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I’m sure by now you’ve noticed the difference. Your in-boxes are no longer cluttered with e-mails telling them about inexpensive sources for Viagra, Vicodin or Valium. Since the beginning of the year, you haven’t seen an e-mail about online gambling, pornography or fabulous real estate deals. In short, in-boxes are now spam-free. If this seems like a pipe dream, that’s because it is. Unfortunately, the reality of living with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the CAN-SPAM Act) is quite different. While the act only went into effect at the beginning of 2004, many are already suggesting that it may be time to can it. One of the fundamental flaws of the act is the limitation on who has the ability to enforce the new law. While the Federal Trade Commission has the primary responsibility for enforcing it, state attorneys general and Internet service providers also have standing to seek remedies for spammers who violate the law. Private individuals, however, have no standing to pursue claims based on violations of the new law. CAN-SPAM ACT IS INSUFFICIENT The penalties are also problematic. While various states — notably California and Virginia — had rather stringent anti-spam laws in place, the new law supersedes all state laws that regulate spam. The result is that e-mail marketing companies that willingly violate the new law may eventually face civil penalties. Such penalties are a far cry from the penalty under Virginia law: jail. California’s anti-spam law provided such a sufficient disincentive that a number of corporations decided to close subsidiaries dedicated to e-mail mass marketing. According to a recent press release by a California-based company that provides an e-mail filtering service, Postini Inc., spam declined by 1 percent between December 2003 (pre-act) and Jan. 31. According to Postini’s records, spam accounted for approximately 79 percent of the more than 4 billion e-mails Postini processed in January. Without an effective anti-spam law in place, and with the prevalence of viruses, worms and other malicious programs that periodically plague the Internet, it is no wonder that industry insiders are beginning to question whether e-mail can survive. According to PC Magazine, nearly half of small businesses recently surveyed reported that they would abandon e-mail if the spam situation worsened. Even with the use of anti-spam tools such as SpamAssassin or other anti-spam programs currently available on the market, spammers continue to discover ways to circumvent filters — partly by coming up with ingenious spellings for key words. Some industry insiders have even suggested that, given the ease with which spammers can hide the source of the spam, a new technical– rather than legislative — approach is necessary if e-mail is to continue being an effective communication medium. It is these technical issues that will likely doom a National Do-Not-E-Mail Registry before it ever has a chance to go into effect. Unlike telemarketers, whose phone numbers appear on caller-ID systems around the country, e-mail mass marketers often exploit certain technical advantages to conceal their identities. As a result, it can be difficult, if not impossible, to trace the actual origin of some e-mails. Without a means of identifying the source, enforcement of the CAN-SPAM Act becomes problematic. We are, at the very least, years away from a technical solution for making e-mail spam-and virus-free. But while we wait for a technical solution, should we put our faith in the CAN-SPAM Act? Considering that various state laws were somewhat more effective and provided each aggrieved individual with the right to seek remedies, it is difficult not to answer the question in the negative. Samuel Lewis is a partner at Feldman Gale & Weber (www.fgwlaw.com) in Miami where he practices computer and Internet law and intellectual property law. He is also an adjunct professor of law at Nova Southeastern University in Fort Lauderdale. He can be reached via e-mail at [email protected] To subscribe to the monthly newsletter “Internet Law & Strategy,” click here. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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