Will US crack down on rising volume of e-mail 'spam'?

State and federal lawmakers are taking regulatory aim at unsolicited commercial e-mail, or "spam," which litters in-boxes, taxes computer networks, boosts access prices, and often serves as a carrier of pornography or fraud.

The Gartner Group, a research firm, now says that 90 percent of Internet users get such e-mail at least once weekly. "Spamming is not all that profitable," says Andrew Barrett, of the Forum for Responsible and Ethical E-mail. "It's just that the cost of failure is so unbelievably low that lots of would-be spammers just shrug and think, 'Why not give it a try?' "

Some industry groups and legal experts say spam is a form of commercial speech that, like direct mail, enjoys constitutional protection. Others say it is a form of advertising similar to telemarketing calls or junk-faxes - and so, not protected.

When unleashed, spam traverses a web of private networks, forcing Internet-service providers (ISPs) to buy hardware and upgrades to handle the extra load. Those costs are then shifted to the consumer.

Two years ago, only two states had anti-spam laws. Today, 15 have laws on the books and others are following suit, as are some members of Congress. Experts say fraud and truth-in-advertising laws can be extended to cover crimes associated with spam. And while it is unlikely the government will outlaw all forms of unsolicited e-mail, lawmakers are addressing a host of fraudulent gimmicks used to sidestep filtering software - and to entice users to read their messages.

Here are some issues to watch:

Misleading subject lines. Some lawmakers support laws outlawing bogus information in an e-mail's subject line. Spammers often write innocuous messages like "Sorry I missed your call" when the e-mail is intended to sell a travel package or promote a pornography site.

"But how do you define misleading?" asks Marve Johnson, legislative director for the American Civil Liberties Union. "You have to have people making subjective judgements about whether the header accurately reflects the subject."

Acting on those concerns, some states have sought alternatives. California and Tennessee require spammers to label their e-mail by inserting "ADV:" into the first four letters of the subject line. Colorado is considering similar legislation.

Rutt Bridges, a lobbyist for the Bighorn Center for Public Policy, a Colorado-based think tank, supports the ADV requirement, adding that recipients only need to know that the e-mail is an advertisement. "We don't care if the information in the subject line is misleading or not, we're just saying it can be as misleading as it wants to be as long as it has 'ADV,' " he says.

But free-speech advocates and industry groups vehemently oppose the labeling requirement. "The First Amendment applies not only to a situation where the government says you can't speak," says Ms. Johnson. "It applies to situations in which the government says you must speak. So when government says you will put the ADV label on messages, they are compelling speech, and that is prohibited under the First Amendment."

Valid routing addresses. In order to avoid filtering and blocking technologies, spammers often route their advertisements through a third party's server without permission. Thus, spammers intentionally ignore "remove requests" that might be sent by recipients of the spam while besmirching the reputation of ISPs whose domain name they hijack. Most anti-spam laws outlaw the practice.

Selection of enforcers. Issues of enforcement are paramount in the libertarian world of the Internet. The Internet community is likely to support those regulations that leave enforcement to ISPs.

"We don't want to inject government into the Net," says Rep. Gary Miller (R) of California, who is co-sponsoring an anti-spam bill in Congress. "We want flexible and reasonable parameters, and we want to empower the ISP to determine whether they want to permit spam. We want to empower ISPs rather than the government."

Among other things, Mr. Miller's bill, which was recently merged with one sponsored by Rep. Heather Wilson (R) of New Mexico, gives ISPs the right to sue users who violate their spam policies.

Will courts keep pace with public antispam fervor? A court in Washington recently overturned that state's anti-spam law for being "unduly restrictive." And legal experts say judges are likely to view state efforts to combat spam as interfering with interstate commerce.

For now, spam may stay out of the can.

(c) Copyright 2000. The Christian Science Publishing Society

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