Please Pass (On) The Spam

By Rachel E. Fugate and Susan Tillotson Bunch

I. Background

The Internet first materialized in 1968 and was developed originally by the Department of Defense.1 Since its humble beginnings in 1968, the Internet has experienced tremendous change. Today, the Internet is a "giant computer 'network of networks' which interconnects innumerable smaller groups of linked computer networks offering a range of digital information including text, images, sound and video."2 It is estimated that the Internet connects more than 159 countries and over 100 million users, with the amount of traffic doubling every 100 days.3

"The Internet is at once a world-wide broadcasting capability, a mechanism for information dissemination, and a medium for collaboration and interaction between individuals and their computers without regard for geographic location."4 It is easy to see why the Internet has been a godsend for advertisers. It provides an almost instantaneous, efficient and low-cost way for advertisers to reach millions of people.

Increasingly, advertisers are taking advantage of the global network to reach an enormous pool of potential buyers. There is no per-message charge for sending electronic messages over the Internet and such messages reach the recipient within minutes. "Thus electronic mail provides an opportunity to reach a wide audience quickly and at almost no cost to the sender."5 Companies increasingly are sending unsolicited commercial e-mail, also known as "spam" or "junk e-mail," to millions of Internet users. According to some critics, spam is the "cyberspace equivalent" of unsolicited advertisements in your mailbox or the "telemarketing calls that annoy [you] while [you] eat dinner."6

Obviously, however, not everybody is pleased with the proliferation of spam. Spam has proven to be a headache for its recipients and their Internet Service Providers (ISP).

When spam reaches an ISP for delivery to a subscriber, the subscriber must access, review, and either save, return, or discard the unsolicited mail. Until the subscriber processes the unsolicited message, the spam occupies part of the limited amount of storage space on an ISP's computer network.7

E-mail subscribers must take time at least to open and delete these unwanted e-mails. This may prove costly to Internet subscribers who pay for Internet service by the minute or by the hour. Significantly, spam occupies finite space on an ISP, thus slowing the system down, causing users to spend more time on the Internet, and sometimes even crashing systems.

The amount of spam has increased steadily. Through membership lists bought from major on-line providers or information available though the Internet, Internet marketing companies compile lists of Internet users. These Internet marketing companies then can send millions of unsolicited commercial e-mails to unsuspecting Internet users. Companies also buy lists of e-mail addresses and then target these addresses with unsolicited commercial e-mails. A company can buy a "list of as many as 25 million e-mail addresses . . ."8 The most notorious "spammer" is Cyber Promotions, sending advertisements to as many as 900,000 e-mail addresses twice daily.9

With the proliferation of unsolicited commercial e-mail, it is easy to see why Internet users have become frustrated with spam. In fact, spammers have been sent "flames", i.e. hate mail sent over the Internet, as well as viruses and e-mail bombs, meant to crash the recipient's system.10 So-called "cancelbots," have been employed to wipe out any message a particular user sends to different sites of the Internet.11

This openly hostile response to spam has spawned a nasty side effect: spammers mask the true origin of the e-mail by using the address of an innocent ISP or third party. Consequently, the flood of angry replies are mis-directed to the innocent third party, whose e-mail address the spammer falsified.

II. Spam Solutions

ISPs and Internet users have found some legal relief from spam. They have successfully sued spammers under the common law theories of trespass to chattels, tortious interference with contractual relations and the statutory remedies available under trademark law.12 However, because these theories often do not provide complete relief, state legislatures have stepped into the "anti-spam" arena. In response to the massive amounts of spam over the Internet, fourteen (14) states have passed laws restricting or regulating spam. These laws vary in application and degree, although none ban spam...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT