Email Spam: The Bandwagon Plays On, Part 2
TidBITS has published a variety of articles about how to deal with unsolicited commercial email (UCE), more commonly referred to as "spam" (see "Responding to Spam" in TidBITS-442). As the problem has increased with the widespread popularity of the Internet, lawmakers have begun to pay serious attention to the bulk email that’s flooding their constituents’ mailboxes. In the first part of this article, I covered the legal definitions of spam and some of the studies done by governmental bodies into the severity of spam. In this installment, I’ll talk about how various governments propose to handle this growing problem.
Response by Congress and the States — Email solicitation has much in common with other forms of commercial bulk marketing such as junk mail and broadcast advertising. Advertising speech is protected by the First Amendment and an outright ban on any type of advertising, including bulk mail solicitations, would be unconstitutional. But commercial speech can be regulated to a greater degree than private speech.
Based on two Federal Trade Commission reports (see the first part of this article), as well as the increasing number of consumer complaints, Congress and several states began considering legislative solutions to the problem. Congress has not yet passed any legislation, but 20 states have considered the issue and 15 have enacted laws on the subject. Others are actively considering legislation to address the problem.
The state and federal statutes – both proposed and enacted – contain many similar provisions. A business that wishes to advertise on the Internet can generally avoid violating the statutes by complying with certain rules such as:
Include valid headers and particularly include a return address such that the recipient of an email solicitation can reply to a valid email address that is monitored to ensure that it does not become full and begin bouncing email.
Include instructions in the body of the message providing an email address, a toll-free telephone number, or both, so a recipient can ask to be removed from the mailing list.
Maintain an "opt out" list of persons who have asked not to receive email solicitations and ensure they are removed from the mailing list. (Statutes are unclear on the sender’s responsibility regarding future iterations of the email list.)
Use accurate and informative subject lines on all solicitations. Any solicitation for adult material should be clearly identified in the subject line with the initial characters being "ADV:ADLT." All other solicitations should begin with "ADV:"
State of the States –Responding to increasing consumer complaints about a variety of scams, a proliferation of unwanted pornographic solicitations, and other abuses, some state legislatures began considering how to regulate Internet email marketing in a manner that would both protect the consumer and allow legitimate businesses to advertise their products. The resulting proposed and enacted statutes are chaotic; although many provide criminal penalties, most create a private right of action for damages, and several empower the state’s Attorney General to pursue a civil action for damages and injunction.
Email legislation at both the state and federal levels also shares significant similarities. Although each state has adopted a slightly different definition of spam, there are enough factors in common to present a pattern. Of the 15 states that have passed laws on spam so far, 8 have made violating one or more of the following prohibitions a criminal offense that will subject an individual or corporation to fines and possible incarceration:
- False or misleading routing or transmission information in the headers.
- Misleading or deceptive subject line.
- Use of a third party domain without permission.
- Offering to sell software primarily intended for these purposes.
Other provisions contained in state laws that may create civil liability on an individual or corporation include:
- No means of opting out or getting off of a mailing list.
- Continuing to send email after receipt of an opt out request.
- Violation of primary ISP policies.
- Failing to label UCE as "ADV:" in the subject line.
Ten of the 15 states permit individuals to sue a spammer for violation in addition to other criminal or civil penalties the state may impose. In most of theses states, recipients of spam that violates the prohibitions noted above can sue the sender for statutory damages that range from $10 per item in Delaware and other states to $500 per item in Washington state. In addition, a provider of interactive computer services (like an ISP) may sue for higher damages. In Washington state, the amount is $1,000 per item. To illustrate the significance of these provisions, in one pending case in Washington state, an ISP that received 5,800 UCEs is suing a corporation for violations of the state anti-spam law. At $1,000 each, the sender’s exposure is $5,800,000.
Most of the state statutes provide that anyone sending email solicitations to residents of their state are subject to the jurisdiction of the state courts. This is a form of law known as a long-arm statute. Anyone who tries to sell a product in a state – even if they are doing so from out of state via catalog or email solicitations – has the protection of the state laws if a buyer refuses to pay, for example, and also has the responsibility to obey state laws such as the consumer protection and anti-spam statutes. Thus, a recipient of UCE may file suit in the courts of his own state. A spammer who sends to recipients in multiple states and violates the law in one or more may find himself responding to multiple suits filed in several different state courts.
An interesting provision contained in four of the state statutes is that the sender of UCE must honor the policies of the ISP they use. For example, if a person were to use AOL to send email across the Internet, and the email violated AOL’s written and posted policies, that sender’s violation of the AOL policies would also be a violation of law in California, Iowa, Louisiana and North Carolina.
California and Tennessee have passed laws that require all UCE to be labelled as an advertisement. The subject line of email offering goods or services for sale must begin with the letters "ADV:". In California, if the solicitation is for material that can legally be viewed or possessed only by a person over 18, the subject line must begin with the letters "ADV:ADLT."
Under the long-arm provisions that grant jurisdiction over non-compliant UCE sent to state residents, it is possible that a spammer in any state who sends a solicitation to a California resident but omits the "ADV:" label may become subject to penalties in California. At the current time the courts have not shed any light on this jurisdictional question – the issue involves not only long-arm jurisdiction, but also something called "conflict of laws," where an action may fall within the statutes of more than one state. In such cases, the court is required to determine which state law to apply to the case. Conflicts analysis can become very complex.
The states that have enacted anti-spam statutes of one type or another are California, Connecticut, Delaware, Iowa, Illinois, Louisiana, Maryland, North Carolina, Nevada, Oklahoma, Rhode Island, Tennessee, Virginia, Washington State, and West Virginia.
Maine has enacted a statute establishing a commission to study the problem and make recommendations to the legislature for appropriate legislation.
Possible Federal Statutes — A wide variety of bills addressing email solicitation have been proposed in the House and Senate since 1997. While none have received the concurrence of both houses (and thus none have been presented to the President for signature) it is instructive to examine the types of concerns Congress is attempting to address for two reasons. First, it is highly likely that Congress will pass a bill on this issue, and second, two of the fifteen states that have anti-spam laws have specifically included a provision that says their law will expire if a federal statute is passed.
The federal legislation proposed to date does not contain the more stringent provisions of the state laws. In general, the federal bills do not criminalize violations and nearly all of them permit email solicitation in some form so long as the user has a meaningful way to opt out of the mailing list. Only one proposed federal statute has included a provision that UCE be labelled in the subject line, and only one has contained a provision requiring that senders of UCE honor an ISP’s policies.
The most recent submission to Congress is the Unsolicited Electronic Mail Act of 2000. If enacted, the statute would make it illegal for spammers to violate the usage policies of an ISP, would require use of valid return or Reply-to addresses and that spammers maintain and honor an opt-out list. It also requires that email solicitations be clearly marked in some standardized way, to be determined by the FTC. That bill was recently amended in committee in March, and must be introduced to the floor of the House of Representatives, then to the Senate if it passes the House. At either stage it can be sent back to committee for further revision. If it finally passes both the House and the Senate, it will be presented to the President for signature.
At the present time, it is uncertain just what effect a future federal statute would have on existing state legislation. There is some precedent in the so-called junk fax legislation however. The federal Telephone Consumer Protection Act prohibits unsolicited faxes being sent to consumers and imposes a penalty of $500 per fax sent in violation of the statute. Washington and other states have a similar statute providing a nearly identical remedy for unsolicited faxes. It is quite likely that state and federal statutes regarding UCE will coexist in the same way that the anti-fax statutes have.
Unsolved Mysteries — For the most part, none of the statutes addresses a key issue in the spam wars: most spammers don’t want to be found. They conceal their identities and return addresses for a reason. They know that it is just as easy for their victims to send them opt-out email as it is for them to send the spam in the first place. If the spammers let the victims actually have a say, the spammers will be inundated with opt-out requests and will have to do an honest day’s work trying to keep their mailing lists clear of those who have opted out.
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Obviously, hiring attorneys and private investigators can be expensive. Washington state’s law also provides that the state’s Attorney General can bring an action against a spammer. The Attorney General’s office has greater resources than the average individual to locate spammers. But the Attorney General’s office is inundated with spam complaints and is being selective about the cases they bring. That leaves unsolved the problem of how to deal with scofflaw spammers who will simply ignore federal and state law, falsify their return address and routing headers, and continue spamming.
Another problem is that of the international spammer. A person who sends spam from another country is not subject to the jurisdiction of U.S. courts unless the U.S. and that country have a treaty giving jurisdiction. Enterprises in the Bahamas and other nations without strong regulation of unfair business practices and without jurisdictional treaties with the U.S. have already been the source of problems with offshore Internet gambling sites. As the legal environment for spammers becomes less friendly in the United States, U.S. residents can expect to see more and more spam coming from outside national borders.
The issue has only begun to be discussed internationally. No other nation has the volume of Internet traffic that the U.S. does, and not all cultures encourage unrestricted capitalism as strongly the U.S. does. So it may be some time before a meaningful international solution develops.
Summing Up — In the United States, Internet accounts are becoming pervasive. Advertisers prominently display Web URLs, more and more media provide some content on the Web, and small businesses are putting up Web sites in potentially vain attempts to compete with the big boys. Individuals and business without Internet access are beginning to feel as out of touch as those without telephones.
With the commercialization of the Internet come the abuses, the hard sells, the unwanted solicitations. And with those abuses come complaints, followed closely by government regulation. That regulation is currently in fast-paced flux with states enacting a sometimes confusing welter of overlapping laws, and the federal government considering whether and how to enact federal regulation of commercial speech on the Internet.
In most respects, regulation of abuses like spam are important, necessary and generally well received. But there is another, more insidious consideration. The more we ask the government to intervene in the Internet, the more regulations we will receive. Not all of those regulations will be to our liking, and some very well may be the exact opposite of what we as consumers would like to see. We would all do well to bear in mind the warning of the sages: Be careful what you wish for.