Turning up the heat on spam
A law student at George Washington University wants senders of misleading and unsolicited messages to pay -- a move his targets have called extortion.
Eric Menhart created MaryCLE for the sole purpose of going after people who send questionable e-mail appeals. (Sun photo by Jerry Jackson / November 9, 2004)
He has interned for Congress, the Federal Trade Commission and the Joint Center for Political and Economic Studies, a Washington think tank. He's on the elections and technology committees of the American Bar Association's student division, and he started his own Web site company in college, which he sold for $21,000.
But his enterprising nature has led him into another pursuit that some people describe in harsh terms -- like "extortion" or "blackmail."
"People like [Menhart] should be locked up in prison for life," Paul Kroto wrote in a letter to a Montgomery County judge after Menhart sued him for sending what appeared to be illegal spam, the popular term for unsolicited advertising that floods e-mail accounts. "They are just looking to make a quick buck on innocent people," Kroto said.
Menhart, 25, is fighting spam by filing civil suits against the people and companies who allegedly send it. He has turned the crusade into a full-fledged business -- a limited liability corporation named MaryCLE, which stands for Maryland Legal Consumer Equity and is pronounced "miracle."
The company and a partner, an Internet service provider, have filed nine lawsuits in Maryland courts. The suits seek between $3,000 and $168,750 in damages from defendants in eight states, including Delaware, Illinois, Wisconsin and Tennessee.
Menhart is one of a handful of people around the country who are using recent state laws against spam to mount a cyber-vigilante battle against junk e-mail, which has grown into a fixture -- many say an annoying one -- of life in the digital age. It's also a problem for legitimate e-mail marketers, who are tired of being lumped in with those less scrupulous.
"The hallmark of legitimate e-mail marketing is that the company has asked and received your permission" to send it, said Laura Atkins, an e-mail marketing consultant and president of California-based SpamCon Foundation, which supports efforts to eradicate spam through filing lawsuits.
Companies should be truthful, send material only to clients who've asked for it and provide an audit trail, Atkins said. Such suggestions are similar to the requirements in the year-old law that regulates telephone solicitations.
Spam rarely follows those provisions. It clogs computer in-boxes with often fraudulent messages, bogs down personal and business equipment and often is offensive. Some estimate that spam makes up as much as 80 percent of electronic mail messages. Much of it is designed to part the naive from their money.
But while millions of people denounce spam, few do anything about it, in part because spammers are difficult to catch. They're even tougher to pin down than their older cousins: junk-mail senders and telemarketing operators.
"They're modern snake-oil salesmen that rely upon the [anonymity of the] Internet in being able to disappear," said Chris Hoofnagle, an attorney and associate director of the Electronic Privacy Information Center, a civil liberties research facility based in Washington. "It takes a more sophisticated litigant to track these defendants."
Chasing spammers is usually done by "the big guys," such as Internet service provider America Online Inc., state attorneys general or the Federal Trade Commission, Atkins said.
Microsoft Corp. is involved in more than 100 cases against spammers in state and federal courts. And this month, a Virginia court handed down the country's first felony spam conviction. Virginia's attorney general indicted defendants from North Carolina. The jury recommended nine years in prison for one spammer and a fine for his sister of $7,500.
Sentencing for the spam operators, which prosecutors described as among the top 10 in the world, is set for February. The illegal business was said to have generated nearly $1 million a month in revenue and used fake names to sell pornography and questionable products.
More than three dozen states, including Maryland, have spam-regulating laws on the books. But most were pre-empted by the federal CAN-SPAM Act, which took effect in January and doesn't allow individuals to sue for damages.
The federal law regulates how spam may be sent: Among other requirements, it must have an "unsub- scribe" option and contain warnings about any pornographic material. Language in the law says the act "supersedes" all similar state legislation unless those laws -- like Maryland's -- address the fraud aspect of spam.
"Eric is basically riding on a loophole in the CAN-SPAM Act that allows states to create greater protections against deceptive or fraudulent spam," Hoofnagle said. "It's going to take a wave of litigation like Eric's to bring spam down."
Two Maryland laws