With This Law, You Can Spam

California lawyers and law enforcement officials continued their assault on the Can-Spam Act Thursday, calling it ineffective and warning attendees at a conference on spam and the law that a solution to the spam scourge is still a distant dream.

By Amit Asaravala

http://wired.com/news/business/0,1367,62020,00.html?tw=wn_tophead_3

Signed into law by President Bush on Dec. 16, 2003, the Controlling the Assault of Non-Solicited Pornography and Marketing Act requires e-mail marketers to include legitimate return addresses and opt-out information in all e-mail messages that they send.

However, many in the technical and legal professions have questioned the federal government’s ability to enforce those restrictions and have criticized the way the act supercedes stricter state laws.

"(Can-Spam) is an abomination at the federal level," said Stanford law professor Lawrence Lessig to the more than 100 attendees at Thursday’s Spam and the Law conference. "It’s ineffective and it’s affirmatively harmful because it preempts state legislation."

In many states, preexisting antispam legislation included the rights for citizens to sue spammers directly or through class action lawsuits. Under the new federal law, U.S. citizens no longer have those rights.

In his keynote speech, California Attorney General Bill Lockyer called the limitations "disempowering" and warned that his office did not have the resources to track and prosecute spammers on its own.

When asked to elaborate, Lockyer pointed out that his office had taken a 22 percent budget cut over the past four years. Later, Lockyer asked the audience to "please help" by volunteering information about spammers.

For their part, proponents of the Can-Spam Act argue that a federal law will actually bolster state efforts to find spammers.

"The Can-Spam Act calls on a multitiered approach for enforcement, which includes the FTC, ISPs and attorney generals from each state," said Chris Fitzgerald, press secretary for Oregon Sen. Ron Wyden, in a phone interview.

Wyden, a Democrat, co-sponsored the Can-Spam Act with Sen. Conrad Burns, a Montana Republican.

"With regard to private right of action, I just don’t believe consumers have the resources to bring litigation against spammers," added Fitzgerald.

Lockyer dismissed such arguments on Thursday and suggested that limitations on private right to action were a result of Republican politics.

"It’s kind of ironic that, (with) an anti-government administration that tells us they trust citizens and want us to take our own actions, the first thing they did was enact legislation that only lets the government take action," said Lockyer.

Backers of the Can-Spam Act point out, however, that Wyden is a Democrat.

Despite painting a bleak picture of current antispam efforts, speakers at Thursday’s conference did show faith in one solution: providing bounties for spam hunters.

Under the proposed system, bounty hunters would receive rewards for tracking down spammers who violated antispam laws. Those bounty hunters could, in turn, pay private citizens to provide them with information about spammers and their whereabouts.

"A spammer needs to realize that there are 50,000 entities on the Net willing to track him down," said Lessig. "Right now there are just five entities."

While a mandate in the Can-Spam Act requires the Federal Trade Commission to investigate a similar system of bounties, a formal report outlining the commission’s recommendation on the topic is not due until September.

In the meantime, it remains unclear whether the Can-Spam Act will have — or has had — any effect on the amount of spam that continues to clog the inboxes of millions of Internet users.

Fitzgerald noted that he felt that the amount of spam in his own inbox had already decreased slightly. But that assessment seems to be an anomaly, given recent reports from AOL, EarthLink and Yahoo stating that spam levels have remained the same since Jan 1.

And even if spam levels did decrease, it would be unclear just how large a part Can-Spam played in the improvement. According to Fitzgerald, there are no standard measurements in place to gauge the effects of Can-Spam, nor are there formal targets on how much spam levels should decrease before the act’s backers consider it a success.

Given this, the message from Can-Spam proponents to Internet users seems to be "wait and see."

"Can-Spam will have an effect when we start to bring in the spam kings," said Fitzgerald. After all, "the act only went into effect this month."