Wednesday, July 30, 1997

Lawmakers target junk e-mail, raising constitutional questions

By DONNA MURPHY WESTON / Associated Press

Rich Koeler is sick of spam.

His beef is not with the processed luncheon meat, but with Internet junk mail - derisively dubbed "spam" - that constantly floods his virtual mailbox.

"I don't like it. It's unasked for and an annoyance," says Koeler, who is besieged by up to 10 junk e-mails a day.

He's got nothing against advertisers putting their messages on the World Wide Web for those who want to see what they're offering.

"But you should have to actively go find it, not have it forced down your throat," he says.

Koeler, of Brick Township, N.J., says he's tried almost every trick in the book to stop the junk e-mail - including changing his e-mail address - without success. Recently he tried a new tactic: forwarding the unwanted e-mail to the Federal Trade Commission.

Koeler, 41, reasons that his latest approach might prod regulators into taking some action.

He's not the only one looking to the government for a solution.

A recent flurry of congressional initiatives seek to place federal restrictions on unsolicited electronic ads, or banish them entirely.

A proposal by Sen. Frank Murkowski, R-Alaska, would require marketers to identify themselves, give their telephone number, physical and electronic address, and clearly label their messages as advertisements.

Sen. Robert Torricelli, D-N.J., has proposed a bill that would prohibit junk e-mailers from disguising their identity, from using automated programs to cull e-mail addresses from news groups and chat forums, and from continuing to send messages to those who ask to be taken off their list.

Rep. Chris Smith, R-N.J., is pushing for an all-out ban on spam. He wants to broaden existing telecommunication laws to include computers in a ban on transmission of unsolicited ads through telephone lines.

Tens of millions of junk e-mails are sent each day - industry officials say it costs about $200 to send 6 million messages - pitching everything from pornographic Web sites to software that would help users generate their own spam.

One of the largest bulk e-mailers, Philadelphia-based Cyber Promotions, sends as many as 20 million unsolicited ads daily, said President Sanford Wallace.

The FTC held a workshop on the issue in June and gave industry and citizens' groups six months to suggest ways to keep junk mail from clogging the Internet.

The agency also pledged to crack down on fraudulent e-mail - such as phony investment schemes, or sales pitches that dupe people into sending money or credit-card numbers and give nothing of value in return.

The challenge is balancing the privacy interests of users with the free speech rights of marketers, but none of the pending legislation does that well, said Dierdre Mulligan, a lawyer for the Center for Democracy and Technology. The center is supported by computer and communications companies and advocates civil liberties on the Internet.

The bills also fail to address the sheer volume of junk e-mails that can strain Internet service providers' resources and slow user access, she said.

Free-speech advocates warn against government restrictions on messages.

Reliable procedures for getting off e-mailing lists would be acceptable, said Ed Martone, executive director of the New Jersey chapter of the American Civil Liberties Union. But he said, "For the government to tell everyone, 'You can't do this because someone may object' is too broad."

As for unscrupulous e-mailers, attorney Peter Kennedy said there's already a good way to fight back: Sue them.

Kennedy, of Austin, Texas, represents a couple suing a college student for allegedly using their business e-mail address as a false return address on spam he sent to Internet users. Kennedy is posting documents from the case online to give other lawyers a leg up on similar lawsuits.

"Our purpose is to demonstrate that particularly egregious spammers can be dealt with under current law," he said.

Kennedy believes it would be unconstitutional to make mass e-mailing illegal.

"I would prefer to go the route of self-regulation."

Industry officials say they're confident they can come up with acceptable ground rules.

"When you have any new technology, you'll find there are people who'll push the parameters," said Chet Dalzell, spokesman for the Direct Marketing Association. "But all indications are that marketplace forces will drive development of technology to protect consumers without government regulation.

"Consumers need to have confidence when shopping online," Dalzell said. "The key is building consumer confidence. Without it, electronic commerce will not take off."