eSN Analysis: State laws unlikely to stop spam

California schools and other recipients of unsolicited bulk eMails in the Golden State would be able to sue spammers for up to $1,000 per message under a bill signed in September by former Gov. Gray Davis. But experts say this latest anti-spam law and similar measures across the country stand little chance of reducing the number of junk messages clogging eMail in-boxes.

Even if the California law, scheduled to take effect Jan. 1, passes expected court challenges, it’s still unlikely to stem the flow of spam, according to legal and eMail experts.

“There are 36 states with active anti-spam legislation today, and the spam problem has not gone away,” said Scott Petry, vice president of products and engineering at the spam-blocking company Postini Inc.

According to Ferris Research, spam will cost U.S. organizations more than $10 billion this year in lost productivity and additional equipment, manpower, and software.

For schools that provide students with eMail accounts, the problem is particularly serious, because much of spam is offensive or pornographic in nature.

More than 80 percent of school-age children receive lewd, inappropriate, or potentially dangerous spam on a daily basis, according to a recent survey by internet security firm Symantec Corp. The survey underscores the need for parents, educators, and policy makers to find new ways to combat spam, which is a growing problem for all internet users.

California’s law would let internet service providers, the state’s attorney general, and spam recipients sue advertisers and spam senders who use misleading information in an eMail subject line, invalid reply addresses, or disguised paths of transmission. The limit for civil judgments against spammers is $1,000 per message or $1 million per incident.

Companies can send bulk messages only if recipients have given their permission, or if there’s an existing business relationship. In that case, the law requires that consumers must be able to opt out of future messages.

“California is sending a clear message to internet spammers: We will not allow you to litter the information superhighway with eMail trash,” the former governor said.

But even though individuals could sue, experts say it would be a mistake for spam victims to count on such a windfall.

The problem is that the internet crosses state and national boundaries. Extradition from another state is unlikely in a civil case.

“If the spammer is offshore, how are we going to enforce that?” said Marten Nelson, director of business analysis and strategy at CipherTrust Inc., another anti-spam company. “Are we going to start chasing spammers around the world? I doubt it.”

Besides, the average eMail user isn’t likely to have the resources to investigate. And the state attorney general probably has more important crimes to worry about.

“We could have thousands or hundreds of thousands of spam police trying to go after spammers,” Nelson said. “The reality is that very few spammers will be caught, and it will end with big lawsuit costs.”

Some argue California’s law is far from the nation’s toughest. Virginia, for instance, recently enacted a law that includes prison sentences and asset forfeiture for spammers.

“We would much rather see other states pursue the Virginia course rather than the California course because we think criminal penalties … are going to have the best effect as far as deterring spammers,” said America Online spokesman Nicholas Graham.

Some question whether states should be battling spam at all.

“I don’t believe they have the power,” said Brad Templeton, chairman of the Electronic Frontier Foundation and an expert on eMail issues. “Forget if you love or hate the law, it requires you to know in advance what state the person you are mailing is in, to learn the laws of that state … and obey them.”

Congress also is considering anti-spam measures, though it’s doubtful they’ll be able to reach spammers outside the U.S.

Still, many eMail users believe legislation is the answer. In a recent straw poll taken on the eSchool News web site, nearly two-thirds of readers–64 percent–said lawmakers should enact tough anti-spam measures to combat the problem.

A more effective solution is likely to involve a combination of laws, technological changes to the internet, and enforcement of policies, experts say. The Anti-Spam Research Group, a part of the Internet Engineering Task Force, is studying possible technological changes.

See these related links:

Electronic Frontier Foundation

Anti-Spam Research Group

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