In response to public confusion surrounding laws spam and the US
House Commerce Committee's expected vote today on a proposed
anti-spam law, the founder of a project called Suespammers has set
out the current US legal position of spam.
The following summary is based on a press release yesterday from
Tom Geller of Suespammers, an organisation described as a “legal
resource for recovering from damages caused by e-mail
vandalism.”
Despite several attempts at legislation, there are currently no US
Federal laws that explicitly forbid the sending of unsolicited
commercial email (UCE) or unsolicited bulk email (UBE), both of
which are commonly known as spam.
The different anti-spam proposals vary in whether they follow an
“opt-in” or “opt-out” model. Opt-in laws forbid spam unless an
individual has elected to receive it. Opt-out laws require spam
recipients to proactively tell spammers to stop e-mailing them.
Polled e-mail recipients overwhelmingly favour opt-in laws;
however, most US state laws are on the opt-out model.
In the 107th Congress, three bills are being debated. In order
of introduction, they are:
- The Wireless Telephone Spam Protection Act (opt-in).
- The Unsolicited Commercial Electronic Mail Act of 2001
(opt-out). This Act protects equipment owners' rights to opt out
their resources from processing spam.
- The Anti-Spamming Act of 2001 (opt-out). This Act does not
protect equipment owners' rights to `opt out their resources from
processing spam.
In addition, 17 US states already have anti-spam laws in force.
However, these have not been widely tested in courts.
Legislation varies mostly in the following areas:
- Opt-in vs. out-out.
- Whether enhanced legal protection is given to equipment owners,
allowing them to set policies about how their property can be used
(i.e. opt out from having to process spam and bear the cost it
involves). The two main spam bills now in Congress differ in this
regard.
- Who can sue. Most laws allow both equipment owners (whose
resources are used) and end recipients to sue.
- Antiforgery provisions. Most anti-spam laws emphasise that
senders cannot falsify their identities or alter routing
information to disguise a message's origin.
- Attempts to outlaw “spamware.” These proposals would make
illegal the possession and/or use of software designed to send
spam. This uncommon clause is highly controversial, as definitions
of “spamware” have inevitably described popular programs usually
used for legal purposes.
- Content provisions. A minority of spam laws describe what sort
of content is forbidden.
- Labeling. Some laws permit unsolicited commercial e-mail if
it's labelled as such. Such laws may run afoul of provisions
barring “compelled speech.”
There have been only a few dozen cases against, possibly because
of the lack of strong anti-spam laws. Plaintiffs have thus far
relied on existing Federal and State laws to charge spammers
with:
- Unauthorised use of resources
- Forgery
- Impersonation
- Trespass
- Fraud
- Computer crime
- Trademark infringement
- Illegal telecommunications solicitation
The Suespammers
Project contains the texts of relevant laws, tactics for their
use, case records, legislation news, commentary, and an active
mailing list for discussions.
OUT-LAW.COM will soon provide an article on spam and the law,
covering the US and European positions. If you would like to
receive notification when the article appears, please e-mail
info@out-law.com.
