Internet users are plagued by an epidemic of unsolicited commercial email ("spam") that is sent out in bulk by various advertisers. Most users are familiar with spam, and receive countless messages ranging from credit card offers to advertisements for pornographic material. Spam is not only annoying to email users; it is quickly growing into a very expensive problem, and one that is difficult to combat.
Brightmail, a San Francisco-based company that makes anti-spam software, estimates that spam will account for 40% of all email messages sent in 2003, up from only 8% in 2001. Cumulatively, the recipients will spend hours a year deleting these unwanted messages, and the problem will also affect Internet users financially. Internet service providers (ISPs) already incur the costs of added bandwidth to deal with this traffic, plus the added costs of filtering software and dealing with customer complaints related to spam. Many ISPs plan to implement tougher screening tools sometime this year, but filters have the potential to be over-inclusive and screen out legitimate email along with spam.
There is a strong desire for the law to step in and control the flood of spam. Currently, about half the states in the U.S. have some form of statutory anti-spam law. Delaware takes a hard-line approach and prohibits all unsolicited bulk email, while other states, like California, require that unsolicited commercial emails contain a method for recipients to remove themselves from the advertiser's mailing list. However, there are some serious limitations on state legislation. First, the Internet is largely interstate (as well as international), opening up challenges under the Commerce Clause of the U.S. Constitution. Also, a First Amendment issue may arise if spam is unconditionally prohibited. So far there is no federal law prohibiting or regulating spam, due largely to lobbying efforts by businesses. Anti-spam groups stress that any federal law should contain a private right of action for those harmed by excessive spam, and have not been supportive of bills that lack this provision.
Much of the fight against spam thus far has been waged through civil suits brought by states and ISPs where demonstrable economic harm can be shown. States have also brought suit under their laws against out-of-state offenders. While these actions provide some level of relief, the difficulty of enforcement and lack of uniformity requires a federal law, as well as advances in technology, to bring spam under control.
