Spammers, Keep Out

SAN FRANCISCO (06/05/2000) - Steven Fox slept in on May 26, but not because he was taking it easy. The night before, he had worked into the wee hours trying to save his company, Albuquerque, N.M., Internet service provider Associated Information Services.

The small ISP serves about 2,000 clients. For about two weeks in May, bulk e-mailers had flooded Fox's servers with spam - a torrent that ranged from 400,000 to 2 million pieces of junk e-mail a day, paralyzing the ISP's servers.

Fox's clients, by contrast, average a combined 4,000 messages per day. "We're being spam-bombed," complains Jo Fox, co-owner of the ISP and Steven's wife.

"It's like somebody has a vendetta against us and is trying to put us out of business." Associated's troubles are no isolated incident. Spurred by frustrated consumers and business owners, a bipartisan group of Washington lawmakers is taking aim at the problem.

Despite the opposition of some free-speech advocates, the legislation is creeping closer to the House floor. The antispammers want immediate help, fearing a huge volume of unwanted junk e-mail in the coming months. Jupiter Communications predicts spending on commercial e-mail will balloon to $7.3 billion in 2005 from $164 million in 1999. In 1999, the average consumer received 40 pieces of spam. By 2005, Jupiter estimates, the total is likely to soar to 1,600.

America Online estimates that spam already accounts for more than 30 percent of e-mail to its members - as many as 24 million messages a day. "As consumers or parents, we have no rights in making it stop," says Rep. Heather Wilson, a Republican who represents the Foxes' congressional district in New Mexico. But she's spearheading legislation to change that. Unlike old-fashioned junk mail, no law allows consumers to stop spam once it starts - and spam is difficult to prevent. With junk snail mail, you can ask the post office not to deliver it, or request the Direct Marketing Association to take you off of all mailing lists.

Postal junk mail doesn't stop the arrival of bills or letters from your mom, but excessive spam can bring down e-mail systems. It's a problem particularly in rural areas where mom-and-pop ISPs offer the only affordable Net access.

"There are times when [clients] can't connect at all," says Steven Fox. "Their e-mail is delayed. It affects everything we do." Wilson's bill would allow consumers and ISPs to sue spammers for sending unsolicited commercial e-mail.

Shifting costs to the people sending the unwanted e-mail and away from the small ISPs is a necessary deterrent to fight the problem, says Ray Everett-Church, cofounder and counsel of the Coalition Against Unsolicited Commercial E-mail, which claims more than 10,000 members.

"In virtually no other advertising medium does the advertiser get to force the recipient to bear more costs than they do," Everett-Church says. "In the world of junk e-mail marketing, it costs no more to send the first e-mail than it does to send the 10 millionth." Under Wilson's bill, each consumer could sue a spammer as much as $50,000, while ISPs could sue violators $1 per e-mail and up to $50,000 per day. Before reaching the floor of Congress, antispam legislation needs to get through the House Commerce Committee, now chaired by Rep. Thomas J. Bliley Jr. The Virginia Republican, who is retiring next year, has been wary of Internet regulation of any kind. "Consensus has not yet formed on how to address the problem," Bliley said in a March committee hearing.

Wilson's staff has worked with Bliley's staff and groups like the American Civil Liberties Union that oppose any restrictions on commercial e-mail. That work has paid off: Bliley says the committee is close to sending an antispam bill to the House floor. The primary stumbling block now involves constitutional issues. Already, a handful of state antispam laws have been struck down by the courts, either for improperly restricting free speech or for trying to regulate interstate commerce, an area that is specifically governed by federal law. A similar set of issues arose a decade ago with junk faxes. A 1991 federal law barred companies from using automatic dialing devices for telemarketing or to send unsolicited faxes. That law has served as a model for Wilson's proposal - but free-speech advocates insist e-mail must be treated differently.

"The telephone is much more intrusive," says Deirdre Mulligan, staff counsel at the Center for Democracy and Technology in Washington. "It rings and it disturbs you. When you look at spam, it doesn't have quite the intimacy of the phone. It doesn't interfere with getting other e-mail." To respond to those issues, Wilson has crafted a proposal focused on allowing consumers and ISPs to recoup lost costs and damages, while letting ISPs set spamming policies.

Wilson's proposal also addresses a key problem: Most spam doesn't provide an authentic e-mail address to which to respond. Her proposal would require spammers to provide a valid return e-mail address.

And once consumers requested removal from an e-mail list, it would be illegal to continue sending them e-mail. Providing false routing information designed to mislead people about the origin of a message would also be illegal. Though antispam legislation would no doubt enjoy popular support among Internet users, the ACLU thinks all the talk about antispam laws is a bad idea. "It's relatively simple to click and delete," says Marvin Johnson, a legislative counsel for the ACLU. He sees a need to ensure the ability to send e-mail anonymously.

"There is case law that says there has to be some protection for anonymity, even if it is commercial speech," Johnson says. Under pressure from the ACLU and the Direct Marketing Association, Wilson has already backed down from one of her original goals: requiring spam to be identified as spam, which could have allowed ISPs and consumers to filter it out. "Standardized labeling is compelled speech," Johnson says. "The First Amendment gives you the right to say things and to not say things." Wilson and her supporters have also given in on restricting spam for porn sites. The compromises, however, have won the legislation some key supporters, particularly in the Senate. "Spam ... is costly, destructive and an invasion of our privacy," says Sen. Joseph Lieberman, a Connecticut Democrat who is one of several Senate sponsors of antispam legislation.

"Our objective is not to strangle the Internet with government regulation or to ban spam outright. Rather, we simply set out to give individuals control of their own e-mail accounts and to address the cost-shifting problems wrought by the proliferation of spam." Any legislative approach to the spam problem could be too late for the Foxes and their Internet service provider. From November to April, spam traffic on their servers doubled every six to eight weeks. "I think something has to be done because we've hit the limit of the technical solutions," Steve Fox says. "I don't know if legislation is going to do much.

But I hope, if anything, it a has a chilling impact on the big [spammers]," he adds. "I hope it will force the big spammer to at least change to less invasive techniques ... like targeting individual users, rather than shot-gunning."

(Adam S. Marlin (amarlin@alta writes for the CQ Daily Monitor, a publication of Congressional Quarterly.)

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