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Federal Anti-Spam Law Getting Mixed Reviews

Federal Anti-Spam Law Getting Mixed Reviews

‘Can-Spam’ Act Has Done Little to Deter Violators Outside the United States, According to Area Lawyers

BY CHRIS CZIBORR

Take a quick glance at the volume of spam you’re still getting each day and you’ll conclude , accurately , that a recent federal law targeting unsolicited “junk” e-mail isn’t having much of an impact.

The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, dubbed “Can-Spam,” has done little to deter violators outside the United States, according to area lawyers following the issue.

“The problem is very complex and is an international problem,” said Sharon Klein, a partner in the corporate group of Southern California law firm Stradling, Yocca, Carlson & Rauth. “It’s not just about what you can legislate in the U.S. , smart people are creating new technological solutions to get around it.”

The law, which took effect Jan. 1, levies criminal and civil penalties for tactics used by so-called “spammers,” or senders of mass junk e-mail.

The act bans deceptive subject headings and harvesting of e-mail addresses to be used for sending spam. It also requires an opt-out link in any commercial message. Penalties can be as severe as $2 million in fines and five years in jail plus damages. Under the law, the Federal Trade Commission, Internet service providers and state attorney generals can bring lawsuits against spammers.

We shouldn’t expect much from the law because legislation isn’t the answer to cracking down on spam, according to David Segal, partner at the law firm Gibson, Dunn & Crutcher LLP in Southern California.

“Spammers are very good at disguising themselves , tracking them down is a difficult and expensive task,” he said. “I’m skeptical of a legislative fix because of that.”

A better fix could be software that filters spam, Segal said. But spammers are learning to get around filters, which sometimes block wanted e-mail as well.

“It’s an evolving process on both sides but I would expect that most spam in its current incarnations will be reduced using technological means within a year or two,” Segal said.

Rep. Chris Cox, a Republican from Southern California, said Can-Spam is doing what it set out to do with some successes so far. Cox’s energy committee and telecommunications subcommittee passed the law.

Not a Comprehensive Solution

“The act was never expected to be a comprehensive solution to the problem of spam , it targets the very worst offenders and it operates only in the U.S.,” Cox said.

Cox pointed to a couple of early efforts. In one, the Federal Trade Commission has brought a criminal complaint against Detroit e-mailer Phoenix Avatar LLC. And, despite the difficulty in going after overseas spammers, the commission has managed to lodge a complaint against Global Web Promotions Pty Ltd., which operates out of Australia and New Zealand, he said.

The law also authorizes private civil suits, allowing for injunctions and damages. Time Warner Inc.’s America Online Inc., EarthLink Inc., Yahoo! Inc. and Microsoft Corp. have filed suits against hundreds of spammers in the federal courts in California and other states.

Cox said he sees a role for technology.

“Spammers, because they are intentional lawbreakers, intentionally will stay one step ahead of the law,” Cox said. “But they may not be able to stay one step ahead of technology.”

More legislation may not be the answer, according to Cox.

“Additional laws could help, but we have to be careful not to over-regulate the Internet , right now we’re in the very early stages of reviewing the results of the Can-Spam act,” he said. “We don’t want to restrict the ability of individuals to communicate with one another and we don’t want to raise the costs of (legitimate) small businesses setting up their own sites.”

Spammers Not Intimidated

One additional piece of legislation Cox said he would like to see is a law targeting unsolicited pornography.

The Federal Trade Commission has come out with regulations requiring all pornographic e-mail to contain a header stating it contains sexually explicit content. The body of the e-mail can contain only a link to a Web site.

The spam industry doesn’t seem to be intimidated by the law and enforcement efforts, according to Kent Clayton, a partner in the corporate and security section at the law firm Rutan & Tucker LLP.

Recent enforcement efforts “are meant to be large examples to the spamming community, but so far the spamming community has not been intimidated,” he said.

If the Federal Trade Commission prevails in its suits against Phoenix Avatar and Global Web Promotions, “it could go a long way in discouraging spammers,” Clayton said.

“But the answer is probably going to be more in terms of what Internet service providers are doing with spam blocking software,” he said.

Chris Cziborr writes for the Orange County Business Journal.

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