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Spam Law

Only recently, Congress has taken steps to try to curb the swelling waves of spam.

Three bills are currently pending to address the spam problem, two of which are sponsored by New Jersey representatives, Sen. Robert Torricelli and Rep. Chris Smith. The bills range from banning all unsolicited bulk e-mail entirely, to requiring that bulk e-mailers label their e-mails to make them easier to spot (and delete). Smith, a Republican from Mercer County, proposed a law similar to the Telephone Consumer Protection Act enacted in 1991, which made it illegal to send unsolicited advertisements over fax lines.

Smith's proposed Netizens Protection Act mirrors the telephone act and makes it illegal to send unsolicited bulk commercial e-mail to anyone without his or her consent. (Advertisers can still send bulk e-mail to consumers who have consented to receive certain targeted advertisements.) The bill sponsored by Sen. Torricelli, a Democrat from Bergen County, New Jersey, among other things, requires that bulk e-mailers remove a recipient from their mailing lists upon the request of the recipient. Senator Frank Murkowski, R-Alaska, proposed a bill that would require bulk e-mailers to designate that the e-mail is a solicitation in its subject line, making it easier to spot and delete them.

State legislatures are taking action as well. A California state legislator has proposed a bill that would allow unsolicited e-mail recipients to sue the senders for $500 for each incident of spamming. The spammers contended that the big Internet service providers and online service providers were essentially public utilities, and any attempt to block e-mail sent over their networks violated the First Amendment. The courts have uniformly held, however, that the service providers are private actors, and the First Amendment does not restrict their actions. Therefore they are free to block unwanted e-mail. See Cyber Promotions, Inc. v. America Online Inc., 948 F. Supp. 436 (E.D. Pa 1996) and CompuServe Inc. v. Cyber Promotions, Inc. and Sanford Wallace, 962 F. Supp. 1015 (S.D. Ohio 1997).

Spam, the unsolicited bulk e-mail kind, has few fans. While granting Cyber Promotions, Inc. a preliminary injunction to prevent its Internet service provider from terminating service to the self-described "king of Spam," U.S. District Court Judge Anita Brody, in a footnote to her decision shared her personal opinion about spamming. "Under the law it is improper to consider the nature of the activities of Cyber. This includes my strong personal distaste for Cyber's business." Cyber Promotions, Inc. v. Apex Global Information Services, Inc., 1997 U.S. Dist. LEXIS 15344, n1, (E.D.Pa. September 30, 1997.

Although in the AGIS case, Cyber Promotions won the first round, AGIS was allowed to terminate Internet access to Cyber Promotions thirty days later. Cyber Promotions found itself without an Internet provider since other Internet service providers refused to grant Cyber Promotion an Internet account. Before losing its account, Cyber Promotions was sending approximately 20 million e-mails each day. Sanford Wallace (Cyber Promotion's principal and self-titled "Spam King"), following his company's loss of Internet access, formed a new company to offer spamming services. Wallace's new company, Global Technology Marketing Inc., intends to offer high-speed Internet access to companies who want to do bulk e-mailing. It is the only Internet access provider to permit bulk e-mailing. AOL has been the most proactive online service provider to take on the spammers. It's most recent victory, over Las Vegas-based Over the Air Equipment, came only a month after a Federal District Court Judge granted AOL a preliminary injunction against Over the Air Equipment. The spammer will also pay an undisclosed amount of damages which will be used to educate families about Internet safety.

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