December 16, 1998 Web posted at: 11:40 PM EST by Ed Foster, InfoWorld columnist

From...

(IDG) -- So far, I've been a real pessimist when it comes to the potential for legislation to help us with the junk e-mail problem. But although I'm still not holding my breath in expectation of anything constructive coming out of the U.S. Congress, there are reasons for hope elsewhere.

Earlier this year I wrote several times about the Murkowski amendment, a well-meaning but misguided attempt by the U.S. Senate to address the spam problem. The first piece of good news is that the amendment (S.1618, Section 301, which spammers used to justify their junk e-mail) was dropped from the House version of the phone slamming bill.

"I suppose it's theoretically possible it could be revived in joint conference between the Senate and House, but I don't think that's going to happen," says John Mozena, co-founder of the Coalition Against Unsolicited Commercial E-mail, an anti-spam group that campaigned vigorously against the amendment. "The Internet spoke very clearly on this issue, and I'm sure they'd rather not open the floodgates again."

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That Internet users were able to make their voices heard in this case might be the greatest reason for optimism. And although no final solutions are on the horizon, an experiment in the state of Washington is showing some promise. Last spring, Washington enacted one of the first laws in the country aimed at curbing unsolicited commercial e-mail, and in the fall the Washington state attorney general's office filed its first lawsuit against an Oregon business accused of violating the new law by sending bulk e-mail to Washington residents promoting a "How to Profit From the Internet" book.

Washington's law does not prohibit unsolicited commercial e-mail per se, but makes it illegal to send commercial electronic messages that contain misleading information in its subject line, use a third party's domain name without permission, or misrepresent their point of origin. The vast majority of spam does one or all of these things.

An important point about the Washington law is that, although the state can bring actions against offenders as it is doing in the Oregon case, so can recipients of spam messages if they are Washington residents. Message recipients who bring a successful civil action can be awarded $500 or actual damages, whichever is greater, plus attorneys' fees.

"I know of several successful actions already by users under the law, and I think we're going to be seeing a lot more," says Gary Gardner, executive director of the Washington Association of Internet Service Providers, which is co-sponsoring an online registry at its Web site, www.waisp.org, where Washington residents identify themselves as being unwilling to receive unsolicited commercial e-mail. To avoid violating Washington's law, spammers have to submit each e-mail address from their list to be cross-checked against the registry.

Another attempt to deal with the junk e-mail problem, which seems even stronger than the Washington law, goes into effect in California on Jan. 1, 1999. AB 1629 takes a broader aim in trying to eliminate unsolicited commercial e-mail in general by allowing California ISPs to publish a notice forbidding the use of their equipment to send or deliver spam. Violators can be sued.

"We think it's a much better bill than anything that's been considered at the federal level," said Bill Woodcock, the president of Zocalo, a Berkeley, Calif., ISP, and representative of the Consortium of Internet Service Providers, in testimony before the California legislature. "It's the first one that's good enough to get support from the Internet industry."

Some feel the California law may take too broad an approach.

"We don't see 1629 as a big free speech threat as much as it's just not a very well written law," says Stanton McCandlish, program director for the Electronic Frontier Foundation, who criticizes the law for targeting all types of commercial e-mail.

McCandlish says he feels 1629 and other state laws are unlikely to be upheld because they clearly step into the federal job of regulating interstate commerce.

Uh, oh. That sounds like we're going to find ourselves back in Washington, D.C. Before we get all pessimistic again, though, even McCandlish agrees that some of the anti-spam measures in the states appear more workable than federal efforts have so far. Although he hasn't been able to study it in detail yet, he points to a new Virginia law that appears to focus more specifically on bulk e-mail. So maybe that's our final reason for optimism: Even if the state laws don't stand, Congress will have better ideas to work with next time.

Ed Foster has been writing about technology and consumer issues for nearly 20 years. Send him gripes about computer companies and products at gripe@infoworld.com or call (800) 227-8365, Ext. 7710.