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Proposed anti-spam law faces legislative, legal, and practical obstacles

October 28, 2002
By: Jason McLure
State Capital Bureau

JEFFERSON CITY - Gorgeous singles are waiting to meet you. Get out of debt fast. Lose weight without diet or exercise.

Spam e-mail promises the receiver a world of easy answers to complex problems. It also chokes the Internet with unwanted and despised communications, slowing computer systems and wasting the disk space and time of recipients.

That could change in Missouri. A proposal introduced by Attorney General Jay Nixon and Rep. Chuck Graham, D-Columbia, last week would be the most stringent regulation on spam in the country to date.

But experts say that even if the legislature does pass the bill, the state will face an uphill battle not only in investigating and prosecuting spammers, but in fending off legal challenges as well.

Nixon and Graham's proposal would create a no-spam list similar to the state's no-call list for telemarketers. If passed, Missourians would be able to register their e-mail address with the Attorney General's office. If spammers don't remove registered addresses from their lists, they will be subject to fines.

Graham said he hopes the Attorney General's consumer protection division will be able to tackle spam without taking on much extra staff.

"The Attorney General's office has been able to successfully track down people in Nigeria and bring them to justice," he said. "We're not going to reinvent the wheel on enforcement."

But Allen Rueter, director of computer technology at Washington University's School of Engineering, said tracking spammers can be a difficult task even for computer specialists. Rueter said that while most legitimate marketing companies send spam from a single address, more disreputable marketers, such as those advertising pyramid schemes and pornographic websites, cloak their origin by electronically invading someone else's computer and relaying spam through their unsuspecting host.

"They'll have to be careful on how they word the legislation," he said. "I can already think of hypothetical situations where they can convict an innocent person."

Rueter said the electronic trail left by spammers often goes cold if they have invaded a number of computers in succession. Tracking spammers is much more complex than tracking telemarketers, and even if the bill passes and the Attorney General's office begins tracking spammers, Missourians shouldn't expect an end to spam.

"It is technologically feasible [to catch spammers]," Rueter said. "But they'll have mixed results with it."

Gordon Springer, a professor of computer science at MU, agrees.

"It's a moving target all the time," he said. "You find one way to stop the abuse and people move to the next step."

Still, Springer thinks bringing the weight of government to bear on the issue may be the only way halt the problem.

LEGAL CHALLENGES

Former Supreme Court Justice Potter Stewart famously quipped about defining pornography: "I know it when I see it." Defining what constitutes spam may be just as difficult.

Is it only bulk messages trying to sell you something? Does it include bulk messages delivering political or religious messages? What about companies from which you have previously purchased something, are they justified in sending you unsolicited advertisements? Is spam speech protected by the First Amendment?

Graham said his proposed legislation only will cover commercial messages, and that he will do his best to prevent it from being riddled with loopholes for certain industries.

"Commercial speech is the least protected speech," he said. "There is not a Constitutional right to annoy people. They've upheld [legal] challenges to the no-call list and I think we'll be successful in upholding this."

But F. Scott Kief, a law professor at Washington University, said regulating spam presents a number of difficult issues regarding free speech. He said one legal tactic in upholding spam regulations is to argue that spammers are trespassing on your computer.

"[Spammers] use of my computer system is not only interfering with my ability to use my computer, but converting it for [their] own use as well," he said.

Kief said this could be the foundation of a legal defense to challenges on free-speech grounds.

"People have tried to make this argument about cell phones as well since the receiver often has to pay for air time to receive telemarketer calls," he said, adding that the difficulty will be in proving that the cost to the recipient of receiving spam outweighs the spammers right to speech.

Kief also said that it's not clear whether spam regulation should fall to individual states or to the federal government. If spam from overseas or another state is considered interstate commerce, it should be regulated by the federal government. He added that since the federal government already regulates telecommunications, and to a certain extent, the Internet, Missouri could be overstepping its legal bounds.

Unfortunately for fed up e-mailers, the federal government hasn't passed anti-spam measures nearly as strong as Nixon and Graham's proposals.

This leaves the U.S. lagging behind the E.U. and Japan, who have already enacted tough new anti-spam laws, in keeping its information highway plowed of unsolicited junk mail.

Yet despite the larger legal questions, Graham insists that he will press on with the legislation.

"I'm not going to wait on the feds," he said. "They should have done something about prescription drugs too. They didn't. That's why we had to pass our own legislation."