Anti-spam legislation pushes forward

While most Americans have been paying attention to the waves caused by the Recording Industry Association of America's (RIAA) lawsuits against "music pirates" and the subsequent Congressional hearing, the United States Congress and Senate have been busy with other e-business. Soon after passing the Telecommunications Act, which strictly regulated telephone soliciting by enforcing a national opt-out policy, the legislature came under heavy pressure to address a similar problem in unsolicited e-mail, also known as spam.

Spam, according to the Spam Act of 2003 as introduced to the Senate by Charles Schumer (D-NY), is any email "without prior affirmative consent or implied consent from the recipient; or to a recipient who, subsequent to the establishment of affirmative or implied consent under clause, has expressed, in a reply submitted pursuant to section 204, or in response to any other opportunity the sender may have provided to the recipient, a desire not to receive commercial electronic mail messages from the sender."

In addition to the Spam Act of 2003, several other similar bills, such as the "Reduce Spam Act," "Criminal Spam Act," "CAN-SPAM Act," and "Computer Owner's Bill of Rights" are being considered in the Senate Committee on Commerce, Science, and Transportation. Other less refined bills are still in the House. The majority of these bills, when signed into law, would create a national opt-out policy for email, just as the recently passed Telecommunications Act will create for telephone calls. In fact, many consider the bills currently before the House and Senate to be addendums to the Telecommunications Act.

What is often overlooked is that 26 states already have anti-spam laws. Although Massachusetts currently does not have any laws prohibiting spam, neighbors Connecticut and Rhode Island have some of the nation's toughest. In Connecticut, spamming is a criminal offense. Electronic damages over $2,500 even result in an automatic class D felony. Connecticut also allows consumers and Internet Service Providers (ISPs) to sue spammers for damages and attorney's fees of $10 per unsolicited e-mail, up to $25,000 per day. Rhode Island creates a separate criminal offense known as "Computer Trespassing" for forging e-mail headers or selling forging software. Additionally, Rhode Island holds spammers automatically liable for $10 per unsolicited email and allows lawsuits to recover costs and damages ranging from $500 to $25,000 per email.

In addition to spam, Capitol Hill is considering what can be done about the more threatening phenomenon of Spyware. Spyware programs embed themselves within Internet software and silently record data, such as which websites you have been visiting, what you are buying, and create pop-up ads supposedly geared towards your interests.

Not only are many consumers frightened and upset by the prospect of constantly being under electronic surveillance, but major corporations are also deeply concerned about the copyright and trademark violations created by pop-up ads. One prime example now playing itself out in court is the case of the Gator Corporation. The Gator Corporation first offered free programs to consumers to assist them with protecting their online records such as credit card numbers and passwords. However, according to statements by the Gator Corporation, spy software was also implanted and used to create pop-ups and other online ads geared toward the consumer. The Gator Corporation is currently facing legal action by Hertz for infringing on its copyrights and trademarks by calling up ads for rival rental car companies when consumers visited the Hertz website.

Representatives Mary Bono (R-CA) and Edolphus Towns (D-NY) have introduced the "Safeguard Against Privacy Invasions Act" to address concerns regarding spy software. The bill is being considered by the House of Representatives and is expected to pass after several revisions.