States target unwanted e-mail

By The Associated Press

07.29.02

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COLUMBUS, Ohio — After someone relayed thousands of pornographic e-mails through a client's Internet connections, Barry Hassler was happy to support an Ohio bill trying to crack down on unwanted e-mail known as spam.

But Hassler has doubts about the effectiveness of the legislation he supported.

"It's hard to track down the real source of this information to be able to prosecute someone," said Hassler, founder of HCST, an Internet service provider in suburban Dayton. "To this day, we don't know where these messages originated from."

Ohio and other states are rushing to enact laws cracking down on spam even as some technology experts and state officials question the laws' effectiveness.

Some direct marketers and business groups have also criticized the laws, saying they have a First Amendment right to send e-mail solicitations.

Anti-spam legislation was introduced in at least 30 states in 2002, with laws passed by Kansas, Maryland, Minnesota, South Dakota and Utah, according to the National Conference of State Legislatures.

Gov. Bob Taft is scheduled to sign Ohio's anti-spam law Aug. 1. Ohio's bill doesn't attempt to ban spam, but would levy a fine of $100 per unwanted e-mail up to a total of $50,000.

"I'm certainly not discouraging states from passing their own spam laws, but the federal government should act," said Jason Catlett, president of Junkbusters Corp., a privacy advocacy group that supports anti-spam legislation. "Let's face it, if you put a vote to the American people, 'Should spamming be banned?' you'd get a 'yes' in the 90 percent plus range."

David Sorkin, a professor at John Marshall Law School in Chicago, said state laws too often attempt to regulate "the annoying parts of spam," such as misleading subject lines, rather than spam itself.

"Those are just some of the symptoms, rather than the problem of spam itself, which is that a huge volume of e-mail is sent unsolicited to people who have little or no control over it," Sorkin said.

Delaware enacted an anti-spam law in 1999 that made the sending of unsolicited bulk mail illegal and set penalties of as much as a year in jail or a maximum fine of $2,300. But no cases have been prosecuted, said Delaware state prosecutor Steve Wood.

"Police have found it difficult to enforce the law because of the anonymity of the Internet," Wood said. "It is difficult to identify an actual human being or organization as being the initiator of illegal spam."

In Kansas, Gov. Bill Graves signed a law in May requiring e-mails promoting services to identify the sender and to include "opt-out" provisions. Violators could face a fine of as much as $10,000 per incident.

Sen. Karin Brownlee, chairwoman of the Kansas Senate Commerce Committee, said she views the state's legislation as a first step.

"Because the Internet has no boundaries, no state lines, I think we're going to need something on the federal level," she said. "It would be easier for the commercial interests to adapt to one federal law that says, 'These are the rules.' "

Bills regulating spam are pending in both the U.S. House and Senate, although neither is an outright ban. Instead, they require an opt-out provision and provide penalties for forged subject lines.

In Washington, the state attorney general has used that state's 1998 law to file at least three lawsuits against alleged spammers, including individuals in Oregon and Minnesota.

"Enforcing these statutes, unfortunately, is a difficult thing to do," said Steve Larsen, manager of the Washington attorney general's high-tech unit. "A lot of times, spammers are not located in the jurisdictions where you're trying to enforce a statute."

One problem with any law, whether state or federal, is it attempts to target individuals who are adept at avoiding detection, said Geoff Galat, marketing vice president at Tumbleweed Communications, a California company that sells spam and virus-filtering software.

"Spammers are incredibly creative people and good at launching their spam attacks from outside the state they're doing business in," Galat said.

Despite such criticism, Ohio's law has value, said Rep. Thom Collier, chairman of the House Economic Development and Small Business Committee.

"This law gives some teeth to the Internet service providers to be able to pursue and discourage those potential spammers," said Collier, a Mount Vernon Republican. "It says, 'If you are persistent in spamming, it's worth us coming after you.' "

Related

Lawmakers push anti-spam bills
But many direct marketers say they have a First Amendment right to make e-mail pitches.  07.22.02

California bill would bar spam, fine senders
Opponents say stringent measure would penalize legitimate e-mailers, leave rogue advertisers untouched.  12.09.02