Introduction

What is "spam"? The term spam was first used in the early 1990s to describe e-mail messages, not related to the topic of discussion and postings that swamped newsgroups. Spam is frequently described as e-mail that is sent in bulk; flooding the Internet with copies of the same message and forcing these unwanted messages on Internet users who might otherwise have chosen not to receive them.

Most spam is commercial advertising and in some ways is analogous to "junk mail" people receive through the postal system. One of the reasons that spam has achieved such infamous notoriety is that it has often been used for advertising "dubious products, get-rich-quick schemes, or quasi-legal services". Spammers target both newsgroups, by mass mailing the spam simultaneously to multiple newsgroups and individual users with direct mail messages.

Anti-spammers contend that spam is much more than just a nuisance or inconvenience to the message recipients in that it places physical as well as financial burdens on the Internet system and Internet service providers. This is because spam costs very little for the spammer to send while most of the costs, such as transmission costs and measured telephone service, are paid for by the carriers and recipients of the messages.

Does spam mean only "Specifically Persecuted Advertising Mail" or instead can it also mean "Selective Promotion Advertising Mail". Should all commercial non-solicited e-mail advertising be condemned and restricted because the authorities deem it to be spam? Will it be considered spam when a publisher does an unsolicited e-mail advertising of its new book, entitled 101 Ways To Achieve Physical Fitness After Your Heart Attack, to the e-mail addresses of people who have recently suffered a heart attack?

Federal legislation controlling spam appears to be imminent even though Congress has not as yet been successful in passing such legislation. Meanwhile, several states, including California, Virginia and Washington have enacted legislation (i) making it illegal to falsify the subject headers of messages or to use false return addresses or domain names, (ii) limiting spam by restricting that such messages may only be sent to those with whom the sender has had a prior business relationship and prohibiting these messages from being sent to anyone who has not consented to such mailings and (iii) requiring that all these messages include the term "ADV" in the subject line and that the message contain either an 800 telephone number or e-mail address for the recipient to contact if he/she wants to be removed from the mailing list.

The challenge for any new federal or state legislation is in walking that fine line between being too strict or too lenient in controlling spam and in striking a proper balance between those who do not want any laws restricting the Internet and those who believe that all illicit practices on the Internet must be banned.

Is Spam Bad or is it Free Speech?

There are many reasons why anti-spammers believe that spam mailings are "bad". These reasons include the following:

1. Spam provides a "free ride" to the spammer in that the spammer's costs are relatively small as compared to the costs to the Internet system and recipient.
2. The burden and cost placed on the recipient resulting from the increasing volume of spam messages that are received on a daily basis. Some have even conjectured that if spam volume continues to increase that it will swamp our mailboxes and make it more difficult for the recipient to identify his/her "real" mail.
3. The problems associated with removing oneself from receiving unwanted spam that have been compounded by the increase in the quantity of spam. Those opposed to spam contend that why should any recipient of spam encounter the bother and nuisance in removing their address from a mailing list.
4. Spammers are dishonest in that the spam messages they send out only advertise "stuff that's worthless, deceptive, and partly or entirely fraudulent". Furthermore, the spam message usually states that the recipient can remove his/her name on request, however, the likelihood of doing this is not very high, since the spammer frequently places a false return address on the message so that they do not incur any cost of receiving responses.
5. Spammers use without payment or misuse resources that do not belong to them. This occurs when the spam is sent through intermediate systems in order to avoid the blocks that many systems have placed against mail coming directly from a spammers' system. When this occurs the intermediate systems' networks and disks become burdened with unwanted spam that makes use of resources that the spammer has not paid for. Furthermore, it often subjects the intermediate system to complaints from recipients of the spam who have erroneously concluded that because the intermediate system delivered the spam that they did so because of a business relationship with the spammer.
6. Another technique that has been used by spammers is that of obtaining trial accounts at Internet service providers. The spammer then disregards the account's usage terms by sending spam before abandoning the account. This then forces the provider to expend time and effort to cleanup the situation and/or monitor more carefully their trial accounts.
   Particular types of spam, such as child pornography and anti-Semitism, may be illegal in the United States or foreign countries.

Even if one assumes that spam is bad, there are many countervailing issues that must be analyzed with respect to any legislation that prohibits or restricts spam. These countervailing issues include the following:

1. There are valid First Amendment concerns involved when it comes to restricting e-mail even if such an e-mail message is part of a bulk spam mailing. Civil liberties advocates say there are constitutional issues to consider that could trickle down to other types of speech over the Internet. Some argue that the legislation has to be more specific in that some of the current or proposed legislation does not truly limit itself to only "commercial e-mail".
2. Federal and state consumer protection laws already exist to protect the consumer from fraudulent and deceptive advertising. The Federal Trade Commission already has the authority to go after those who send false and deceptive e-mail messages and is currently doing so.
3. Federal and state legislation already exists as it relates to pornography and child pornography although some modification to such legislation may be required so Internet users have some protection from receiving pornographic materials via spam.

Therefore, I once again must ask. Will current or future laws deem it to be spam when a publisher advertises its new book, 101 Ways To Achieve Physical Fitness After Your Heart Attack, to e-mail addresses of people who have recently suffered a heart attack but who have not had a prior business relationship with the publisher or given the publisher permission to mail them unsolicited e-mail? Will the publisher who does such a mailing be prosecuted for e-mailing this advertisement? The answer could be yes.

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Lloyd L. Rich is an attorney practicing publishing and intellectual property law. He can be reached at 1163 Vine Street, Denver, CO 80206. Phone: (303) 388-0291; FAX: (303) 388-0477; E-Mail: rich@publishingattorney.com; Web Site: http://www.publishingattorney.com.