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Spam

Please don't shoot the messenger, but I don't think that the spam problem is going to improve anytime soon. Moreover, if you hate spam as much as I do, you will not be pleased to know that May 2003 was the first month where spam constituted more than 50% of all email.

In case you were wondering how you email luncheon meat, it will be our little secret that you didn't know that I'm not talking about "Spam®" the food, but rather "spam," which most people define as "unsolicited commercial email." It's that junk that fills your email in-box trying to sell you things like cable descramblers, diet programs, pornography, and herbal Viagra.

Spam is even starting to invade text based messaging over cell phones, PDAs, Palms, and Pocket PCs. It's already a major problem in Europe and Japan where text messaging has been around for a while. What's worse about this is that unlike Internet spam, wireless phone spam comes with an annoying beep on your phone and a direct price tag. Depending on your price plan, you might be paying about a dime for the privilege of receiving each piece of junk.

I'm pessimistic about our ability to improve the spam problem through legislation. I don't think Congress has the guts to do what it will take. I think it's going to mostly take self-help, but that's inconvenient and most people aren't going to do it.

There's already plenty of so-so technology out there involving filters and other technologies, and while they may help, I don't think they come even close to solving the problem. I now receive about 400 spams a day and my Internet service provider's filtering service successfully intercepts about 325 of those. Still, that's about 75 per day that I have to delete. At the rate spam is growing, I suspect that 400 will become 800 within a year and the 75 that slip through will grow to 150. This isn't good.

So, I'm a lawyer, I must favor legislation - right? Well, "yes" - sort of.

Good legislation can be a good start, but it's not a panacea. Let's start with the ease with which spammers can take their operation offshore and outside of the practical reach of the American legal system. I mean we could send in the Marines to shut them down, but somehow I suspect that the French might object.

If you think state legislation is the answer, I would argue not. Right now, approximately 34 states have some kind of anti-spam legislation on the books. Have you noticed anything good coming from all those laws?

Virginia, AOL's home state, has the most aggressive anti-spam law on the books. It makes sending spam a felony punishable by one to five years in prison, a variety of fines, and the seizure of profits and income.

Typical state laws do things like outlawing false and misleading subject lines. Some require a label at the beginning of the subject line, usually a variation of "ADV:" and "ADV:ADULT."

Others require instructions or a mechanism allowing you to opt-out of future email. The problem is that spammers often use your attempt at an "opt-out" as a way to validate your email address. The result is that you therefore get more spam than ever.

Some states prohibit what's called "spoofing." This means that a spammer cannot use a third party's address or domain name without their consent. These laws will typically require valid contact information including the sender's name, a working return email address, physical address, and domain name.

As for Florida, we don't have a general anti-spam law although the Florida Bar does have some rules pertaining to lawyers.

At the Federal level, the "Can Spam Act of 2003" (Can Spam) unanimously passed through the Senate's Commerce committee in June. Can Spam is aimed at bulk emailers who hide their identities, peddle porn or scams, and fail to let you opt-out.

I think that the proposed Federal law is deficient in that its starting point is wrong. It's an opt-out law instead of an opt-in, and that's an important distinction. As written, a spammer can send you email until you opt-out. I would rather turn this around and write the law so that you don't get it unless you ask for it.

Some might say that Can Spam is a good start, but I don't agree. In passing our first Federal law on spam, I think it's a terrible start. Opt-out is simply the wrong paradigm and if we pass this, it will create an inertia that will take years to overcome.

Let's get this right the first time. Let's put the burden on those who fill our mailboxes with junk to prove that we asked for it. If they can't prove it, let's make it $1,000 per email up to $100,000 for each day's mailing. Let's allow individuals using small claim's court, attorney's using class actions, and state attorney's general using the power of their office to enforce this. With multiple antagonists attacking on multiple fronts, maybe we can begin to reduce the problem.





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