Unwanted commercial email or, as it is more commonly known, “spam,” is an ever-growing problem.

Current estimates are that upwards of 70 percent of all email is spam. This is up drastically from a couple of years ago, when the estimate was that about a third of all email was spam. The percentage of spam rises virtually every month.

My own personal experiences certainly attest to this. I have had the same personal email address for close to ten years, and I participate on a number of email listservs that are publicly-archived. Consequently, my email address seems to be on every spammer’s list in existence. Even so, until about a year or so ago the amount of spam I received was manageable. Now, however, I get literally thousands of spam emails a week–think of the wasted bandwidth! Most are caught by my ISP’s spam filter and I don’t have to deal with them personally, but a number do get through to me and waste my time as well as bandwidth.

Promising legal developments

Although the long-term trend of ever-increasing spam is discouraging, there have been some recent promising legal developments in the fight against spam. These include both civil lawsuits under federal and state anti-spam laws, as well as state level criminal prosecutions.

On the civil side, members of the Anti-Spam Alliance, a coalition founded in April 2003 and headed by the four major ISPs (Earthlink, AOL, Microsoft and Yahoo), recently filed their second set of lawsuits under the federal CAN-SPAM Act and other state and federal laws.

In these suits, the alliance members went after several types of spammers. Yahoo filed suit in a federal court in California against two named defendants, East Coast Exotics Entertainment Group, Inc. and Epoth LLC, accusing them of violating federal law by sending millions of sexually-explicit spam emails. Earthlink went after several “John Doe” defendants for sending illegal or deceptive email advertising low cost prescription drugs and low mortgage or loan rates.

Microsoft filed three lawsuits alleging that the defendants (one named and two “John Does”) spoofed the domains of Anti-Spam Alliance members to send spam related to herbal growth supplements, mortgage services, and get-rich quick schemes.

Finally, AOL has filed two federal lawsuits against “John Doe” defendants, one against a spammer peddling controlled substances, and another against a “spimmer” sending instant message and online chatroom “spim” (the instant messaging equivalent of spam).

Also on the civil side is an action brought by the Massachusetts Attorney General against DC Enterprises and its principal owner, William Carson, under the federal CAN-SPAM Act and the Massachusetts Consumer Protection Act. The complaint alleged that the defendants sent thousands of spam emails hawking low-interest mortgages, and that the bulk emails failed to provide a working “opt out” provision for recipients to use to prevent further emails, did not clearly identify the messages as advertisements, and used a non-functioning return address. The state settled with Mr. Carson, requiring him to pay a $25,000 fine and to be bound by an agreement to commit no further similar violations.

It is not entirely clear how much of a discouraging effect these lawsuits will have on spammers. For one, the Anti-Spam Alliance plaintiffs still need to locate many of the “John Doe” defendants in order for the case to have any impact on them. For another, the fine in the Massachusetts case pales in comparison to the amount of money a skilled spammer can make. Still, the cases have been widely publicized in both trade and mainstream publications and should serve to at least give spammers pause for thought.

On the other hand, the results of a recent state criminal prosecution may well stop some spammers in their tracks. In early November, a Virginia jury convicted two North Carolina residents on three felony counts each under the Virginia Computer Crimes Act’s antispam provisions.

The Virginia law is considered the toughest antispam law in the United States and was enacted in large part because of AOL’s presence in the state. Under the law, email senders can be prosecuted if they consciously alter an email header or other routing information and attempt to send either 10,000 messages within a twenty-four-hour period or 100,000 messages within a thirty-day period. A sender can also be prosecuted if a specific transmission generates more than $1,000 in revenue, or if total transmissions generate $50,000 or more in revenue. In order for the Virginia law to apply, the email must pass through the servers of Virginia-based Internet service providers. Potential penalties include fines and a prison term of one to five years per count.

Tough penalties

There were three defendants in the recent case: Jeremy Jaynes, Jessica DeGroot (Jaynes’ sister) and Richard Rutkowski. The three were accused of using fake Internet addresses to send more than 10,000 spam emails a day over a three-day period to AOL subscribers using AOL’s Virginia-based servers.

The emails touted items such as low-priced software pickers, a software product, and an offer to work from home as a “FedEx refund processor.” Prosecutors argued that Jaynes in particular had amassed a fortune in excess of $24 million from spam. (At the time he was initially charged last year, Jaynes, under the name Gaven Stubberfield, was listed as number eight on a list of the world’s top ten spammers maintained by Spamhaus.org.)

The jury acquitted Rutkowski but convicted both Jaynes and DeGroot. The jury’s suggested punishment for DeGroot was a fine of $7,500. Their suggested punishment for Jaynes, on the other hand, was much more severe. The jury recommended that he be sentenced to a nine-year prison term.

Jaynes remains in jail in Virginia pending sentencing, with bail set at$1 million; further, if released on bail Jaynes would have to wear a GPS leg monitor and could not have access to computers or the Internet. If the jury’s recommendation is followed by the sentencing judge–or if the sentence even comes anywhere close to the jury’s recommended sentence–some spammers, at least, should be frightened enough about potential consequences that they get out of the spam game.

Of course, Jaynes’s lawyers have vowed to appeal the decision, arguing that Virginia’s law is an unconstitutional hampering of free speech. The sentencing and appeals phases of this case will be ones to watch, but while it goes on for perhaps years the convicted spammer will have his personal freedom substantially eliminated. The results could end up significantly impacting the volume of spam in this country if success emboldens Virginia to go after more spammers.

Daniels Daniels & Verdonik, P.A. has been serving the legal needs of entrepreneurial and high technology clients for more than 20 years. Amalie L. Tuffin concentrates her practice in the representation of entrepreneurial and technology-based businesses, focusing on corporate, taxation and securities matters. Questions or comments can be sent to atuffin@d2vlaw.com