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Monday, August 30, 1999
Copyright © Las Vegas Review-Journal
Anti-spam law may be impossible to enforce
Some say efforts to end nuisance e-mails are futile and violate the right of advertisers to free speech.
By Ed Vogel
Donrey Capital Bureau
CARSON CITY -- Six-time Majority Leader Bill Raggio is the maximum leader of the state Senate and one of the state's most powerful politicians. But even with such lofty credentials, he authored what may be the most unenforceable law passed by the Legislature.
Next time you turn on your computer and see e-mail messages inviting you to take a look at pictures of fornicating teen-agers or a chance to invest in a foolproof scheme to win $1 million, remember, Raggio is there to help.
He pushed a bill through the 1997 Legislature making it illegal to send unsolicited e-mail advertisements to Nevadans.
Raggio concocted a law that allows Nevadans to go out and hire a lawyer whose job will be to find who sent the nasty e-mail and to sue that person, even if the message may have originated in Finland. Just haul the culprit to court and collect $10 in damages for each message, along with attorney fees.
Of course, organizations pushing to end nuisance e-mail advertising say no one has ever tried such an exercise in futility. Raggio's law -- the first in the United States to attempt to regulate e-mail advertising -- was greeted with virtual howls of laughter from the Internet community.
"The law is worse than if there was no legislation whatsoever," said Palo Alto, Calif., lawyer David H. Kramer, who initially backed the bill. "It legitimizes the practice."
One user group pointed out the law does not actually require the senders to remove the offending advertisements even after computer users say they don't want it. Another said Nevada's law had been amended so drastically by lobbyists for advertising companies that it lacked any real consumer protection.
"As usual whoever wrote the law has no idea about the media," said Lance Rose, author of a legal guide for online service providers.
Jason Catlett, president of Junkbusters Corp., is more diplomatic about the Nevada law.
"The fact they didn't get it immediately right is no disgrace," said Catlett whose company campaigns against unsolicited e-mail advertising. "Nevada was the pioneer."
But its small size in the scheme of things meant many advertisers had no idea Nevada even had an anti-spam law. Spam is the term used to describe junk mail that comes via computer.
Even Catlett admits he was not familiar with the Nevada law. But he believes a law passed in California last year has a real chance of stopping the nuisance advertising.
The California law allows Internet Service Providers like America Online to sue advertisers that send out unsolicited e-mail advertising. The spammers can be fined up to $25,000 per day for the e-mail advertising messages they send. Washington and Virginia also have passed anti-spam laws.
Because AOL has about 18 million subscribers, its chances of influencing an advertiser to stop sending out smut are somewhat better than a single computer user in Round Mountain.
"There is hope when a huge state like California makes it rough on spammers," Catlett said. "Spammers are put in a difficult position if a larger state goes after them."
He said Assemblyman Gary Miller, who drew up the California law, since has been elected to Congress. Miller introduced a similar bill earlier this year in the House of Representatives.
Raggio said he is eager to amend his law if it means bringing an end to unwanted advertising messages.
"I am willing to look at any improvement," he said. "Anyone who has a computer is frustrated at the amount of that stuff that comes across their screens. It is truly a nuisance."
But even AOL has found it difficult to stop spam, particularly because advertisers say they have a First Amendment right to send out advertising messages.
Richard Siegel, with the American Civil Liberties Union in Reno, said his organization opposes all efforts to restrain commercial speech, as well as other speech.
"We have been very successful in protecting commercial speech, from billboards to leafletting to success in keeping the Internet open," said Siegel, whose organization opposed Raggio's bill.
As a result, he sees not only the Nevada law, but laws in California and other states as a restraint on free speech that would be vigorously opposed by the ACLU.
Raggio, who says he has to "X out about eight messages" before he finds a legitimate e-mail, introduced the anti-spam bill as a follow-up to his 1995 law that makes it illegal to send an unsolicited advertising message by facsimile machine. The fax machine had become the rage about that time and he and others were upset paying for the paper on which they received unwanted advertising.
"So now instead of sending these messages by fax, they are doing it by e-mail," Raggio said. "We can't seem to win. We didn't have much to go with when we proposed these laws. I really didn't have a lot of experience."
Las Vegas legislative lobbyist Robert Ostrovsky backed Raggio's bill in 1997 after initially opposing it. Ostrovsky represented Direct Mail Marketing, an association of companies that sends out all types of advertising, including via e-mail and fax.
"Spam is a problem," Ostrovsky said. "No one knew how to control it at the time. Once you get on a list, you are fair game."
Catlett said companies that send out pornographic e-mail solicitations usually hide where the messages originate. You cannot e-mail them back that you do not want to receive such advertising because they leave bogus e-mail return addresses.
People find themselves on spammers' mailings list through a number of innocent ways, according to Catlett. If they log on to any chat room or post a message to a USENET group, their e-mail address ends up on a list somewhere.
In addition, he said many businesses provide an online directory showing each employee's e-mail address. Advertisers gobble up such directories and send e-mail messages to each employee.
"We get a lot of complaints," Catlett said. "What do you tell a mother whose 10-year-old daughter gets porno spam? Some of it is totally disgusting."
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