A Spammer's Revenge

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Truth be told, companies like Omega aren't the real problem. Sure, Cruise.com sent Mumma unsolicited e-mails with a funky return address. And it sent 11 of them. But Mumma might have stopped future messages by clicking on a highlighted link, something he refused to do because, he says, "that just gets you on more spam lists." Maybe so. It's clear, though, that unlike some Nigerian scam artist bent on fooling e-mail filters, the company didn't try to hide its identity.

Still, dramatic increases in spam reported by Ironport and other e-mail-- security firms show that antispam activists like Mumma are overmatched, and the law is not helping. Since Nevada adopted the nation's first antispam statute in 1997, 37 other states have provided the legal basis for dinging spammers that send misleading e-mails. But in 2003 the feds trumped most of those laws by enacting a statutory mouthful, the Controlling the Assault of Non- Solicited Pornography and Marketing Act.

As its unfortunate acronym suggests, the CAN-SPAM Act did not so much prohibit spamming as show companies how to do it. That's because Congress bungled an attempt to balance two constitutional interests: a privacy right (freedom from unwanted e-mails) and a free-speech right (freedom to send advertising--a type of speech--by e-mail). Instead of guarding privacy by allowing commercial e-mail only when people asked for it, Congress favored the speech rights of e-mailers: consumers bear the burden of telling spammers to stop. Congress also said e-mail couldn't be "materially" misleading about its source, but other than that, spam away.

It was the word "materially" that tripped up Mumma. The appeals court ruled that bogus return addresses and header information didn't make e-deals "materially" misleading; after all, Mumma was able to track down the messages' source. The court's decision further weakens privacy in favor of free speech--at least for spammers. For their critics, the message is harsher: keep your mouth shut, or you could get sued.