January 20, 1997 5:30 PM PST

Nevadans against spam

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A state best known for tolerating high-priced vices is losing its patience with junk emailers.

The wakeup call is from Nevada William Raggio, a Republican majority leader who introduced a state bill last Tuesday that would make it illegal to send unsolicited email in an effort to sell real property, goods, or services.

The bill comes as legislatures across the country try other ways to wrangle the wild bronco of the digital world. Already this year, national and state plans have been submitted to ensure privacy for online service users and tax breaks for Internet service providers.

Raggio isn't following another popular legislative tactic, that of attacking "indecent" material on the Internet. Instead his bill is dubbed consumer friendly and aims to stop annoying email spammers' sales messages. Legal experts who applaud the effort say despite Raggio's good intentions, the bill is fraught with problems.

For example, the bill defines email as: "An electronic message that is transmitted between two or more computers or electronic terminals. The term includes an electronic message that is transmitted through a local, regional, or global network of computers, regardless of whether the message is viewed by the recipient, stored for later retrieval, or printed on paper after receipt."

Legal experts say this definition is too broad to mean just email. It could also mean a sales pitch on a Web page or a newsgroup.

"It's not well written," said attorney Lance Rose, the author of the NetLaw legal guide for online service providers. "As usual whoever wrote the law has no idea about the media."

Another part of the bill has been called too narrow. The fact that it only applies to sales messages could be used as a loophole by creative marketers, Rose said.

"If somebody wants to spam a bunch of people they can still solicit people, by not asking them to buy anything. They can simply tell recipients to call a number for more information," he said.

As the American Civil Liberties Union claims with its challenge to New York's version of the Communications Decency Act filed this month, the Nevada bill could be overturned if passed because it violates the commerce clause of the U.S. Constitution, Rose said. The clause prevents states from regulating conduct outside their borders.

The bill's provisions do not apply to unsolicited email that is sent to a person who has a preexisting business relationship with the sender. This is an important factor, says Professor Jonathan Mallamud, a First Amendment and mass media law expert at the Rutgers University School of Law at Camden.

"Suppose there is a real estate broker who knows a particular client had been interested in buying a piece of property. If [there were no such provision and] he contacts that person six months later regarding a new piece of property that could be a violation," he said.

So far the battle against junk emailers has been fought in the courts.

America Online and Compuserve filed cases last year against Sanford Wallace, president of Cyber Promotions, a junk email operation that was soliciting their subscribers.

Wallace says he will gladly remove any of the 1.6 million people on his email list from that list if they so wish. But he says many want the email, and people on AOL are especially receptive. Until there's a law to prevent him from sending junk mail, Wallace will says he will continue to do so.

Email blocking has also found its way into the civil liberties arena.

Last month the ACLU threatened action against the state of South Dakota, charging that it violated the Constitution when it blocked email from an ISP customer who was forwarding mass email petitions to government employees about a controversy over sacred Native American sites.

 

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