Spam Report: U.S. Regulators Ignore Most Junk E-Mail

When spam is mentioned, most business owners immediately get a bad taste in their mouths. Spam costs companies time and money, from employees sifting legitimate e-mail from junk, to the technical and legal procedures used to fight spammers.

But to date, the U.S. Federal Trade Commission (FTC) has only gone after spam in cases in which deceptive advertising was being prosecuted. Unsolicited commercial e-mail (UCE) itself, regardless of its contents, has not been a target.

Some experts think that should change.

“The issue is crystal clear,” attorney David Kramer, of the law firm Wilson Sonsini Goodrich & Rosati, told the E-Commerce Times. “Spam is theft. It is a shifting of the costs from the advertiser to the advertising recipient and the parties transmitting the message.”

“There is no precedent for such cost-shifting in the fields of telemarketing or fax marketing,” Kramer added. “Spam is not free. The costs are staggering and are borne by ISPs (Internet service providers) and businesses in real money.”

No Trespassing

Kramer, who represented CompuServe in the seminal anti-spam case of CompuServe v. Cyberpromotions, won with the argument that the spammers’ use of CompuServe’s network was a trespass on its networking equipment.

The precedent has been used in numerous cases by America Online (NYSE: AOL), CompuServe’s successor, in its ongoing battle to keep spam from burdening its network.

The Direct Marketing Association, however, takes the position that industry, not government, is in a better position to deal with unsolicited e-mail that is not in itself deceptive, according to DMA director of public and international affairs Louis Mastria.

“As an industry, you want to target people who want to receive the mail, and do not want to target people who do not want to receive it, because you don’t get a return on your investment,” Mastria told the E-Commerce Times. “The DMA takes the position that industry is doing a better job.”

Spam a la Carte

The FTC maintains a database cataloging the millions of unsolicited e-mails forwarded by U.S. citizens and companies. FTC staff attorney Jennifer Mandigo told the E-Commerce Times that the FTC is working to analyze what it has been sent.

The FTC “uses the database to start new cases and find evidence,” she said.

Mandigo said that out of 196 recent cases being handled by the FTC, 30 “have a spam component.” However, the commission has yet to take action against companies or people who send the millions of unsolicited e-mails flooding privately owned computer networks.

“We have not yet gone after a target just for spam,” Mandigo said.

Action and the Act

In a June 1998 presentation made on behalf of the FTC before a U.S. subcommittee, FTC commissioner Sheila Foster Anthony made it clear that the agency was only going to fight what it considered to be fraudulent spam.

“The Commission’s focus has been on deceptive UCE,” Anthony said. “To the extent that UCE is not deceptive, the Commission’s ability to challenge it may be circumscribed.”

According to the FTC, those unsolicited e-mails are in themselves not violations of the FTC Act (the federal law that broadly defines the power of the agency to regulate U.S. commerce).

At the same time, however, under the primary section of the Act, the FTC is empowered to regulate “unfair methods of competition in or affecting commerce” as well as “unfair or deceptive acts or practices in or affecting commerce.”

So while the agency may argue that it only has the power to go after deceptive e-mails, the very law that gives the agency its power includes unfair practices as well.

True or False

If there is a path to a future wave of anti-spam pursuit, it could involve the tactics spammers use to distribute the e-mails.

Many companies that send spam, even if the content itself is not deceptive, use “false routing” devices like fake headers and source indicators, which hide the origin of their messages.

When asked if false routing of millions of spam marketing messages would be considered sufficiently unfair or deceptive for the FTC to pursue a case, Mandigo said that she “would not confirm or deny whether the agency is going to take on false routing.”

If nothing else, the FTC is seemingly leaving open the ability to pursue a broader range of spam in the future.

12 Comments

  • Well seems some people don’t like spamming and some think it is ok to open your e-mail and find 10 to 30 spam e-mails…

    Well to me I think it is wrong…what should be done…Simple…forward your spam mail to Congress and Senators. I don’t care what kind of spam it is….porn, those bogus free cell phone ads, those free bogus vacation ads….I mean ALL of them…Let’s see how they like receiving spam e-mail…

    • Agree – I am disgusted that my 4-year-old daughter is being sent invitations to buy drugs online – these are US based companies. Who do these people think they are? I cannot unsubscribe to this stuff. I tried to track one company down – to no avail.
      The sooner the US gets its act together to stamp out this stuff, the better for all of us. I know what I would do if I ever got hold of the people who send these things – and believe me you wouldn’t want to know.

      • Robert Gray’s thought processes are as sound as his grasp of spelling and grammar. Spam is a disease of the Internet; spammers are parasites hitching a free ride and sapping the vitality of their host. Shut ’em down and fine ’em.

        • So, to use an analogy…

          What if we lived in a place where people could

          walk into your home, make you sit down and

          listen to their advertisement. Oh, and by the

          way, they hand you a bill for their travel costs..

          Well, you have a house, right? So therefore

          you must not want privacy…

          Or another one..

          You get a collect call, reportedly from your

          wife/parents/daughter/whatever.. You take it,

          and get a sales pitch…. You have a phone,

          so therefore you MUST have wanted this, right?

          It’s the same thing. THEFT of MY resources to

          advertise YOUR product. At least with TV and

          snail-mail YOU (the advertiser) are footing the

          bill, so you are a bit more selective about

          who gets an advertisement. With SPAM, there

          is little/no cost to the sender, so he can say

          things like.. “Hey, this is a person. His/her

          parents had sex, therefore HE/SHE must like

          sex, therefore I can send them porn..”

          • Unsolicited commercial e-mails cost the recipient; the other fora where this is the case are fax and calls to cell phones (and similar). In many places these unsolicited calls to these are *already* illegal. Why should “spam” be an exception? In specific reply to Robert Gray, I run a small SMTP server; I regularly clear the “junk” box of spam sent to addresses that have *never* been used … the only way one will not get spam is not to use the internet at all since the number of thieves “out there” is so large … however if their behaviour is outlawed perhaps we will see a reduction in this theft and fraudulent use of our resources.

          • I have to disagree with you. I live in Japan and have E-Mail accounts in both Japan and the US, the vast majority of the UCE in both accounts that I receive is from open relays in Korea and China, last year it was Russia. There are measures such as the Real Time Black List that help to filter out known spam sites, and you can block known spam domains (I currently have almost 1,000 sites blocked, and I still receive 30 UCEs a week). That is only a small part of the solution. The point is much of the problem can be eliminated by simply closing down open mail relays. I hope that legislation will prove a remedy to this situation, but since the problem is worldwide, not just US-based as you assert it is unlikely that any one country will be effective in legislating UCE out of existence.

          • Here’s another analogy: what if when you turned on the t.v., before you could watch your show you had to sit (or fast-forward) through all the commercials that were broadcast since the last time you turned on the television?

          • our government and its facilities are funded by the american public,,,and in the wake of the attacks on september 11th, i believe its safe to say that we should spend more time dealing with the bigger issues at hand rather than things like spamming. Spamming is a hassle, but how is it any different than people handing out flyers on the street? do u prosecute them? If you don’t want to read the mail then click delete, it is under your full control, just like normal mail from the post office is, you get a lot of advertisements and unwanted mail, but you dont pull up lawsuits on any of the chains of stores. There are a lot of things out there that take away from a company’s desire to “streamline” operations but to come to the realization that spamming cannot be eradicated, just like terrorism and pickpocketing cannot be, the next step should be putting security systems in place that constantly combat spam mail. Isn’t this the way that technology progresses most expediently? By racing against hackers/spammers to develop better systems. If ivy league institutions support hacking for the improvement of security, than how can the american government be hyocritical?

  • I have repeatedly written specialoffer@inyourmail.com and asked them to remove my E-mail address from their list. In writing I have made it perfectly clear that I do not wish to receive any E-mail from them. For example, last Thursday I wrote them an E-mail stating that I did not want any of their E-mails sent to my address. When I checked my E-mail this week I found 6 E-mails from them alone.

    Their actions show total disregard for my wishes. Is there an internet presence or authority that I may report this to?

    Hashiri

  • The spam issue is International. Most of the rubbish comes from the US. The worst is those mails that contain a web link that starts a dial-up connection. In Europe we pay for local calls to the ISP, therefore these American companies are stealing money from us. They are obviously aware that what they are doing is immoral, hence they hide their identities.

  • I for one am thankfull that the FTC is not addressing your idea’s on Spam. There are plenty of laws on the books that deal with those who abuse. The only way to shift the cost is to conduct already illegal activities. To conduct a marketing campain on the Internet is far from cheap. It is a cost effective approach but it still costs quit a bit. These people who demand total privacy and total control of their inbox already have that, it is only by their choice to activate public access are they open to any of these forms of email. Back in the days of research instituations you sent unsolicated information all the time because it was assumed if the person ran a program to act as a listening agent they must want the general public information. It is easy to obtain free email accounts for general internet activities that can be dumped if you have spam problems all the while keeping your personal email truly private. But again, if you go posting your email address to world wide public forums you can not demand privacy. If you want privacy at least make a minimul effort to maintain your privacy.

    Robert A. Gray

  • Spam e-mail is nothing but a manual virus and should be treated as such. It costs time and money to remove, it clogs networks, it is sent out by people who do their best to mask their identities. It’s a virus.

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