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Just about everyone’s heard the old comedy line “How can you tell when a politician is lying? His lips are moving.” Well, in the modern age, how can you tell when a politician has nothing of value to say? He sends spam. It was perhaps inevitable that unsolicited commercial e-mail would be transformed into a platform for political candidates. If spam can be used to effectively market just about everything from low-cost Viagra to pornography, it stands to reason that it can be used to market political candidates. Before you conclude, however, that spam has become a permanent fixture in our daily lives — even with filters and open relay lists, not a day goes by that I don’t receive more than a dozen spam e-mails — think again. Various states are considering forms of anti-spam legislation, and the Boston Globe recently reported that spam was banned in the European Union. The delay in United States in passing anti-spam legislation has spurred a variety of anti-spam solutions, among these are software packages with names like “SpamAssassin,” “BrightMail” and “Habeas Sender Warranted EMail.” The approach by Habeas Inc. of Palo Alto, Calif., seems to be among the more unique: The program copies a copyrighted haiku into legitimate e-mail messages and filters out messages that do not include the haiku. The theory behind the product is that when spammers duplicate the haiku in their spams, the spammers will be liable for copyright infringement. While self-help measures are a good idea, they still don’t solve the problem. As a result, some spam recipients have become anti-spam litigants. Many individuals are taking their fight into small claims court in the hopes of following the successes of Internet service providers such as American Online, which secured an injunction against a spammer in April, and EarthLink, which in July secured a judgment against a spammer in excess of $24 million. This fight has started to hit home. A Washington resident recently brought suit against a Florida steroids marketer for violating Washington’s anti-spam laws. Although the initial action was unsuccessful — attributed to a mistake the pro se litigant made before retaining counsel — the resident’s attorneys will refile the action in either federal district court or state superior court, and they hope to recover a judgment between $500,000 and $1 million. Individuals are not alone in this fight. The attorneys general from California and New York have started taking action against spammers. As it stands now, 26 states have anti-spam laws on the books. Although the requirements for each of these laws varies — with some requiring the inclusion of certain labels, subjects or opt-out information — all of them prohibit the manner by which a majority of spam is sent today. Although Florida hasn’t outlawed this conduct yet, the Florida Bar’s Ethics Rules, Rule 4-7.6(c)(3) requires that attorneys who advertise via unsolicited commercial e-mail include “legal advertisement” in the subject line. Given the readily discernable trend of people around the world collectively shouting “enough” when it comes to spam, it is astounding that politicians would seek to use this as a vehicle for delivering information about their campaigns. As astounding as it may be, however, this is exactly what one of the candidates running for governor of Florida has done. On the candidate’s campaign Web sites, there is an option to sign up for e-mail alerts relating to the campaign. While opt-in lists are a fine idea, somehow I and a number of other people I know started receiving e-mails from the campaign despite the fact that none of us had opted in or otherwise subscribed to receive these e-mail alerts. We were being spammed. Still, the problem seemed easy enough to fix; it was just a matter of opting out of the list. One visit to the candidate’s Web site, however, and I discovered that the campaign’s e-mail list was something akin to the Eagle song “Hotel California”: while you could check out anytime you liked, you could never leave. There was no way to opt out of the list. How could a politician seeking the chief executive position in a state that might actually pass anti-spam legislation engage in the same conduct? In this particular case, the candidate didn’t. According to the particular candidate’s campaign manager, the campaign takes spam very seriously. As a result, the campaign’s e-mail alert system is a “double-permission system.” Either a person must request to receive the e-mail alerts or, if subscribed by someone else, the systems send an e-mail requesting the recipient’s confirmation that they want to receive the e-mail alerts. In addition, each of the e-mail alerts contains information recipients can use to remove themselves from the list. In this particular case, the spam appears to have originated from one of the local volunteer organizations rather than the campaign itself, and it is unknown how the local organization obtained my e-mail address. The candidate’s campaign manager did comment, however, that although the e-mail alert system has over 100,000 subscribers, the “volunteer organizations don’t refer names to the campaign.” I have now taken the self-help approach and no longer accept e-mail from the local volunteer organization, despite the fact that they continue to send it to me. Perhaps one day those involved in our political process will actually learn a little bit of Netiquette; in the meantime, I suppose I’ll have to vote with my fingers by repeatedly pressing the delete key. Samuel Lewis is an attorney practicing computer-Internet law and intellectual property law with Feldman Gale & Weber in Miami. He is an adjunct professor of law at Nova Southeastern University. He can be reached at [email protected].

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