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When Michael A. Jacobs, a partner at Morrison & Foerster in San Francisco, sued e-mail direct marketer Etracks.com Inc. last month for inundating his firm with thousands of unsolicited e-mails — or spam — he never expected the reaction he would get. “I got a huge volume of unsolicited e-mails,” he said. For a change, though, it was not more spam. Instead, people were thanking him for bringing the case. Jacobs said that so far, he has received around 250 e-mails “from all walks of life” — individual consumers to Fortune 500 companies — applauding him and his firm for their action. The e-mails are as varied as the senders, ranging from simple kudos to inquiries into whether the firm plans to bring a class action to offers of additional evidence of Etracks.com and other spam attacks. But they are universal in their expressed hatred of spam. “Thank you for suing the spamsters!” reads a typical e-mail. “As a victim of their unwelcomed intrusions into our lives, we are pleased that SOMEBODY with some power is taking notice and seeking a remedy. Go get ‘em!” “I hate spam as much as the next guy, but I can’t do anything about it,” reads another. “Take these jerks for everything they’ve got. You’re pinch-hitting for all of us. I love you.” Jacobs said he had no idea that the lawsuit would hit such a raw nerve. “The reaction has indicated is that there is a huge anger out there about spam and the apparent fact that nobody is doing anything about it,” he said. HARD TO COMBAT Spam has become a fact of life for virtually everyone with an e-mail address. According to Jupiter Media Metrix, a New York online research firm, Americans received an average of 571 spam messages in 2001, up about 30 percent from the prior year. The problem looks like it is only going to get worse: by 2006, that number is expected to nearly triple to 1,479. The predicament faced by the anti-spammers is that spamming is incredibly cheap. And from a legal and technological standpoint, it is also extremely difficult to combat. No federal law exists to curtail the practice of spamming, and experts anticipate that no such law will be passed any time soon. Several anti-spam bills have been introduced in Congress in the last two Congressional sessions but “the momentum has really waned,” said Ben Isaacson, executive director of the Association for Interactive Marketing, a subsidiary of the Direct Marketing Association. But nearly half the states — 22 at last count — have anti-spam laws. [ See related chart: Jumping on the Spamwagon.] Violations can lead to heavy fines and in some cases, even jail time. However, the laws have gone largely untested, because for the vast majority of consumers, spam is really just an annoyance. “It doesn’t lead many people to call their lawyer,” Jacobs said. For spammees incensed enough to seek action, they face the difficulties not only of identifying their tormentors but getting them to pay up. Sophisticated spammers are notoriously hard to pin down. Typically, they will rout their bulk e-mail through an unsuspecting Internet service provider to hide the message’s true origins. Although many ISP’s have installed anti-spam equipment on their mail servers, vast numbers of unprotected mail servers still exist, especially in countries like China who are relative newcomers to the Internet. And culprits often turn out to be located overseas, which effectively makes them judgment-proof. Thus far, these hurdles have been enough to dissuade everyone but a handful of people from suing spammers. Jacobs said he thought of the lawsuit against Etracks.com as a test case for California’s anti-spam law. Only one other suit has invoked the four-year-old law, which requires that unsolicited commercial e-mails carry the label “ADV” in the subject line or ADV:ADLT if the e-mail is pornographic. The law also requires spam to provide a legitimate e-mail address to allow recipients to opt out of future mailings. That case, Ferguson v. Friendfinders Inc., 94 Cal. App. 4th 1255, ended up in the state’s highest court, which upheld the law’s constitutionality earlier this year, rejecting the defendant’s argument that it impermissibly interfered with interstate commerce. The only other state to see its anti-spam law enforced is Washington. Shortly after the law’s 1998 enactment, the state attorney general filed a civil suit against Oregon resident Jason Heckel, who was allegedly selling his booklet “How to Profit From the Internet” through spam. The Washington Supreme Court upheld the law’s constitutionality last year, and the case is scheduled to return to court this fall. If convicted, Heckel could face fines up to $500 per spam. The publicity generated by the Heckel case has encouraged a number of Washington residents to take up arms against spammers by suing them in small claims court. One anti-spam vigilante named Bruce Miller is even writing a book on how to fight spam through the court system. Spammers have also been the target of a number of federal lawsuits brought by Internet service providers — America Online Inc. alone has filed 18 such suits — who have generally been quite successful in getting both injunctive and monetary relief. These cases, however, typically do not invoke anti-spam laws. Instead they are brought under the federal Computer Fraud and Abuse Act and other laws that prohibit the unauthorized abuse of a service provider’s equipment. IMPERFECT TECHNOLOGY There are a number of filtering devices on the market that purport to weed out spam, and trade groups like the Direct Marketing Association advocate a technological, as opposed to a legal, solution to the problem. But the effectiveness of these devices is limited because of the wide variety of e-mails, both wanted and unwanted, that most people get. The DMA’s Isaacson admitted that his filtering program is only about 50 percent effective. He said he still gets “probably 50 spams a day.” An overly vigilant program presents its own problems, especially for e-mail-dependent businesses. “We have to be very careful about maintaining communication lines with our clients,” Morrison & Foerster’s Jacobs said. “We can’t afford to have an over-inclusive filtering system.” The combination of all these factors — legal, economic and technological — has created an environment in which spam is flourishing virtually unchecked. “It’s a free for all right now,” said Douglas J. Wood, co-executive partner of Hall Dickler Kent Goldstein & Wood in New York. “Most [spammers] ignore the state laws, frankly.” The result has been “a lot of garbage,” Wood said. And spam’s bad reputation in turn has scared off a lot of would-be legitimate marketers, who are also intimidated by the confusion of state anti-spam laws, said the DMA’s Isaacson. Wood said the current state of affairs hurts the most in the business-to-business arena, a highly competitive marketplace in which smaller marketers could really benefit from the use of commercial e-mail campaigns. He said he tells his clients that the safest approach for a commercial e-mail marketer is first, to try to avoid Washington state. As for the rest of the country, he advises clients to take the “lowest common denominator” among the panoply of state laws, labeling their advertisement “ADV,” using a valid e-mail address and providing recipients with the chance to opt out of future mailings. But advertisers are not very excited about labeling their e-mails ADV, which they feel “is tantamount to saying it’s junk mail,” Wood said.

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