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They’ve been sued, outlawed and blacklisted. But spammers continue to thrive. Part of the reason, attorneys and consumer advocates say, is that efforts to block unsolicited bulk e-mail have been too broad, shutting out legitimate messages as well as the spam. Blacklisting of spammers and legislative measures to curb spamming have led to a spate of litigation. And the cases highlight the difficulty in defining spam and assuring that acceptable e-mail is not caught in the web of anti-spam programs. The problem is who will determine what exactly constitutes an “acceptable” e-mail. Just because someone sends out a bulk e-mail doesn’t necessarily mean it’s spam and that’s what’s causing so many problems for legislators and spam watchdogs. The issue is “not as cut-and-dried as people would like to believe,” said Ira Rothken, a San Rafael, Calif., solo practitioner who represents a client accused of sending spam. “We have to be careful in how we define spam, so we don’t punish conduct that is permissible in other areas of life.” MAPS VERSUS SPAM If there’s a legal battle that highlights the problem it’s that of Experian eMarketing Inc. The Denver-based company distributes e-mail for clients like Charles Schwab. Last year, Experian (then called Exactis.com) was contacted by the Mail Abuse Prevention System, a well-known anti-spam organization. MAPS claimed Experian was sending out unsolicited e-mail and demanded that the company mend its ways. Specifically, MAPS wanted Experian to adopt a double opt-in practice, in which consumers reaffirm that they’ve agreed to be on an e-mail list. MAPS maintains a database of Internet protocol addresses — a series of numbers specific to a computer — that it says send out unsolicited bulk e-mail. Internet service providers and other Web sites subscribe to the database and block e-mail originating from the listed addresses. When negotiations between MAPS and Experian broke down, MAPS put the company’s IP addresses on its blacklist. Experian immediately sued MAPS, seeking a temporary restraining order to get off its list. Last month the parties reached a settlement. Under the agreement MAPS must obtain a court order before it can list Experian as a spammer. And Experian can continue to use its single opt-in practice. For Experian the case helps set boundaries in the crusade against spam. The settlement “effectively draws an important distinction between actual spam and spammers and responsible Internet businesses like Experian,” said the company’s outside counsel Paul Schwartz, a partner in Cooley Godward’s Broomfield, Colo., office. DEFINING SPAM Of course, MAPS has a different view of the dispute. “They may feel vindicated,” said Anne Mitchell, MAPS’ director of legal and public affairs. “The reality is in the settlement they say they don’t abide by MAPS’ standards” of a double opt-in practice. Not everyone who fails to adopt this procedure gets on MAPS’ so-called Realtime Blackhole List. For an address to get on the roster a consumer must first file a complaint with MAPS. Mitchell said her group gets involved only after the individual has failed to work out the problem with the sender of unwanted e-mail. If you’re sending spam “we will then try to work with you to try to fix the problem,” Mitchell said. “Only when we, too, have failure will we add you to the list.” The MAPS database was created by Paul Vixie as a way to block spam from his computer system. He eventually posted the database on the Internet and other people began to use it. MAPS became a commercial entity about two years ago, Mitchell said, and only this year did the group begin to sign contracts with large sites — such as Internet service providers and educational institutions — for use of the database. They pay a fee, which Mitchell says often works out to a nickel a user. While Mitchell wouldn’t specify the number of sites that access the MAPS database, she estimated that 40 percent of Internet e-mail is protected by the MAPS system. As to how many IP addresses are blacklisted by MAPS, she said, “30,000 would be low.” That doesn’t translate into the actual number of spammers, however, since one large Web site could have several hundred IP addresses. MAPS sees its role as protecting the public from spam. “We’re no different from Consumer Reports or a restaurant reviewer,” Mitchell said. “We say if a site does not meet our standards” and give the end-user the choice not to receive e-mail from the site. But some consumer advocates question MAPS’ methods. The San Francisco-based Electronic Frontier Foundation says that under the MAPS system all e-mail from a listed IP address is blocked, including legitimate e-mail. “Legitimate speech that isn’t spam is being restricted,” said EFF executive director Shari Steele. She said Internet service providers are pressured to conform to MAPS’ standards. If they don’t change the way their system is configured “any message that the Internet service provider sends out is blocked,” Steele said. But Mitchell said its subscribers choose whether or not to accept e-mail from addresses in its database. “We don’t dictate how sites use the list,” she said. “We’re completely passive.” However, companies whose addresses have been blacklisted by MAPS see the group as an active defamer of legitimate business. Five companies, including Experian, have sued MAPS. To date, four of the cases have settled. At least one company, Internet pollster Harris Interactive Inc. agreed to adopt a double opt-in practice. Media3 Technologies, an Internet service provider, also settled its litigation with MAPS. ANTI-SPAM BILLS Federal and state governments also have joined the anti-spam movement. In the last few years several states have passed legislation to eliminate or curtail unsolicited bulk e-mail. But they, too, have been challenged in court. One of California’s anti-spam statutes was the basis for a class action against an online dating service. A San Francisco Superior Court judge ruled that a provision of the law is unconstitutional, and the case, Ferguson v. Friendfinder Inc., 307309, is being appealed. “You can’t have the will of California law being imposed on the entire country,” said Rothken, who represents Friendfinder. America Online Inc. also relied on a Virginia anti-spam provision in its suit against Netvision Audiotext Inc., an operator of pornography Web sites. The Electronic Frontier Foundation, which advocates protection of civil liberties online, was so disturbed by the Virginia statute that it filed an amicus brief in support of the plaintiff. Virginia’s statute “is so off the page even in comparison to other anti-spam laws,” said EFF senior staff attorney Lee Tien. He said the law doesn’t define “unsolicited” and leaves it up to the service provider to define whether e-mail is authorized. “That’s like saying it’s unlawful to say things that your ISP doesn’t like,” Tien said. Several federal anti-spam bills have been introduced over the years as well but have failed to be adopted. This year Congress introduced the Unsolicited Commercial Electronic Mail Act of 2001, H.R. 95, which would require unsolicited commercial e-mail messages to be labeled and include opt-out instructions. A similar bill, S. 630, was introduced in the Senate. While Rothken and others are in favor of a national law, they say hammering out an effective measure is difficult. “Weak anti-spam legislation is much worse than no legislation at all,” said David Sorkin, an associate law professor at the John Marshall Law School in Chicago who has a Web site devoted to spam laws. Legislation that doesn’t prohibit unsolicited bulk e-mail “legitimizes spam — it removes much of the stigma — and thus causes a tremendous increase in the volume of spam that ultimately falls through the holes in such statutes,” Sorkin said. The Electronic Frontier Foundation says it has been asked to support bills introduced in Congress and various other methods to fight spam. The group says the only solution is to develop tools that the end-user — the consumer receiving e-mails — can employ to filter out unwanted messages. “Regardless of how you feel about spam,” Tien said, “no one sending legitimate mail should have to suffer.”

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