"Spam" is the term used for unsolicited commercial e-mail. It closely parallels third class junk mail.

The public response to spam varies greatly. Some become hostile and shoot back threatening invectives at spammers. Others identify spam in the subject line of their e-mail messages, and simply delete these messages - unread - without any noticeable rise in blood pressure.

Is spam a Constitutional right or an unlawful parasite? The issue is now in the courts. However, the ultimate solution will more likely come from technology or from the policy decisions of Internet Service Providers.

A battle has been raging between the current leader of online services, America Online (AOL) Cyber Promotions. Cyber Promotions is an Internet advertising company and is paid by businesses to send bulk e-mail advertisements. Cyber Promotions sends solicited and unsolicited e-mail, but claims to target people that are likely to be interested in the particular ads.

Cyber Promotions sends out 1.3 million e-mail messages once or twice daily, with 900,000 of these going to AOL subscribers. AOL believes that this flood of spam to its subscribers will cause people to either leave AOL, or not sign up with AOL at all. Cyber Promotions had a problem because many of the AOL e-mail addresses it uses are no longer current. AOL's computer automatically "bounces" these undeliverable messages back to the return address found in the message.

The quantity of these bounced messages placed a heavy burden on the computer system of Cyber Promotions' Internet Service Provider. To solve this problem, Cyber Promotions inserted a fake return address in its e-mail which resembled an AOL address. All of the bounced messages returned to AOL's system, which placed a heavy burden on AOL's system.

AOL found the Internet Service Provider that was the source of these mailings. AOL collected the bounced messages and sent them in bulk to Cyber Promotion's Internet Service Provider. The messages brought the Internet Service Provider's system to its knees. Under threat from AOL of continued bombings, the Internet Service Provider stopped providing services to Cyber Promotions.

In April 1996, Cyber Promotions went to court for an injunction against AOL to stop these bombings. One week later, AOL also filed for a preliminary injunction to prevent Cyber Promotions from faking the return AOL address. AOL claimed that causing these bounced messages to re-enter the AOL system violated the Federal Electronic Communications Privacy Act as well as the Computer Fraud and Abuse Act.

Cyber Promotions consented to this injunction, which ended the need for the AOL bombings. The injunction forbids Cyber Promotions from "using a false, fraudulent, anonymous, inactive, deceptive or invalid return e-mail address, or using any other artifice, scheme or method of transmission that would prevent the automatic return to Cyber [Promotions] or its access providers of undeliverable e-mail sent to, or through, AOL's e-mail system." The injunction did not, however, prohibit Cyber Promotions from sending out spam to AOL subscribers. Cyber Promotions continued sending a high volume of spam. AOL then set in place a system which would block and return ALL mail sent by Cyber Promotions. Cyber Promotions was granted an injunction against AOL to prevent AOL from blocking Cyber Promotions messages and from interfering with the business relationships between Cyber Promotions and its Internet Service Providers. This injunction was vacated because the lower court entered a preliminary injunction without a proper hearing or making finding of fact.

The cases have been consolidated and a trial is scheduled for November.

Merely sending unsolicited e-mail, in itself, is not a crime and is not otherwise actionable. While many states prohibit unsolicited fax transmissions or regulate unsolicited telephone solicitation, there are no similar prohibitions or regulations relating to e-mail.

Nevertheless, the AOL case raises many interesting legal issues arising from the methods used for sending spam as well as the methods used for blocking spam.

AOL claims that Cyber Promotions' actions violate the Computer Fraud and Abuse Act, the Electronic Communications Privacy Act and the Virginia Computer Crimes Act. For example, the Computer Fraud and Abuse Act prohibits sending of a transmission to a computer system with reckless disregard of a substantial and unjustifiable risk that the transmission will cause damage to a computer system or cause the withholding or denial of the use of a computer system and such transmission occurred without the authorization of the persons or entities who own or are responsible for the computer system. Arguably, causing thousands of bounced messages to return uninvited to the AOL system might fall within the scope of this section of the Act.

Cyber Promotions responds that these statutes are primarily directed to computer hackers attempting to gain illegal access to electronic information or computer users who create computer viruses to take down third party computer systems. Cyber Promotions argues that these statutes target instances where the defendant intends to cause harm or damage to a third party's computer system.

AOL claims that Cyber Promotions has misappropriated AOL's computer system, since it is the AOL system that ultimately distributes the messages to the AOL subscribers. AOL claims that it has had to invest in additional hardware so that its system can accommodate the spam. Cyber Promotions argues that it is simply using the public entrance way to the Internet AOL has opened up for its members and that AOL assumed the risk of such e-mail when it opened this pathway into its system.

AOL claims that faking AOL as a return address was a trademark infringement and unfair competition. AOL claims that using an AOL address as the return address misleads people into thinking that the message came under the auspices of or with the approval of AOL. AOL further claimed that Cyber Promotions' actions dilute the value of AOL's service mark and tradename. Cyber Promotions argues it would be a violation of its First Amendment rights to allow AOL to block its messages. It claims that its messages are commercial speech. Generally, free speech is protected only from government action, not from private action. To the extent AOL is a private entity, it cannot be charged with violating another party's right to freedom of speech. However, Cyber Promotions claims that since the Internet infrastructure has a history of government involvement, AOL's actions amount to government action. Cyber Promotions is relying on "shopping mall" cases where the U.S. Supreme Court prohibited shopping malls from preventing leaflet distribution.

Cyber Promotions also argues that AOL's mail bomb actions have influenced Internet Service Providers to cease granting service to Cyber Promotions. Most recently, on October 18, Sprint Communications terminated Cyber Promotions' access. Therefore, Cyber Promotions claims that AOL has unlawfully caused providers to breach their service agreements and stop providing service.

At the end of the day, control of spam will likely come from use of blocking technology and the uniform and voluntary enforcement of policies developed by Internet Service Providers. The court system moves too slow to be an effective watch dog over the Internet. Additionally, as time passes, our perceptions of spam might change to the point where it travels virtually unnoticed, except by those who want to see it, similar to traditional junk mail. For now, businesses intending to use spam as a marketing tool should understand that they at least run the risk of creating a negative image for themselves with potential customers.