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Notwithstanding the uproar about unsolicited commercial e-mail, affectionately known as spam, over the past several years, Congress still has not passed a law to grapple with the growing spam problem. To fill the void, some states have passed laws, and technology has been developing in the effort to defeat spam. Yet, the recipients of spam still feel that not enough has been done. FAILURE AT THE FEDERAL LEVEL A number of anti-spam bills, with different features, have been proposed in Congress in recent years. However, none of these bills has become law. Perhaps the growing magnitude and proliferation of spam will cause Congress to take decisive action this year. In the meantime, other steps have been taken. ACTION AT THE STATE LEVEL Given the inaction by Congress, at least 20 states have passed or are actively considering legislation designed to thwart spam. The laws of these states differ one from the other. This creates problems. First, e-mails are not sent to specific geographic destinations. Rather, they are sent to e-mail addresses on the Internet. Thus, the senders of e-mails, whether they be spam or not, have a difficult time knowing the set of laws with which to comply. Second, a couple of cases have suggested that state anti-spam laws can violate the dormant commerce clause in the Constitution by imposing differing requirements and burdens on interstate commerce. Third, the issue of jurisdiction arises as to whether a state can impose its laws on senders of e-mails who are not physically located within that state. TECHNOLOGICAL MEASURES Various companies have developed technological products, such as filters, designed to prevent spam from reaching intended recipients. These efforts can lead to unintended negative consequences. The biggest problem is that filters not only can root out spam, they also inadvertently can block out “legitimate” e-mail that recipients truly want to receive. Moreover, filters are imperfect, and do allow spam penetration under certain circumstances. RECENT DEVELOPMENTS There have been developments on all of these fronts. Congress continues to study the spam problem, and perhaps this will be the year of federal legislation. The states continue to try to fill the federal void. For example, Washington state currently is considering a bill that would make plain that district courts within the state would have jurisdiction over out-of-state senders of spam that reach recipients within the state. Further technological efforts are being made to block spam. This has become necessary to combat wider availability of spamming software and CDS and quicker hardware for sending millions of e-mails at a time. Along these lines, a group of e-mail marketers has formed the Email Service Providers Coalition to set up a forum for people to report missing legitimate email that has been caught in spam filters or traps. The purpose of the forum is to assist software companies and spam fighters to build spam filters that do not hold legitimate e-mail hostage. In addition, some companies have taken legal action to help fight spam. For example, Microsoft recently filed a lawsuit in federal court in San Jose, Calif., seeking subpoenas to investigate the use of “dictionary attacks” to discover active Hotmail accounts. Apparently, unknown defendants have used a computer program to go through every entry in a dictionary to guess passwords. The program guessed millions of random e-mail addresses to see which ones were active and then subject to spam. Likewise, AOL Time Warner’s America Online unit secured an injunction and obtained a monetary settlement from a spammer last year, while Earthlink obtained a multimillion-dollar judgment in a spam case last year. STAY TUNED Currently, there is action on many fronts to combat spam. Perhaps one year from now we will be able to say that such action will have led to tangible results. Eric Sinrod is a partner in the San Francisco office of Duane Morris ( www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. Sinrod’s Web site is www.sinrodlaw.com, and he can be reached at [email protected].

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