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State Spam Laws Rarely Enforced

TECHNOLOGY

Internet: It's difficult to track down senders on the Web, and prosecutors are busy with other crimes.

April 01, 2002|DAVID COLKER | TIMES STAFF WRITER

Anyone cleaning out a bulging e-mail in box probably has wished for a law regulating spam, the unsolicited electronic messages that promise instant weight loss, overnight riches and triple-X pictures.

Twenty states, including California, have laws governing the distribution of commercial e-mail to individuals and companies. Violations can lead to fines and even jail time.

FOR THE RECORD
Los Angeles Times Tuesday April 2, 2002 Home Edition Main News Part A Page 2 A2 Desk 1 inches; 33 words Type of Material: Correction
Spam messages--A photo caption accompanying a Business story Monday about spam laws incorrectly stated that Friendfinder sent Mark Ferguson 200 messages a day. Ferguson said messages from different spammers added up to 200 a day.

But the laws almost never are enforced.

No one has been prosecuted under California's 4-year-old anti-spam law. It's the same in Delaware, which has one of the toughest laws in the country--at least on paper.

Only in the state of Washington has an attorney general filed a case.

"Anti-spam laws are, at best, a partial solution," said law professor David Sorkin of John Marshall Law School in Chicago.

His Web site, at www.spamlaws.com, posts information about spam laws and cases.

Part of the problem is that the anonymous nature of the Internet makes it difficult to track down those who send illegal messages. And few attorneys general or district attorneys are willing to spend the time and money necessary to match message to mailer, particularly when overloaded with murders, rapes and other violent crimes.

"Out of sympathy to them, I'm sure they have other things on their docket that need to be taken care of," said Tom Geller, executive director of the anti-spam SpamCon Foundation. "But if they want a case that will please the citizenry, I would urge them to raise the priority of spam prosecutions."

Spam costs consumers an estimated $8.8 billion a year worldwide just in connection costs, according to a 2001 survey by the European Commission, which initiates policies for the European Union.

Consumer complaints fueled the passage of California's 1998 spam law, which requires unsolicited commercial e-mail to begin its subject line with ADV or ADV:ADLT if the message is of a sexual nature. Filters on e-mail programs can be set to detect those characters and delete the messages before they appear in an in box.

The law, upheld last year by the state Court of Appeal, also requires that spam include a valid e-mail address or toll-free number that a recipient can use to get off a bulk e-mail list.

No law enforcement agency has taken action, however. Atty. Gen. Bill Lockyer said his office held off because district attorneys usually get the first shot at bringing cases under a new law.

But representatives of the Los Angeles County district attorney's office said they are caught in a Catch-22 when it comes to bringing criminal charges under the law as written.

"To file a case, we would need to be able to examine the logs of an Internet service provider to prove who had sent the spam," said Deputy Dist. Atty. Jonathan Fairtlough, with the department's high-tech crimes unit.

That would require a search warrant or a subpoena, neither of which can be obtained unless charges are filed, he said.

Civil cases also could be brought, but the Los Angeles County department that would initiate them--the district attorney's Consumer Protection Division--said it has not received an actionable complaint from consumers.

"Being that the Internet is a global institution, the consumer who has gotten an e-mail from somewhere in the world does not think to call the local D.A.," said Tom Papageorge, deputy district attorney in charge of the division. "The average consumer just hits delete rather than making a copy of the e-mail, filling out a complaint and getting it to the local authorities."

Lockyer said that in lieu of actions by district attorneys, his office may get involved. He has a team of lawyers studying the issue to determine whether they could successfully prosecute under the 1998 law.

"I'm hopeful it will only be a matter of weeks before we can come to some kind of conclusion," Lockyer said.

Delaware has the strongest spam law in the country, banning unsolicited commercial e-mail outright. Under the 1999 law, the only way to legally send a state resident a commercial e-mail is to have his or her permission beforehand.

"There were so many consumer complaints that we wanted the strongest law possible," said the state's attorney general, Jane Brady. But there have been no prosecutions. "I have told my staff that I'm really losing patience, but it's a very difficult process," Brady said.

The difficulty in upholding these laws is not a lack of spam. Of the billions of e-mails that arrive each month at Atlanta-based EarthLink Inc., one of the world's largest Internet service providers, as much as 25% is spam, a spokeswoman said.

The problem, Brady and other law enforcement officials say, is determining who sent an illegal spam.

Spammers started using various tactics to stay anonymous in the mid-1990s, when junk e-mail became a popular commercial ploy.

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