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We swear we are not making this up. Last year, a good friend of ours, let’s just call him “George,” rented and watched “Private Parts,” the movie which chronicles radio shock jock Howard Stern’s rise to fame. During one scene in the movie, Stern is massaged in the radio booth by a naked woman named Jenna Jameson, an adult film star of apparently international reputation (we guess that’s somewhat of an accomplishment for people in that line of work). Jameson was, of course, quite lovely (naked or otherwise), and George decided to see if other photographs of her were present on the Internet. George soon came to find out that Jameson holds the distinction of being the “Most Downloaded Woman on the Internet,” although if he wanted to see the “really good stuff,” he had to pay somewhere between $20 and $30 a month. Realizing that Jameson wasn’t that lovely (and that George’s wife would rip his arms out of their sockets if she found such a charge on their credit-card bill), George ended his discreet inquiry into the seamy underbelly of the adult Internet then and there. Or so he thought. At the rate of about once a week (sometimes more frequently), George received e-mail from adult Web sites that purported to offer pictures, audio and/or video depicting sexual acts that had to violate some sort of law (criminal, moral or physical). George e-mailed the sender back, informing him or her that he was not interested in any such material and to please take his name off of any distribution lists in the possession of the company sponsoring the Web site. Even though he repeated this procedure with each e-mail he received, the flow of e-mails did not diminish. Often enough, George’s requests would come back “undeliverable” for some reason or another. Eventually, George changed his e-mail address so that these smut-sellers would stop bothering him. The above story is just one example of a problem that has been plaguing the Internet for years: Spam, which is loosely defined as unsolicited, commercial e-mail sent to numerous addresses or news groups. The term is believed to have come from the Monty Python comedy sketch about a restaurant where every item on the menu includes Spam, that famous (or perhaps infamous) luncheon meat. In the sketch, as the waitress recites the menu to a customer, the word “Spam” is repeated over and over by a group of Vikings eating at the restaurant. Similarly, Spam postings to e-mail or news groups often appear on a repeated basis. STATE LAWS DIFFER Spam is something of an inconvenience for many people. Putting aside the issue of arms getting ripped out of sockets by irate spouses (who make no distinction between the concept of solicited and unsolicited e-mail advertisements), Spam forces you to waste your valuable time deleting or otherwise responding to these unwanted messages. Relief, however, may be on its way. The U.S. House of Representatives has passed legislation that it calls the “Unsolicited Commercial Electronic Mail Act of 2000.” If passed by the Senate (it is currently in committee there) and signed by President Bill Clinton, consumers will have some relief from this unwanted inundation. In brief, the proposed legislation makes it unlawful for any person to send a commercial e-mail message to any person in the United States unless the message contains a valid e-mail address, conspicuously displayed, to which a recipient may send a reply to the sender to indicate a desire not to receive any further messages. If a recipient asks to be taken off a list, it will be unlawful for a person to send further unsolicited commercial e-mail to that recipient. The bill would make it a criminal offense to initiate the transmission of any unsolicited commercial e-mail with knowledge that any part of the message is false or inaccurate. The proposed legislation gives individuals a private cause of action against the sender and provides for damages equal to the greater of the recipient’s actual monetary loss or $500 per violation, not to exceed a total of $50,000 plus possible attorneys’ fees and treble damages in certain circumstances. Of course, as with any good piece of federal legislation, this one offers a few loopholes for would-be Spammers to weasel through. First, the legislation only applies to commercial e-mail messages. As much as you might hate the endless stream of knock-knock jokes that your Uncle Andy keeps sending you, they are not considered Spam under the proposed law, and you will not be able to sue Uncle Andy for damages. Also, the legislation does not initially apply to parties that have a “pre-existing business relationship” with one another. This simply means that if you have done business with a Web site within five years of receipt of the message, and the sender provides you with clear and conspicuous notice of an opportunity not to receive further messages from it, that company can send you unsolicited e-mail until you tell it otherwise. Finally, the legislation makes it legal for providers of free or discounted Internet services to require that you consent to the receipt of Spam for as long as you use the service. It should be pointed out that the legislation is not final, and many changes may occur while the bill is in the Senate. Also, 18 states have enacted legislation which, in some form or fashion, cover Spam activities over the Internet (Texas is not one of them — yet), and each state’s law will be different, if only slightly. While the proposed federal legislation precludes a state from imposing any civil liability for commercial activities or actions that are inconsistent with the federal law, it is too soon to tell whether state legislatures or the courts will find a conflict to exist. So, if you wish to Spam people (and the various marketing groups and advertising agencies across the United States will tell you there is nothing wrong with Spam if its immense power can be harnessed for good and not for evil), it is worth checking into each state’s particular laws. The new laws on the horizon seem to point to the fact that the era of the mass unsolicited e-mail campaign may be drawing to a close. Whether it comes from the states or the feds, it is clear that the government plans to let people like our friend George do a little arm-ripping of their own. Dawn Estes and Eric Levy practice Internet and technology law at Dallas-based Gardere & Wynne. This article was originally published on www.dfwtechbiz.com.

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