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Attorney General backs anti-spam measure

October 21, 2002
By: Jason McLure
State Capital Bureau

JEFFERSON CITY - Attorney General Jay Nixon has announced plans to counter the tidal wave of unsolicited commercial messages flooding Missourians' e-mail accounts.

Nixon said he will work with Rep. Chuck Graham, D-Columbia, and Sen. Wayne Goode, D-St. Louis County, to draft legislation creating a "no-spam" list similar to the state's telephone no-call list limiting who telemarketers may call.

"Anyone who has e-mail will tell you spam is a four-letter word," Nixon said. "Spammers are uninvited house guests and it's time for Missourians to have the option to protect their privacy."

The proposed legislation would allow Missourians to put their e-mail address into a database overseen by the Attorney General's office. Senders of unsolicited e-mail would be subject to state fines if they spam addresses on the list.

Graham said the problem of spam is compounded by the fact that much spam takes the form of fraudulent get-rich-quick schemes and advertisements for pornography. Many of these end up in the mailboxes of children.

According to the marketing firm The Radicati Group, an estimated 2.3 billion unsolicited messages are sent daily. The firm projects that number to increase sixfold by 2006.

However, some business groups are wary of increased Internet regulation. Gary Marble, president of Associated Industries of Missouri, said that in a year in which Missouri has lost 56,000 jobs, the state should be careful about applying new restrictions on business.

"Anything that the state of Missouri does that says 'thou shalt not' often has repercussions to our state businesses and industries," he said. "They then have a competitive disadvantage with someone in another state."

Nixon said his office intends to prosecute out-of-state as well as foreign spammers as vigorously as local ones. He cites his office's success prosecuting both local and out-of-state telemarketers.

However, he admits the complexities of the Internet can make tracking, finding and prosecuting foreign spammers a difficult task, but said the "no-spam" law will be a step in the right direction.

Nixon said the bill would also need to include additional funding for his department to cover the increased staff needed to monitor the law, but did not address how much that would be.

Jerry Cerasale, a spokesman for the Washington, D.C.-based Direct Marketing Association, said the problem of spam is better addressed at the federal rather than local level.

"The problem with every state having a list is it's confusing because [with e-mail] you don't know someone's location," he said.

Cerasale pointed out that 20 percent of street addresses change every year, and that if someone moves to a new state and keeps his e-mail address, he will begin getting new spam all over again.

"Clearly you're better off doing something at the federal level," he said.

Cerasale urged the Attorney General to take swift action against fraudulent and misleading spammers who are damaging the reputation of legitimate businesses that market themselves on the Internet.

The National Conference of State Legislatures reports that 26 states currently have anti-spam laws, and new legislation has been introduced in at least 30 this year alone.

Missouri's proposed "no-spam" law would be among the most sweeping. Some state laws have focused on requiring spammers to include the characters "Adv" for advertisement or "ADV:ADLT" if the message includes pornographic or other adult related content. Others have sought to regulate fraudulent or misleading messages.

State regulation of Internet spam has been challenged legally because there are questions as to whether it constitutes interstate commerce, an area of regulation the Constitution sets aside for the federal government.

As to possible free speech arguments, Nixon said court decisions which have upheld the right of salesmen and religious groups to go door-to-door soliciting are not relevant to spam cases.

Nixon hailed the telephone no-call list as highly successful, and noted that it has grown to include nearly 1.1 million residential phone numbers, representing 2.7 million Missourians.

He noted that to date the Attorney General's office has collected $645,000 in fines for violations of no-call. This includes a recent fine of $20,000 given to Deluxe Carpet of Kansas City for telemarketing carpet cleaning services to numbers in the no-call database.

Nixon said the no-call list has not only cut down on annoying telemarketing calls, but fraudulent ones as well. He said telemarketing fraud complaints have dropped by half since the program's initiation.

However, the no-call list has been criticized for loopholes which allow credit card and telephone companies to solicit business, but prevent other industries from doing so. Graham said he will work with legislators to prevent such loopholes from being written into the "no-spam" bill.