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Spammers Forced to Tell the Truth

February 19, 2000

A Colorado legislative committee has passed a bill that would require spammers to tag unsolicited email with a special subject line. "[Senders must] use the exact characters 'ADV:' ... as the first four characters in the subject line of an unsolicited commercial electronic mail message," reads the so-called Colorado Junk Email Law, House Bill 1309.

The House Business Affairs and Labor Committee passed the bill Thursday by a vote of 10-2, strengthening the law by adding politicians and nonprofit organizations to the list of those who must use the label in their promotional email. The bill goes next to Colorado's full house for debate.

Colorado is the latest among a gaggle of states nationwide seeking to put a dent in the flood of commercial email flooding in-boxes. Internet service providers say junk email dumped onto their servers daily costs them massive amounts of money in bandwidth charges. Many email users, meanwhile, despise the unwanted messages piling up in their in-boxes.

The Colorado legislation specifies further requirements of any unsolicited messages, requiring that each email must provide a legitimate method for the recipient to "opt out" of future mailings from the sender. To prevent falsified return addresses and unapproved use of domains, the bill also requires that all email be routed legitimately from consenting Internet domains.

For commercial emailers that violate the rule, the law allows recipients and ISPs to sue for a civil penalty of $10 per illegal message.

Republican state representative Shawn Mitchell, one of the bill's sponsors, told the Denver Rocky Mountain News that his proposal doesn't outlaw unsolicited commercial email, but provided for a kind of "truth-in-packaging."

"I don't think [users] will have less garbage," Mitchell told the paper. "I think they'll have 'identified' garbage."

Spam-fighters including the Coalition Against Unsolicited Commercial Email, note that some legislation at the state level has merit, but say the Colorado bill is misguided.

CAUCE co-founder Ray Everett-Church said his organization opposed similar proposals when they appeared in California and in Congress.

"A flood of messages with "ADV" in the subject line does nothing to help consumers and service providers recover the costs created by that flood," Everett-Church said. "By the time someone sees the subject line they've already had to download that email."

The opt-out feature of the law also is unacceptable to CAUCE. Rather than having to ask every sender of email to take the recipient off their list, marketers should have to get the recipient's consent before sending the mail in the first place, he said.

David Kramer, an Internet attorney with Palo Alto, California-based Wilson Sonsini Goodrich & Rosati, wrote anti-spam legislation that California enacted in January 1999, and helped draft similar legislation in Washington State. He's also litigated against spammers, including a successful suit for online service CompuServe.

The Colorado bill is actually more damaging than no law at all, Kramer said, characterizing the its message to spammers as, "You can engage in this illegitimate practice as long as you dot your i's and cross your t's."

"That's the wrong message to send," he said. "The message to send is, 'Don't do this.'"

The Washington State and California laws represent better, if small steps in the right direction, Kramer said. The California bill enables an ISP to sue a spammer if the sender has disregarded the ISP's notice that it does not wish its customers to be spammed.

"It essentially allows ISPs to post a 'No Trespassing' sign on the front door," Kramer said. Illinois just enacted a similar measure.

The Washington state law prohibits the sending of "fraudulent" unsolicited commercial email to Washington State residents. If spammers sends fraudulent spam to customers of ISPs that have posted notice to the marketers, the recipient or the ISP can sue.

Fraudulent messages include those that falsify subjects, or include faked reply-to addresses, where the return address's Internet domain doesn't actually belong to the spammer. The subject line "re: the info you requested" is a classic example of fraudulent unsolicited email, Kramer said.

"The ultimate solution would be a federal law banning spam period, in the same way [Congress] has banned junk faxes," Kramer said. "Why we have not seen legislation yet is beyond me."

Chris Oakes, Wired News


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