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Similar to the do-not-call list that will be going into effect later this year, a recent study reveals that a strong majority of e-mail users would support a do-not-spam list. Such a list would allow e-mail users to put their names on a list, and senders of unsolicited commercial e-mail would have to check the list and make sure not to spam listed e-mail addresses. The study also provides other interesting insights. THE STUDY EPrivacy Group and the Ponemon Institute this month completed a joint empirical study focusing on consumer perceptions of unsolicited commercial e-mail, aka spam. The study reports survey findings from a sample of more than 1,090 adults in the United States. BURIED BY SPAM Notwithstanding increasing efforts to block and filter spam, and the enactment of various state laws to grapple with the spam problem, the study paints a fairly dismal picture of American life in the new age of spam. For instance, despite vendor claims that filters catch as much as 99 percent of spam, significant quantities of spam are still landing in e-mail in boxes. Indeed, according to the study, unsolicited email represents more than 25 percent of all e-mail traffic received by 61 percent of consumer in boxes. This results in a major time drain, as almost 40 percent of consumers spend at least 30 minutes daily coping with spam. Compounding the problem, companies that provide e-mail-related services are not able to ensure that valid e-mail will not be blocked or filtered. Not surprisingly then, more than 70 percent of consumers report not having received expected and desired e-mail. CONSUMER PREFERENCES The study reveals some rather strong consumer sentiments. First and foremost, an overwhelming majority — 74 percent — would like to see the establishment of a do-not-spam list. Of course, for such a list to have meaning, it would need to have serious teeth that would severely punish those who send spam to e-mail addresses registered on the list. In fact, 59 percent of consumers would like to see spammers punished by the courts, regulators, or even criminal prosecutors. Furthermore, an even greater majority of 79 percent want spam to be banned or limited by law. At this point, Congress has not yet enacted an overarching federal law to combat spam, and instead, some states have stepped in to fill the void. However, piecemeal state laws do not create consistency, and could impose differing requirements on interstate commerce, in violation of the dormant commerce clause of the U.S. constitution. Interestingly, while the spam debate frequently has focused on whether a recipient has opted out of or into a specific e-mail list, the study finds that whether a recipient deems a particular e-mail to be spam depends primarily on the relationship the recipient has with the sender. Thus, if a recipient has had a prior relationship of some sort with the sender, unsolicited commercial e-mails from that sender would not be considered spam by the recipient, even though the recipient never approved receipt of the e-mail. Along these lines, only 4 percent of consumers classify e-mail from companies with whom they do business to be spam, and very few would choose to block such e-mail. As a matter of fact, approximately 70 percent of consumers find it appropriate for companies to send them e-mail if the consumers have off-line relationships with the companies. And more than two-thirds of consumers believe it acceptable for companies to send them e-mail if a family member provided their e-mail addresses to the companies. At the end of the day, it appears that unsolicited commercial e-mail from companies or persons who do not have a prior nexus with the recipients leads to the classification of such e-mail as unwanted spam. NOW WHAT? Technological solutions alone are not getting the job done in the war on spam. Some state anti-spam laws are on the books, but spamming continues. Lawsuits are being filed against spammers by the likes of Microsoft, and that may help. But, consumers want more action and they want it now. Despite consideration of a number of anti-spam bills, Congress still has not enacted a broad federal law to try to stop spam in its tracks. Perhaps a do-not-spam list, desired by consumers, could be an answer. The danger is that spammers could access the list and use that for the sending of e-mails to e-mail addresses set forth on the list. So, a do-not-spam list would have to have real teeth, for deterrence. 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. Mr. Sinrod’s Web site is www.sinrodlaw.com, and he can be reached at [email protected]. To receive a weekly e-mail link to Mr. Sinrod’s columns, please type Subscribe in the subject line of an e-mail to be sent to [email protected].

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