Despite Foes, Spam Thrives

Despite a lot of noisy consumer opposition to the junk e-mail unlovingly known as “spam,” the practice of flooding in-boxes with unwanted marketing ploys continues unabated. In fact, even though there are now some state laws closely regulating spamming, the practice of sending mass unsolicited e-mails has acquired a sheen of respectability, and in some quarters is enthusiastically referred to as “sending an e-mail blitz.”

Lawmakers Slow To Act

While a committee vote last month approving the Unsolicited Electronic Email Act was positive news for anti-spam activists, several attempts by the U.S. Congress to enact an anti-spam law have failed. Industry observers say that a strong lobbying effort by the Direct Marketing Association is the primary reason why federal legislation has yet to pass.

If passed, the Unsolicited Electronic Email Act will require e-marketers to include valid reply addresses on unsolicited e-mails and to stop spamming particular users on request. The bill also prohibits falsifying e-mail routing information. The legislation “weeds out fraudulent spam” and relieves consumers of the burden of deleting unwanted e-mail, according to congressman Gene Green (D-Texas).

No Satisfaction for Consumer Advocates

Anti-spam activists complain that consumers spend vast amounts of time and money sifting through messages to determine which are unsolicited, and ISPs have to deal with bulk e-mails to multiple recipients, which can tie up network bandwidth and monopolize staff resources.

Although activists running the Spam Recycling Center (SRC) are pleased that federal legislators have made a serious effort to pass an anti-spam bill, they do not support the current bill because it lacks a private right of action for consumers.

Earlier proposed laws would have allowed consumers to bring spam cases directly to court. The loophole in the current bill “leaves those who are most deeply affected by spam without any redress or hope of recompense for the time and money lost,” according to SRC.

Legal and Technical Difficulties

Due to free speech constraints, legislators have been looking for a way to give recipients greater power to opt out of receiving spam, instead of imposing a complete ban.

U.S. Rep. Heather Wilson (R-New Mexico), who introduced a bill on unsolicited e-mail last year, said “Americans have a right to stand on the electronic town square on a soap box and speak, but no American can be forced to listen if they don’t want to. This is particularly true when that ‘speech’ invades the ‘castle’ of one’s home,” she said.

While waiting for Congress to pass a law of any dimension, spam adversaries have also faced technical difficulties. Recent studies indicate that anti-spam software programs and the anti-spam practices of ISPs only reduce junk mail by a fraction.

Losing Battle in Court

Although some U.S. states have adopted anti-spam laws, the courts have not been receptive. In March, a Superior Court in Washington ruled that the state’s tough anti-spamming law violated the interstate commerce clause of the U.S. Constitution.

The Washington law, one of the toughest in the United States, banned commercial e-mail with misleading information in the subject line, an invalid address, or a disguised transmission path. Fines for violating the law range from $100 to $1,000 (US$) per e-mail.

Other states have adopted or are considering legislation that would require an “Adult” tag in the subject line of unsolicited sexually oriented e-mail. Those laws are facing challenges to their validity based on the U.S. constitutional guarantee of free speech.

However, consumer advocates are critical of the labeling laws because they believe that labeling requirements only add to the growing legitimacy of spam.

Ian Oxman, president of ChooseYourMail.com has questioned the Washington court ruling. “The judge ruled that it was burdensome for the spammer to comply. I don’t understand why it’s better to place that burden on the consumer or the ISP,” Oxman said.

Lobby Hangs Tough

The Direct Marketing Association has said it is not opposed to legislation limiting the use of spam, but the organization believes that the Internet community is capable of policing itself.

Jerry Cerasale, DMA’s senior vice president of government affairs, told a U.S. House Telecommunications subcommittee meeting that “The current efforts of industry and innovations in technology render any immediate legislation unnecessary.”

All the huffing and puffing over the issue has left spam strangely untouched. Rather than being shunned as an illegal, customer-unfriendly tactic, sending bulk unsolicited e-mail is now ingrained in the Internet culture as an acceptable marketing strategy. Unfortunately, it appears likely that e-mail spam will have at least as long a shelf life as the canned variety.