War on e-mail spam ratchets up in courts, legislatures

In-box junk mail: Is it free speech, or a threat to viability of the Internet?

Log on in the morning, and bam! There it is: spam – the bane of the electronic age, dozens of unsolicited commercial pitches for everything from "free" vacations to cheap Viagra cluttering up your in-box and fueling frustration.

That's why when the San Francisco law firm Morrison & Foerster announced it was suing a company that sends out unsolicited commercial e-mail, their own e-mail in-boxes filled up with unsolicited messages of a different kind: "Thank you!" and "Go get 'em!" from ordinary people.

Although this lawsuit is probably the largest of its kind, dozens of others are wending their way through courts in 20 states that have some kind of antispam legislation. It's part of a larger effort to control the proliferation of unsolicited e-mail, including a federal crackdown on fraudulent spammers, a push for a new federal antispam law, and the development of more sophisticated blocking technology.

Internet experts contend that spam costs billions of dollars a year by consuming valuable space on commercial computer servers and wasted employee time. Some argue that the volume and degrading nature of much spam has done immeasurable harm to the Internet's viability as a new mode of commerce.

Harvard fellow and Internet expert Jason Catlett contends the failure to control spam amounts to "the greatest economic tragedy of the Internet age."

"Millions of unwanted e-mail solicitations are sent each day, vexing hundreds of millions of people who feel unable to stop it," he says. "This reduces participation in online commerce and erodes the considerable benefits that responsible e-mail marketing offers to consumers and businesses."

Those who send bulk e-mails contend they're exercising their First Amendment rights – and trying to make a living. It's so cheap that even with only a handful of responses to a million pitches, it pays. But that's what the lawsuits aim to change.

The Morrison & Foerster suit is considered groundbreaking because of the size of the players involved. The firm, known as Mofo, is one of the largest and most tech-savvy in the country. Etracks, the company being sued, is a major online marketer that insists it's not a spammer because it sends responsible commercial pitches on the Internet.

But what constitutes spam and what is "responsible" soliciting are the questions the suit aims to sort out.

California law requires that all unsolicited commercial pitches carry "ADV" in the subject line to indicate the e-mail is an advertisement. It also forbids sending bulk to computer servers of companies with policies against it. And, it requires unsolicited e-mail to carry a valid toll-free number or e-mail address for unsubscribing.

Mofo says it notified Etracks of its policy against bulk e-mail, using the address provided by Etracks. But Mofo says its users continued to receive up to 6,500 Etrack e-mails. Mofo says the e-mails weren'tlabeled "ADV." The suit asks for the statutorily authorized damages of $50 for each e-mail delivered in violation of the law, up to $25,000 per day.

"We hope we're successful so we inspire other spamming companies to start complying with the law," says Mofo attorney Megan Auchincloss.

Etracks insists it has followed the letter of the law. It contends that Mofo never properly notified it of the policy against receiving bulk e-mail because a lawyer in the firm used the e-mail unsubscribe address designed for individual users – not institutions."It was sent by an individual to an automated mailbox that nobody reads," says Ken Wilson, lawyer for Etracks. He also argues that the "ADV" line was not required because the e-mail sent wasn't really "unsolicited." Everyone who received an e-mail, he contends, had some kind of "prior business relationship" with the company for which Etracks sent the bulk e-mail. An e-mail recipient may have bought something on that company's website, for example, to create the relationship.

Such confusion is being sorted out in courts across the country. In Washington, one of the states that allows individuals as opposed to just Internet service providers to sue, Bennett Haselton has about 30 cases against spammers pending in small-claims courts. The Internet activist has won nine cases – including awards totaling $5,000 – and lost three. Mr. Haselton's goal is to clarify the law, which has been interpreted differently by different judges.

One of his successful suits was against spammer Paulann Allison, who runs what her spokesman, John Faulkner, calls a legitimate bulk e-mail service in Maine, pitching things like German cutlery. Even before being sued, Ms. Allison had begun to rethink her business because of the increasingly obscene nature of spam. "People associate us with that. It's ruined our business," says Mr. Faulkner.