- The Washington Times - Friday, February 6, 2004

Unwanted e-mail continues to increase despite the enactment of the nation’s first federal law against spam a month ago.

About three-quarters of all e-mail sent in January was spam and nearly two-thirds of that total was sent in a way that makes the new Can-Spam Act difficult to enforce, some e-mail security companies say.

Postini, a Redwood City, Calif., firm that filters e-mail for companies, reported that three-quarters of the 4 billion messages it processed in January were spam. Brightmail, a San Francisco company that filters e-mail for large companies, noted that spam made up a record 60 percent of the 85 billion messages it scanned in January.


Analysts estimate that spam, or unsolicited commercial e-mail, costs businesses as much as $10 billion in services and lost productivity a year.

State attorneys general, the Federal Trade Commission and Internet service providers have been trying to fight spammers for years, with limited success. The Can-Spam Act, the first federal legislative effort to curb spam, bans the most deceptive practices by spammers and allows for stiff penalties and jail time for the worst offenders.

The Federal Trade Commission and the Department of Justice have yet to use the law to bring an enforcement action against a spammer, though they said investigations are ongoing.

“It’s a matter of when, not if,” a spammer is caught, said Michael Goodman, a staff lawyer with the FTC. “It’s not like we’re back-burnering this.”

Building a case against a spammer takes time, Mr. Goodman said, because the worst offenders usually create multiple barriers to protect their identities.

British Internet security company Messagelabs has said that more than 60 percent of the spam messages it sees come through vulnerabilities in computers known as “open proxies.” These vulnerabilities, usually created by a computer virus or worm, allow spammers to send mass amounts of unwanted e-mail without being identified.

Supporters of the law said e-mail users should be patient, and that the new law will show its strength once the FTC announces an enforcement action.

“Once that starts happening, we’ll see some results,” said Jennifer O’Shea, a spokeswoman for Sen. Conrad Burns, Montana Republican and lead sponsor of the legislation. “It’s the time it takes to build a case.”

But critics said that, if history is a guide, enforcement actions will not stop spammers.

“We’ve had actions against spammers. We’ve had them for the last seven or eight years. It hasn’t made a dent,” said David Kramer, a Silicon Valley, Calif., lawyer who has consulted on spam legislation at the state level.

The only type of action against spammers that will work, Mr. Kramer said, is lawsuits from individual victims of spam. The Can-Spam Act does not allow for a right of private action against spammers, and pre-empts a measure in California that would have done so.

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