Ask any number of Netizens what their greatest gripe is about the Internet, and nine out of 10 would unhesitatingly reply, "Spam!" Spam clogs the web, swamps servers and annoyingly consumes untold gigabytes of storage at a not-insignificant cost. Indeed, users spend more than $10 billion annually in America fighting spam. Over 200 billion messages a day are sent over the Internet, and experts say spam presently accounts for as much as 90% of that volume, up from only five percent in 2001.

It can take an hour or more out of a normal workday to weed spam from an email inbox: According to industry studies by ISPs, such as Hotmail,159 years of collective time is lost each day simply by hitting the delete button! Spam further drains CPU resources because it fosters spyware, spambots and other invasions of computer privacy that slow down and infect PCs with malware. While spam may be an iconic tribute to high-tech innovation and globalization, at the same time it is a monumental threat to US productivity.

Legally speaking, crimes with which professional spammers could be charged include conspiracy, fraud, money laundering and transportation of obscene materials, to name the most obvious ones. In an effort to update the law to comport with current technology, Congress passed the Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003, which was signed into law by President Bush on December 16, 2003. It defined America's first national standards for the sending of commercial email and requires the Federal Trade Commission (FTC) to enforce its provisions.

The Act creates numerous benefits: It bans false or misleading header information; prohibits deceptive subject lines; requires an opt-out method for email recipients and makes it illegal to sell or transfer the email addresses of people who choose to opt out; mandates that commercial email be identified as an advertisement; requires inclusion of the sender's valid physical postal address; and provides substantial penalties - $11,000 per count - for violations. Deceptive commercial email also is subject to laws banning false or misleading advertising. Additionally, there are fines for commercial emailers who illegally "harvest" email addresses, employ "dictionary attacks" and use other deceitful ways of sending spam to people who don't want them.

However, the Act also creates some negatives. It legalizes unsolicited email, including pornographic email, so long as it complies with the language of the act; makes the opt-out provision unwieldy; regulates intrastate commerce; and no private citizens - only ISPs, state AGs and the FTC - can file suit, and only in Federal District Court. Moreover, the Act defines spam as unsolicited mail, the "primary purpose of which is the commercial advertisement or promotion of a commercial product or service." Thus, spam that claims it is not sent primarily for commercial purposes is immune to regulation under the Act.

In light of its disadvantages, the CAN-SPAM Act was initially deemed toothless by its critics, who immediately dubbed it the "YOU CAN SPAM Act." There is some truth to this characterization. According to an Internet security firm called MX Logic, compliance with CAN-SPAM has been abysmal - in 2006, it was estimated at less than one percent! Nonetheless, since its passage, legal victories under CAN-SPAM continue to grow both in number and in size. In fact, the greatest damages awarded under the CAN-SPAM act was MySpace, Inc. v. Wallace, handed down on July 3, 2007, which totaled $223,777,500 plus attorney fees.

Read the conclusion of Mr. Gingrande's column in the next issue, as he discusses the high-tech solutions to fight spam!

ARTHUR GINGRANDE [], ICP, is co-founder and partner of IMERGE Consulting, a document-centric management consulting firm. Mr. Gingrande holds a Juris Doctor degree from the Massachusetts School of Law.


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