Spam laws in the US summarised

The following summary is based on a press release yesterday from Tom Geller of Suespammers, an organisation described as a “legal resource for recovering from damages caused by e-mail vandalism.”

Despite several attempts at legislation, there are currently no US Federal laws that explicitly forbid the sending of unsolicited commercial email (UCE) or unsolicited bulk email (UBE), both of which are commonly known as spam.

The different anti-spam proposals vary in whether they follow an “opt-in” or “opt-out” model. Opt-in laws forbid spam unless an individual has elected to receive it. Opt-out laws require spam recipients to proactively tell spammers to stop e-mailing them. Polled e-mail recipients overwhelmingly favour opt-in laws; however, most US state laws are on the opt-out model.

In the 107th Congress, three bills are being debated. In order of introduction, they are:

• The Wireless Telephone Spam Protection Act (opt-in).
• The Unsolicited Commercial Electronic Mail Act of 2001 (opt-out). This Act protects equipment owners' rights to opt out their resources from processing spam.
• The Anti-Spamming Act of 2001 (opt-out). This Act does not protect equipment owners' rights to `opt out their resources from processing spam.

In addition, 17 US states already have anti-spam laws in force. However, these have not been widely tested in courts.

Legislation varies mostly in the following areas:

• Opt-in vs. out-out.
• Whether enhanced legal protection is given to equipment owners, allowing them to set policies about how their property can be used (i.e. opt out from having to process spam and bear the cost it involves). The two main spam bills now in Congress differ in this regard.
• Who can sue. Most laws allow both equipment owners (whose resources are used) and end recipients to sue.
• Antiforgery provisions. Most anti-spam laws emphasise that senders cannot falsify their identities or alter routing information to disguise a message's origin.
• Attempts to outlaw “spamware.” These proposals would make illegal the possession and/or use of software designed to send spam. This uncommon clause is highly controversial, as definitions of “spamware” have inevitably described popular programs usually used for legal purposes.
• Content provisions. A minority of spam laws describe what sort of content is forbidden.
• Labeling. Some laws permit unsolicited commercial e-mail if it's labelled as such. Such laws may run afoul of provisions barring “compelled speech.”

There have been only a few dozen cases against, possibly because of the lack of strong anti-spam laws. Plaintiffs have thus far relied on existing Federal and State laws to charge spammers with:

• Unauthorised use of resources
• Forgery
• Impersonation
• Trespass
• Fraud
• Computer crime
• Trademark infringement
• Illegal telecommunications solicitation

The Suespammers Project contains the texts of relevant laws, tactics for their use, case records, legislation news, commentary, and an active mailing list for discussions.

OUT-LAW.COM will soon provide an article on spam and the law, covering the US and European positions. If you would like to receive notification when the article appears, please e-mail [email protected].