ASHINGTON,
May 2 — There probably isn't a "Wendy" behind the e-mail offering a way to
"lose 30 pounds in 30 days." And it seems unlikely that the real vendor of
the "Iraqi most-wanted playing cards" is really named "Doc Holiday."
Most unwanted bulk e-mail, or spam, is sent under forged names and
addresses, making it hard to track down the real senders. At a three-day
forum that just ended here on spam, sponsored by the Federal Trade
Commission, there was a consensus that spam was increasing rapidly this
year. But there was little certainty about who was behind it.
That makes it hard, of course, to bring "Doc Holiday" to justice. But
more important, understanding who is sending the messages is crucial to
figuring out what the right policy should be to deal with spam.
The Direct Marketing Association and
AOL Time Warner's America Online, among others, say the majority of the
truly revolting bulk e-mail comes from a network of 150 to 200 master
spammers. This camp is calling for narrowly written laws, like Virginia's
new anti-spam law, with tough penalties for fraudulent e-mail, to go after
these spam kingpins. The Can Spam Act, which was recently introduced in the
Senate, is another law this group favors.
But many others involved in the Internet see thousands of spammers, from
teenagers in basements to legitimate businesses, that become too aggressive
in their e-mailing. Fighting these lesser offenders, they say, requires
different tactics meant to force marginal players into legitimacy, such as
disclosure rules in the anti-spam legislation proposed by Senator Charles E.
Schumer of New York and Representative Zoë Lofgren of California, both
Democrats.
And there are some who argue that an e-mail box is inherently more
private than a postal mailbox and that nearly any marketing pitch that has
not been clearly requested by the recipient should be banned. This view, as
popular among some of the Internet elite as it is detested by the marketing
industry, has few backers in Congress or state legislatures. But it has led
some longtime anti-spam activists to oppose legislation like the Can Spam
Act because it would have the effect of legitimizing some unsolicited
e-mail. The Can Spam Act, for example, would permit a company to send e-mail
to someone with whom it has no previous relationship as long as it does the
following: clearly identify itself and what the message is; say what it is
an advertisement for; and offer recipients a method to say they do not want
any more offers from that sender.
"We are at a tipping point with spam," David Sorkin, associate professor
at the John Marshall Law School in Chicago, said in a panel presentation at
the forum. "But, with the bills we see now, I fear we will be on the wrong
side of the cow."
Senator Conrad Burns, the Republican of Montana who is one of the authors
of the Can Spam Act, said in an interview that he wanted to create a bill
that balanced the rights of e-mail users and legitimate marketers. But in
any case, he added, it is impossible to push a tougher bill through
Congress. Indeed, a virtually identical bill passed the Senate Commerce
Committee last session but languished on the floor.
"To those who would stand back and criticize, I say `come on down and try
to pass your bill if you think it looks so easy,' " he said.
The Direct Marketing Association, the trade group that represents
companies that send postal mail and e-mail, argues that the few are ruining
e-mail for the many. "While there are 100,000 individuals who are causing
the spam problem, there is a huge volume that comes from a relatively small
group of companies," said the association's president, H. Robert Wientzen,
at the forum. "We think we need a very vigorous effort to root these people
out."
To back up his claim, Mr. Wientzen said in an interview that the
association was working what it called "Operation Silver Platter" to
investigate significant fraudulent spam operations. The evidence will be
delivered to law enforcement officials, who will be able to bring action
without having to finance expensive investigations with government money.
But many at the forum argued that much of what e-mail users see as spam
is sent by companies that include legitimate addresses and subjects.
"There is lots and lots of spam that has pristine headers," said Ken
Schneider, the chief technical officer of Brightmail, a company that tries
to block spam for corporations and e-mail providers.
To deal with that, Mr. Schumer, for example, proposes forcing all
unsolicited commercial e-mail to include the term "ADV" at the beginning of
the subject line. He also would order the trade commission to create a
national registry of people who do not want to receive spam.
Congress and President Bush recently approved a similar national
do-not-call list after various state registries proved to be a popular and
effective way to cut down on dinner-time invitations for gold cards. The law
takes effect July 1.
But Timothy J. Muris, the chairman of the F.T.C., suggested in an
interview that he doubted such a registry would be effective for e-mail.
"If these people are already breaking the laws, what makes you believe
that they will comply with do-not-spam lists," he said. The telemarketing
lists did work, he said, because most calls were made by businesses that
were otherwise legitimate and not committing fraud.
The idea of an ADV mark in e-mail subject lines has been a part of many
state spam laws. There was a general agreement at the forum that so far this
has not been effective.
The Direct Marketers Association and other mailers worried, moreover,
that if such a rule were mandated users and Internet service providers would
set their systems to automatically discard all mail with the ADV label.
"If we become emotional and irrational here, we are liable to throw the
baby out with the bath water," Mr. Wientzen said.
But even if spammers do not comply with the law, argued Paula Selis, a
senior counsel in the Washington State Attorney General's Office,
prosecuting violators of straightforward consumer protection laws is much
easier than proving fraud. The do-not-call list rules, for example, allowed
the state to file for summary judgments against telemarketers who called
people on the registries.
Ms. Selis and a number of other anti-spam activists argued in the forum
that individuals need to be empowered to be able to sue companies that send
them e-mail against their wishes.
"The only way to deal with a large number of problems is to empower the
large number of us to take action," said David H. Kramer, a partner in the
Silicon Valley law firm of Wilson Sonsini Goodrich & Rosati. "Without a
private right of action, you are like a dog chasing a car. What happens when
you catch it? Nothing."