Governing SPAM; Current Status and International Effects

©M. Elizabeth Fraser, written for George Mason University’s IT-304 course,
ICT and the Global Economy, Summer 2004

In the United States, President Bush signed a major federal law against SPAM in December of 2003 and it took effect the following month, known as the “CAN SPAM” Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act). Since then, the Federal Trade Commission has been “authorized but not required” to begin a do-not-email registry similar to the very popular do-not-call registry against telemarketing phone calls.[1]

There are also 38 states that have laws on the books against SPAM. Most commonly, the law’s provision will (one or a combination of these):

· Require labeling the subject line “SPAM”

· Prohibit falsifying routing information (i.e., sender)

· Require email to include opt-out information for recipient

· Prohibit “harvesting” of emails (from recipient, unaware).[2]

The states vary in their approaches considerably. For example, Virginia has some provisions in the law that relate to false warrantees and child support or divorce issues; Ohio has wording that particularly addresses “use of a computer beyond the consent of the owner or authorized user”; and Maryland has terms that connect some kinds of electronic mail to “criminal telephone harassment.”

There are many court battles occurring and expected on various grounds, relating to existing legislation. Recently, the Supreme Court of Appeal of Pennsylvania ruled that they found “nothing that would justify regulating unsolicited commercial email” (citing the First Amendment). Microsoft filed suit against a SPAM network “allegedly responsible for sending more than 250 million junk e-mails daily.” But some claim that this kind of lawsuit mainly is intended to convince users that email providers like America Online, Microsoft, Yahoo! and EarthLink are serious about protecting their interests.[3] The international anti-spam project, “Spamhaus,” runs a formal block list of Internet spammers and helps law enforcement to track and pursue spammers worldwide. They define spam as necessarily both unsolicited and bulk email. Many of the 1^st-Amendment defenses of advertisers using spamming rely on the fact that people will not want to deny all unsolicited email.

“WORKING TO PROTECT INTERNET NETWORKS WORLDWIDE
Spamhaus tracks the Internet's Spammers, Spam Gangs and Spam Services, provides dependable realtime anti-spam protection for Internet networks, and works with Law Enforcement to identify and pursue spammers worldwide.” (The Spamhaus Project, www.spamhaus.org, accessed June 8, 2004)

One of the most serious difficulties in fighting spam is the fact that many of the sources directing information to U.S. companies and consumers are offshore. Spam coming from foreign sources has to be fought with ever-new tactics, similar to the anti-virus solutions that must be updated whenever some newer invention surfaces. The U.S. and U.K. have formed a jointly supported resolution, “Directive on Privacy and Electronic Communications,” which has associated enforcement measures, fines, and terms for prosecuting illegal spam; but advertisers are still often able to avoid the effects by moving across a border.

“The majority of illegal proxy spam is sent by known US-based spammers through computers which have been deliberately infected with viruses by Russian spam gangs, whom in turn sell lists of "freshly infected proxies" to the US-based spammers. Spammers purchasing lists of "fresh proxies" and sending spam through them hoping to hide the origin are committing criminal acts in numerous countries and are the spammers the law enforcement agencies have been concentrating on since the introduction of the CAN-SPAM Act in the U.S in January.” (“Spammer Arrests Herald FTC Crackdown on Illegal Spamming,” http://www.spamhaus.org/news.lasso?article=152, April 2004, accessed 06/08/04)

The U.S. Federal Trade Commission brought suit against an Australian spammer previously convicted of dealing in child pornography[4] relative to advertising for human growth hormone (May 2004) and other sexually explicit spam (which under newly drafted rules will have to be labeled “sexually explicit.”) See news article:

“The FTC suit also names Global Web Promotions director and majority shareholder Mike Van Essen - marking the second time in less than two weeks that Mr. Van Essen has found himself facing court action.” ("US Hits Perth Firm with Spam Suit," The West Australian, May 3, 2004, http://www.thewest.com.au/20040503/business/tw-business-home-sto124245.html, accessed 06/08/2004)

The CAN SPAM Act particularly prohibits “spoofing” Internet addresses, which can result in the return of numerous undeliverable emails to the innocent victim, flooding servers. The defendant of the spamming company (who was in New Zealand at time of filing) claims not to have been formally served with legal papers; and it is yet unclear how or whether extradition will be pursued or what further roles the other governments will play in the suit.[5] U.S. authorities have brought the case against the Australian company with the help of the Australian Competition and Consumer Commission and the New Zealand Commerce Commission. It is clear, at least, that a number of governments are serious about working together to cooperatively prosecute these kinds of offense.