e-mail begins to consume an ISP's bandwidth, that cost is passed along to paying customers.

3. It's annoying. It's inconvenient and it takes time to deal with chain letters, miracle cures, off-brand computer parts, get rich quick schemes and the like. Your e-mail address is yours, you paid for it, and you should have control over it.

4. It's theft. To avoid the blocks and filters that ISP's and consumers have been forced to set up, spammers increasingly are using the mail server of an innocent third party to replay their messages. This floods the innocent relay system with junk email and exposes them to complaints from recipients who thing the intermediate system must be in league with the spammers. Other spammers use "hit and run" spamming in which they get a trial dial-up account, leaving the provider to clean up the mess.

5. It's fraud. Spammers know you don't want to get their junk mail, so to get you to open the message, they will disguise the origin of their message by replaying it through an innocent party or forge the headers of messages. Spam messages typically say they'll remove the names on request, but reportedly they almost never do. In fact, some junk e-mailers simply treat the remove request as verification that your email address is valid and continue to spam it. 6. It may be illegal. Spam e-mail is rapidly becoming more offensive. According to Brightmail, a spam filtering firm, in June 2003, in the United States, 19 percent of spam was pornographic. That's nearly fifth of al spam.

In fact, if the Federal Trade Commission is to be believed, sexually explicit solicitations to visit adult-oriented Web sites are commonly contained in spam e-mails with innocuous subject lines such as: "Fwd: You may want to reboot your computer", Re: Please resend the email", Re: your email address" and "New movie info". The FTC recently took steps to shut down an allegedly illegal spam operation that exposed consumers, including children, to sexually explicit images.

On April 15, 2003, the FTC sued the operator in federal district court in St. Louis, Missouri based on alleged violations of the FTC Act, which prohibits unfair and deceptive acts or practices in or affecting commerce. The FTC seeks restitution for the victims and a permanent injunction against any further violations of the FTC Act.

More than half of the states have enacted antispam legislation. Regrettably, Alabama is not included in that number. The anti-spam laws typically prohibit the sending of unsolicited commercial email that contains false or missing routing information. The laws have proven difficult to enforce because they frequently only apply to e-mail sent from the state. Virginia has sought to fix that. Virginia's statutes contain a provision asserting jurisdiction over any person causing an injury in Virgina, and stating that "Using a computer or computer network located in the Commonwealth shall constitute an act in the Commonwealth".

Virginia, which is home to America Online and many other Internet service providers, arguably now has the toughest anti-spam laws in the country. At the end of April, Virginia became the first state to permit felony prosecutions and seizure of the criminal's assets.

The demand to take back the Internet from spammers reached Washington, D.C., this summer, In committee hearings, Senator Charles Schumer (D-NY) said the time has come to get tough on spammers. Schumer quotes research that suggests spam costs businesses in the United States $10 billion each year in lost productivity, consumption of information technology resources and help-desk time. Schumer also sees links between spam and other crimes such as identity theft and fraud. The bill getting the most attention in the Senate has been dubbed the "CAN-SPAM Act of 2003". CAN-SPAM establishes that senders of spam should not mislead recipients as to the source or content of such mail; and recipients of spam have a right to decline to receive additional spam from the same source. The bill would impose a fine or imprisonment on any person who initiates the transmission to a protected computer of a spam message with knowledge and intent that it contains header information that is materially false or misleading. CAN-SPAM gives enforcement powers for violations of this act to the FTC. It also permits ISPs adversely affected by a violation of this act to bring a civil action. It would set a maximum civil penalty of $1.5 million.

If your're interested in learning more, or just plain fed up with junk e-mail, check out these web sites: www.cauce.org; http://spam.abuse.net; and www.spamlaws.com

This article first appeared in the Alabama Trial Lawyers Journal, Summer 2003, Volume 23, Number 3 issue.