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A Year After Legislation, Spam Still Widespread

Technology Seen as Best Deterrent

By David McGuire
Special to The Washington Post
Tuesday, January 4, 2005; Page E05

The nation's first law aimed at curtailing junk e-mail produced mixed results after a year on the books, inspiring some Internet service providers to take legal action against spammers but failing to stop the overall proliferation of the unwanted online messages.

Signed into law Dec. 16, 2003, the Can-Spam Act made it illegal to falsify the "from" and subject lines of e-mail solicitations. It also required senders of bulk e-mail to include a working "unsubscribe" link in their messages and to honor consumers' requests to be taken off mailing lists. The law doesn't allow individual e-mail users to sue spammers but it did open the door for state attorneys general and Internet service providers to mount a legal offensive.

America Online and others have filed suits to stop spammers, but many experts say technology, not litigation, is the key to reducing spam volume. (Business Wire Photo)

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The nation's big four e-mail providers -- America Online, Microsoft, Yahoo and EarthLink -- were among the most ardent supporters of the law, and wasted little time using the new provisions. In March, the four firms fired off a barrage of lawsuits targeting some of the most prolific spammers on their respective networks. The providers announced that they had filed another round of suits in October.

"We've seen great progress made," said Sen. Conrad Burns (R-Mont.), Can-Spam's original sponsor in Congress. "It's been a great first step, and as we look ahead it's important that the [government] utilizes the tools in place to . . . effectively stem the tide of this unwanted burden."

Still, despite all the courtroom activity and the media attention it generated, spam levels rose in 2004, by most accounts. At the beginning of 2003, spam accounted for about 50 percent of all e-mail, according to Postini, a Redwood City, Calif.-based anti-spam firm that scans about 400 million e-mail messages a day for its clients. By the time Can-Spam passed at the end of 2003, that figure had grown to roughly 75 percent. Throughout 2004, spam accounted for 75 to 80 percent of all e-mail, said Chris Smith, Postini's senior director of product marketing.

Denver-based MX Logic reported similar numbers, saying spam accounted for roughly 77 percent of the messages it scanned in 2004. In December 2003, the month before Can-Spam took effect, MX Logic reported that spam accounted for 67 percent of messages. MX Logic also tracked the number of spam messages that were complying with Can-Spam's extensive labeling rules and found that only about 3 percent of them met the law's requirements.

John Levine, author of "The Internet for Dummies" and operator of a small Internet provider in Trumansburg, N.Y., said the figures suggest that the new law has been largely ineffective in its chief purpose. "I haven't seen spam decline. I haven't seen spammers even make nominal efforts to comply with Can-Spam," Levine said. "They clearly don't think they'll be caught."

But Michael Osterman, president of Osterman Research Inc., a Black Diamond, Wash.-based research firm that specializes in the e-mail and instant-messaging industry, said the failure really isn't the fault of lawmakers. The underlying technology of e-mail makes it extremely easy for spammers to hide their identity, or commandeer the machines of unsuspecting computer users to send unwanted e-mail.

As a result, most of the e-mail industry has turned its attention toward technology, rather than litigation, as the primary means for combating spam, Osterman said.

"You've got to stop [spam] from getting to the customers' machines. If you're suing a spammer, you're going after them for damage that's already been done," agreed David Baker, vice president of law and public policy at EarthLink. "The biggest single element remains technology solutions. None of these companies are relying solely on litigation."

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