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The struggle over spam

Anti-spam advocates celebrate a victory in Washington state court, but Doug Isenberg says the decision may not be the final word in a contentious debate over how to treat cyber-solicitations.

Not too long ago, I started using a cell phone that allows me to check my regular e-mail account, and it's quickly proven to be a real convenience. I can now download and reply to important messages from just about anywhere--and I've done so while walking down the street and from a New York City taxicab.

The phone is not the perfect wireless e-mail device, but I truly enjoy the convenience of carrying one small piece of electronic equipment that performs multiple tasks. The biggest disadvantage is that the phone actually dials into an Internet service provider and then downloads each e-mail message one-by-one--a sometimes time-consuming task that counts against my allotment of cell phone minutes each month.

If the only e-mails I retrieved were messages I wanted--whether personal or business--then the time spent online would not concern me so much. But like every longtime Internet user, I receive a daily deluge of spam. And now I'm actually paying to receive the spam when I use my cell phone!

In a sense, this costly annoyance proves that, even on the Internet, everything old is new again. Not long ago, as the Supreme Court of the state of Washington reiterated in an important decision on spam on June 7, many Internet users were paying per-minute charges to access the Net via dial-up accounts from their PCs.

But then along came flat-rate monthly plans (though one has to wonder whether the avalanche of spam is partly to blame for the rising cost of these plans) and high-speed broadband connections. As a result, though most of us are still annoyed by spam, it usually doesn't create a direct cost or eat up too much time. Nowadays, I've become so adept at identifying spam by the return address or subject line that I'm not sure when I last actually opened a junk e-mail message before deleting it.

Court rulings on spam
These addresses and subject lines formed the focus of the Washington court's recent ruling. In that case, the state's Supreme Court reversed a trial court's decision striking down a Washington law on spam. By finding that the law was "unduly restrictive and burdensome," the trial court ruled last year that the law violated the commerce clause of the U.S. constitution.

But now anti-spam activists have cause to celebrate--for the first time, really--because the Washington Supreme Court has upheld the law. However, although the law theoretically could reduce the amount of spam being sent, the Washington court's ruling is far from a final victory against this annoyance.

Here's why: The Washington Act, though commonly referred to in press accounts as an "anti-spam law," does not outlaw junk e-mail. Rather, the act only requires that certain "commercial electronic mail messages" sent from Washington or to state residents may not contain false information in the transmission path or misleading information in the subject line.

It's obvious that most spammers violate at least one of these requirements. In the Washington lawsuit that resulted in the recent decision, the spammer sued by the state had sent between 100,000 and 1 million e-mail messages per week, hawking the dubiously titled booklet, "How to Profit from the Internet"--a tactic that resulted in 30 to 50 sales per month. (I don't know what's more pathetic: the spammer's miserable success rate or the fact that anyone would actually respond to the messages by sending in $39.95. I guess there's a sucker going online every minute.)

In any event, while most spammers forge their message headers to avoid the incalculable number of bounced e-mails and angry replies, the free availability of Web-based e-mail accounts makes it pretty simple to use an e-mail address that is at least valid at the time the spam is distributed. The Washington court referred to this practice as using "ephemeral e-mail addresses" because the spammer knew the real accounts would quickly be shut down by the legitimate e-mail provider.

Also, who's to say what a "false" or "misleading" subject line really is? At any rate, I'm just as annoyed by those junk e-mail messages containing lewd subject lines--but apparently they're not covered by the Washington law.

Finally, it's important to note that although the Washington Supreme Court's decision is certainly a victory for anti-spam advocates, it's not necessarily the last word on this law. The spammer's attorney has strongly hinted at an appeal and, in any event, the next step in this litigation could be a trial on the merits of the case--not just the technical legal issue of whether the law violates the commerce clause.

Surely, this case will be closely watched by other states, some which have passed similar laws--including California, where the act was likewise found to be unconstitutional. And Congress again this year is seriously considering federal anti-spam legislation. The Washington case is likely to give lawmakers renewed enthusiasm for passing legislation.