Laws against spam called too timid to stop rising trend

NEW YORK -- Ellen Spertus was outraged when Kozmo. com still sent her e-mail after she declined such pitches. So she sued the online retailer under California's 1998 anti-spam law.

Spertus is among a handful of individuals who have chosen to fight unsolicited e-mail in court. They've had mixed success so far in what many consider only the early skirmishes of a war on spam.

Junk e-mail is a growing and costly nuisance, clogging e-mail systems with promises to lose weight, make money or see people naked.

Since the mid-1990s, Internet service providers like America Online and EarthLink have won millions of dollars in settlements and judgments against purveyors of spam under trespass, computer fraud and other laws.

Nineteen states have passed spam-specific laws. The statutes prohibit false messages or headers, require labels in subject lines or the option of declining a marketer's future mailings.

Although the laws don't ban unsolicited e-mail outright, frustrated recipients can often find a violation or two when hitting the delete button isn't emotionally satisfying.

"Once in a while something comes across that you have to take a stand on," said Spertus, a computer science professor at Mills College in Oakland, Calif.

Spertus ultimately won $77.50 in small-claims court but collected only $4.26 when Kozmo went out of business. Not quite a sweeping victory considering she paid $27.50 in court fees.

But she considers it a moral victory.

Martin Palmer, a consultant in Bellevue, Wash., netted $20,000 after expenses from 42 cases under his state's law.

Still, Palmer is not ready to quit his day job. He's spent countless hours tracking down spammers and hired collection agencies to extract judgments.

Some never collect. A judge awarded about $150,000 to four staff members at the Web site TidBits, but they never got a dime.

Jason Catlett, president of the anti-spam Junkbusters Corp., likens these lawsuits to "mopping up an oil spill with a toothbrush." Spam is on the rise despite the laws. Spam filtering company Brightmail identified nearly 2 million spam attacks in December, a 16-fold increase from two years earlier.

David Sorkin, a professor at The John Marshall Law School in Chicago, considers state laws weak.

Only Delaware requires permission before sending commercial bulk e-mail, but he knows of no cases filed there.

Bills pending in Congress aren't any stronger, and the chief proposal under consideration was weakened by House committees to the point that anti-spam advocates now oppose it.

By contrast, European Union governments are pushing to require prior permission for such e-mail.

Labeling content

U.S. businesses generally oppose restrictions, equating advertising with free speech.

"If you ban me from this type of medium, you have severely limited my ability to enter into the marketplace," said Jerry Cerasale of the Direct Marketing Association.

Labeling requirements also pose a problem, he said. Courts have generally interpreted free speech to include a right to remain silent.

At the state level, critics raise concerns about conflicts.

Subject lines for e-mail promoting adult sites must contain "ADV:ADLT" for California recipients, "ADV-ADULT" for Pennsylvanians and "ADULT ADVERTISEMENT" when sent to Wisconsin.

Other approaches to spam exist in Colorado, Connecticut, Delaware, Idaho, Illinois, Iowa, Louisiana, Missouri, Nevada, North Carolina, Oklahoma, Rhode Island, Tennessee, Virginia, Washington and West Virginia.

A California appeals court upheld that state's law this month, saying it did not unconstitutionally interfere with interstate commerce. In October, the U.S. Supreme Court refused to consider a similar challenge to Washington's anti-spam law.

But further challenges are expected as more states enact laws and more lawsuits cite them.

Meanwhile, individuals continue to test the waters, developing techniques for tracking down defendants and convincing judges.

Bennett Haselton, who recently won four judgments of $500 each in Washington state, plans to write a "how-to" guide.

"If enough people ... get in the habit of taking legal action if they get spammed, then it's going to become so expensive that spammers have to get out of business," Haselton said.

Junk fax law

State spam laws are partly modeled on a 1991 federal junk fax law that calls for $500 fines against marketers who fax ads without permission. They have stopped most casual faxers, but larger ones simply write off fines as a business cost.

America Online spokesman Nicholas Graham said laws won't stop spam completely, but should be useful against the worst offenders. Stronger measures will continually be needed as spammers change tactics to circumvent the laws, he said.

Nor will laws replace spam-control technology, such as mail filters, said Dave Baker, a vice president at EarthLink. But the laws, he said, "can provide additional tools and more weapons in the arsenal."