Millions of Americans begin their work day clearing their
inboxes of e-mail spam, the contents of which range from mildly
annoying to frighteningly obscene. More of the same e-mail spam
awaits millions of workers, schoolchildren, and families on their
home computers. Advertisements for miracle weight-loss supplements,
porn, Nigerian prince treasure schemes, more porn, fake
lottery-winning notices, and sexual enhancement products max out
e-mail inboxes and user patience.
E-mail spam is a continuing source of frustration and complaints
about the Internet. It bogs down networks and slows down user
connection speeds. Spam is also a tool of identity thieves and
scammers, and makes for a handy dispenser of computer viruses.
To fight e-mail spam we have the CAN-SPAM Act, an
ironically-named piece of legislation passed by Congress in 2003.
It prohibits unsolicited commercial e-mail containing materially
false heading information about the subject and sender of the
message. Federal and state agencies, state attorneys general, and
Internet Service Providers can to take spammers to court. Violators
of CAN-SPAM face civil fines or even jail. Many state anti-spam
laws similarly empower state attorneys general or ISPs to go after
spammers.
There have been some high profile prosecutions for illegal
spamming. Robert Soloway, known as the “King of Spam,” was
successfully sued in 2005 by Microsoft for $7.8 million and later
in the same year by an Oklahoma ISP for over $10 million.
Soloway was able to hide his assets and never paid the verdicts
against him, and even mocked them. Bad idea. Federal prosecutors
caught up with him and in March of 2008 he pled guilty to mail
fraud and tax evasion. Soloway is now facing a possible 26 year
prison sentence and over $600,000 in fines.
In Virginia, Jeremy Jaynes earned the distinction of being the
first spammer convicted under state law. Once considered the
world’s eighth worst spammer, he is now serving a nine-year
sentence. Prosecutors estimated that Jaynes may have earned as much
as $750,000 per month from his “work-at-home” spam schemes.
But despite some of these notable prosecutions, enforcement of
anti-spam laws has been relatively light. The electron army of
e-mail spam continues to charge ahead, seemingly unabated. The
money is just too good.
BUT INCENTIVES ALSO exist for keeping spam out. ISPs continue to
devise their own solutions to alleviate the Internet traffic spam
jam through network management technologies and other practices.
Competition among ISPs has driven much of this innovation. It is
they, after all, who have the greatest economic incentive to ensure
that their customers are able to send and receive specific e-mails,
shielded from spam.
To the average person spam is spam. It is all unwanted, and the
spam filters most ISPs use are programmed to block everything that
the average person might consider spam. However, federal and (most)
state anti-spam laws define spam in much narrower terms due in part
to freedom of speech concerns. Certainly, fraudulent e-mails meant
to deceive or rob unsuspecting internet users should be illegal.
But the First Amendment protects legitimate solicitations from
government censorship, however unwelcome they may be.
Keeping these same constitutional concerns in mind, can ISPs
legally block everyday spam, or must they be limited to filtering
only “official” or fraudulent spam? In 2005, e360Insight, an online
marketing company that sends e-mail solicitations and ads to
millions of e-mail users, sued Comcast for blocking its services.
e360Insight claimed Comcast violated federal and state computer and
consumer laws, as well as the First Amendment.
In March of this year, the case of e360Insight v.
Comcast was decided in an Illinois federal court. Citing the
“Good Samaritan” provision of the federal Communications Decency
Act, U.S. District Court Judge B. Zagel ruled against
e360Insight.
The “Good Samaritan” provision protects ISPs from legal
liability for good faith actions “to restrict access to or
availability of material that the provider or user considers to be
obscene, lewd, lascivious, filthy, excessively violent, harassing,
or otherwise objectionable, whether or not such material is
constitutionally protected.” Judge Zagel found no conflict between
this provision and the narrow definition of e-mail spam found in
federal law.
According to Judge Zagel, Congress decreed that “compliance with
CAN-SPAM…does not evict the right of the provider to make its own
good faith judgment to block mailings.” ISPs need not confine their
anti-spam detection and filtering operations to the e-mail defined
and prohibited by CAN-SPAM. Even mistaken ISP efforts to block
e-mail spam are permissible when made in good faith. Moreover,
Judge Zagel noted that the First Amendment only limits the powers
of government to control speech.
Anti-spam laws are necessary, but the law’s prohibition of
certain commercial e-mail spam only addresses a part of the
problem, and prosecutions are oriented more toward punishment than
deterrence. Continued strategic and technological innovations by
ISPs for detecting and filtering spam are crucial to curbing the
volume of unwanted e-mail that courses through the internet if we
don’t want e-mail spam to reach biblical plague proportions.
Fortunately, Congress and the court got it right in conferring
the law’s blessings upon these Good Samaritans of spam
fighting.
