Law Won’t Deter Spam, Experts Say

California’s attempt to ban all junk e-mail, signed into law by Gov. Gray Davis last week, has as little chance of actually working as the sexual enhancers and get-rich-quick schemes that clutter people’s in-boxes.

That’s the conclusion of a range of experts on the plague of electronic advertising known as spam. They say the new law, touted by state politicians as the toughest in the country, is at best a toothless, feel-good measure and at worst might spur frivolous lawsuits.

“It will have as much effect as every other anti-spam law, and that’s none,” said Steve Jillings, chief executive of FrontBridge Technologies, a Marina del Rey e-mail management firm.

The law, due to take effect Jan. 1, makes it illegal to send e-mail that advertises goods or services to California residents unless there is a previous business relationship or the recipient specifically initiated the communication.

Violators, who could be either the sender of the spam or the company whose product is being advertised, are subject to a fine of $1,000 per e-mail and as much as $1 million per marketing campaign. The law allows individuals, as well as state regulators, to file suit.

Pete Wellborn, an Atlanta attorney, said he hoped the law would prompt a rash of lawsuits. But he believes its value is largely symbolic.

“Spamming is already illegal under laws ranging from the Computer Fraud and Abuse Act down to and including state laws against trespass,” Wellborn said. “But the spammers keep spamming anyway. Do we really think making it illegal under another law will now deter them?”

In May, Wellborn won a $16-million judgment against a New York spammer. The suit was brought on behalf of EarthLink Inc., an Internet service provider that has been increasingly active against spammers.

Dave Baker, EarthLink’s vice president of public policy, also sought to damp any expectations that the new California law would make much difference in itself.

“Any anti-spam legislation is just one more front in the fight,” Baker said. “There’s no one bill, state or federal, that by itself is going to cure the spam problem.”

More than two-thirds of the states have enacted laws against spam. Virginia’s law, which took effect this summer, was previously billed as the toughest. It criminalizes the sending of fraudulent spam, allowing for the seizure of assets as well as prison terms. The Massachusetts Senate last week unanimously approved a bill that would fine spammers $500 per message -- a penalty that would rise to $750 if the recipient was more than 65 years old.

Yet for all these stern measures, state regulators hardly ever pursue spammers.

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Little Legal Follow-Up

California’s first attempt to stamp out spam is a case in point. Two laws passed in late 1998 were heralded as breakthroughs in the effort against junk e-mail.

“We have put spammers on notice that after Jan. 1, 1999, California will be a spam-free zone,” said then-Assemblyman Gary Miller (R-Diamond Bar).

Miller, who went on to be elected to the House of Representatives, sponsored a measure that recognized the right of Internet service providers to ban spam on their networks. The other measure mandated that unsolicited e-mail must be identified as “ADV” in the subject line, allowing for easier deletion.

The state launched a Web site, at https://caag.state.ca.us/spam/, to solicit examples of spam sent in violation of the laws. Tens of thousands of pieces were forwarded by computer users, so many that the mail- box became overloaded and bounced messages back to the senders. But only one lawsuit has been filed.

PW Marketing, a Los Angeles-area firm, was sued a year ago for allegedly using a false address, practicing deceptive advertising and engaging in unfair business practices. It was selling a $39 book that told people how to spam.

Paul Willis, one of the principals of the company, thumbed his nose at the government in an interview with The Times last September.

“The worst thing they can do is get a civil judgment against me,” he said. “I’m not dumb enough to keep any assets in my name.”

Willis didn’t respond to the suit by the state, which is in the process of submitting evidence to the court allowing for a final judgment in its favor.

“These are difficult cases to investigate,” Deputy Atty. Gen. Ian K. Sweedler said.

At a news conference in Sacramento last week, Kathleen Hamilton, director of the Department of Consumer Affairs, promised to enforce the new spam law.

A spokeswoman for the attorney general’s office, however, warned that regulators had “limited resources” and “many laws” to enforce. “In a perfect world, spam stops Jan. 1 because [spammers] know everyone will come after them,” spokeswoman Hallye Jordan said.

In the real world, the most that state officials will be able to do for the vast majority of the spammed is tell them how to help themselves.

“Sorry, I can’t promise you an army,” said Joanne McNabb, chief of the Office of Privacy Protection, an arm of the Department of Consumer Affairs. “We’ll prepare a self-help package to assist a consumer in using Small Claims Court.”

Many experts say this is a battle people are ill-equipped to fight alone. Spammers are adept at hiding their real identities while pelting their victims with ever-increasing numbers of solicitations.

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Spam Remains on Rise

FrontBridge, a 4-year-old firm that handles e-mail for such corporate clients as Reebok International, Metro-Goldwyn-Mayer Inc., Kyocera Corp. and Sybase Inc., says spam went from 14% of incoming messages in January 2002 to 48% in December.

Three months ago the spam level hit 62%; at the moment it’s about 67%. Other e-mail management companies report similar figures.

Spam is increasingly seen as not just a nuisance but also a threat to the health of the Internet. Members of Congress have expressed great interest in passing a federal anti-spam law, which would supersede the state measures.

Although passage of a bill this year was once considered a virtual certainty, there are so many competing measures that hopes have faded. That would give California’s law a chance to go into effect, barring any successful court challenges on either 1st Amendment or interstate commerce grounds.

Meanwhile, spammers probably will proliferate -- as will evidence that their products, no matter how spurious, are finding a ready audience.

Web site Wired News discovered in August an order log at a New Hampshire company, Amazing Internet Products, that had been inadvertently revealed on the Net. The log showed that during a four-week period, 6,000 people ordered penis-enlargement pills from the firm for $50 a bottle. The customers included numerous women, the site said.

Messages hawking such pills are spam by just about anyone’s definition. The problem with the California law, some critics believe, is that it broadens the definition beyond what is reasonable. All unsolicited commercial e-mail is banned, even single messages.

Mike Masnick runs a Web news and search service, called Techdirt, in the Bay Area community of Foster City. Although Masnick believes that spam is “a terrible problem,” he wonders whether the law could cripple the easy communication that is at the heart of the Internet.

“Three to five times a day, I receive personal e-mails from people asking me to have Techdirt link to their Web sites,” Masnick said. “These are clearly unsolicited, and they’re definitely advertising the Web site in question. Do I consider them spam? Not at all. They’re personalized, and they’re clearly meant for me.”

But under the law, he points out, such messages are illegal.

“Worse, I get to decide,” Masnick said. “So, if I’m in a bad mood, I could decide that someone’s business proposal to me is spam and sue them.”

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Improvements Sought

For reasons such as this, said Peter S. Fader, a professor of marketing at the University of Pennsylvania’s Wharton School, “the law will cause more trouble than it’s worth.”

Even fans of the law believe it could be improved in this area.

“This is by far the best legislative effort at addressing the problem of spam we have ever seen,” said David H. Kramer, an attorney with the Silicon Valley firm Wilson Sonsini Goodrich & Rosati who specializes in Internet privacy and abuse cases. “But it needs to include protections against frivolous lawsuits.”