Sunday, December 21, 2003

Deep within the text of the antispam bill signed by President Bush last week is a clause that could allow ordinary citizens to cash in on the prosecution of those who send mass amounts of fraudulent e-mail advertisements.

The Can-Spam Act, which goes into effect Jan. 1, empowers the Federal Trade Commission to create a bounty system allowing anyone to receive 20 percent of any money collected from spammers they help catch.

Some antispam advocates said the system would create an army of people searching for spammers, thus easing the burden on the FTC and law enforcement agencies. But to others, it is a useless effort that could lead to chaos and vigilantism.

Unsolicited commercial e-mail, or spam, makes up nearly 60 percent of all e-mail sent worldwide, and costs businesses more than $10 billion annually, technology analysts say. Much of the spam is fraudulent or misleading, and routed in a way that makes the sender difficult to identify. The Can-Spam Act bans the most fraudulent forms of spam and illegalizes commercial e-mail to anyone who has asked not to receive it.

Violators of the Can-Spam Act may be fined a maximum of $6 million and receive up to five years in prison.

The bounty system is the brainchild of Lawrence Lessig, a law professor and founder of the Stanford Center for Internet and Society. Earlier this year, he said he would resign his job if a national law featuring a bounty system did not “substantially reduce the level of spam.”

Rep. Zoe Lofgren, California Democrat, and Sen. Jon Corzine, New Jersey Democrat, worked to insert the bounty provision into the Can-Spam Act.

The law says the FTC has nine months to issue a report to Congress proposing a reward system. The FTC will have full authority to determine how the system will work and what information e-mail users will need to provide in order to collect reward money.

“We’re going to do an objective study and look at all the angles in depth,” said FTC staff attorney Brian Huseman.

The FTC also will consider requiring marketers to label their advertisements with an “ADV” or other abbreviation in the subject line. Mr. Lessig has said that requirement would make the bounty system more workable, but critics say it would place a heavy burden on honest marketers. The FTC is required to create a label system within 18 months, or report to Congress any concerns that lead it to recommend against the system.

Some antispam advocates said allowing individuals to sue spammers would be more effective.

“[A bounty] would not, in any way, provide the kinds of deterrents a private right of action would provide,” said David Kramer, a lawyer with the Palo Alto, Calif., firm of Wilson Sonsini, Goodrich and Rosati.

Mr. Rosati has been involved in crafting antispam legislation at the state level.

Some antispam advocates said a bounty system is intriguing but that spam is so unpopular that an incentive is not needed.

For years, spam “blocklists,” such as and Spamhaus, which research and post information about suspected spammers, have helped identify some of the most egregious senders of junk e-mail.

Most are operated by volunteers, with donated computer equipment and bandwidth.

Some spam analysts cautioned that monetary rewards could lead to a lot of false leads, because few individuals have the expertise or technology needed to find the identities and locations of spammers.

“There’s obviously a lot of people who are rabidly antispam,” said Andrew Lochart, director of product marketing for Postini, a company that offers services to protect companies against spam.

“Certainly there have been situations where there’s a case of shoot first, ask later.”

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