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Even before most people knew DSL from AOL, David Kramer was in the trenches in the war against spam. Ever since the Wilson Sonsini Goodrich & Rosati partner represented CompuServe Interactive Services Inc. seven years ago in one of the first anti-spam cases, he has been battling to free consumers from clogged in-boxes and unwanted pornography. Today, anti-spam outrage � and legislation � is making more headlines than ever. But Kramer says the real battle is taking place behind the scenes. The recent news stories, commercials, and editorials about spam-fighting initiatives taken by America Online, the Microsoft Corp., and Yahoo Inc. gloss over one crucial fact, says Kramer: that the major Internet service providers, hand in hand with marketing groups, are the ones working hardest to make sure that spam never completely goes away. The latest evidence, he says, is the fate of a tough anti-spam bill that died in the California state legislature. Kramer helped to draft it; Microsoft helped to kill it. The California bill would have outlawed all unsolicited commercial e-mail, which sounds like a great idea to most consumers, but not to ISP owners Microsoft and Time Warner Inc., or to the Direct Marketing Association. Kramer attributes its defeat to “direct lobbying by Microsoft politicians, and the influence Microsoft has over others in a position to curry favor in Sacramento.” Kramer says spam laws that these groups do support, which fail to completely ban spam, are worse than useless. “The problem isn’t fraudulent spam,” Kramer says. “It’s spam.” Of the CAN-SPAM Act pending in Congress now � also known as the Burns-Wyden bill � Kramer says it suggests “it’s an OK thing if you do it the right way. [But] there is no right way. It’s always bad.” The bill would regulate spam � and therefore create a protected area in which it can legally exist. The same companies that bear the biggest financial brunt of spam, Kramer says, also have the biggest potential financial gain from spam-generated sales, either of goods or of e-mail addresses. Microsoft, of course, sees things differently. Betsy Brady, the software Goliath’s policy counsel, argues that there are plenty of legitimate uses for commercial e-mail. The same customer who has asked Travelocity to send an alert about bargain flights to Paris may be happy to receive alerts about bargain flights to Amsterdam, too. Also, she points out that many businesses communicate through “commercial e-mail” that isn’t about sales at all; Microsoft sends out various security updates this way. Gerald Cerasale is senior vice president of government affairs at the Direct Marketing Association, one of the main lobbying opponents of a ban on spam. He argues that unnecessarily rigid restrictions would violate the First Amendment and harm honest entrepreneurs. Instead, he says, “if we can get enforcement and resources coming after fraudulent people, we can create a marketplace in e-mail where legitimate markets predominate and bad guys are the fringe.” Kramer’s worst-case scenario � that the law could prompt national marketers such as restaurant and hotel chains to adopt the tactics of Viagra spammers � is unlikely to unfold, Brady says. Major marketers, she says, have far more to lose by angering millions of consumers with unwanted e-mail. As she points out, “They’re not sending those kinds of e-mail now,” despite having the technology to do so and no laws holding them back. America Online Assistant General Counsel Charles Curran thinks the ultimate solution has to be technological, rather than legal. One of his arguments against banning all spam: Believe it or not, some people want it. “If certain people weren’t responding to this stuff, why would spammers continue to do this?” he says. His optimal solution would offer consumers a technology-based way to set levels of spam access, from all to nothing. Nevertheless, Kramer continues his efforts, talking with every legislator he can find (or who can find him) and appearing at panels nationwide, including a forum held by the Federal Trade Commission in May that was notable for its volatility. “Passions run high on the spam issue,” he says, characterizing many people’s feelings about spam as “almost a religious objection.” However, despite his own strong opinions against spam and spammers, he resists being called a crusader: “I’m not waving the flag. I’m not wearing armor.” Kramer travels at his own expense to these spam forums, and his advisory work for legislators is unpaid. He says his expectations for strong anti-spam legislation have “greatly diminished” after years of defeats such as the recent one in California. But Kramer keeps raising the alarm, hoping that eventually consumers and lawmakers will take charge. Amy Vincent is a reporter for The American Lawyer, where this article first appeared in the October issue.

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