Federal antispam law to be put to its first test

Four months after the passage of a federal law that sets limits on unwanted ''spam" e-mails, the federal government is putting the statute to work.

The US Justice Department yesterday filed criminal charges against four people for allegedly using e-mail to sell fraudulent weight-loss products. Court papers identified the four as Daniel J. Lin, James J. Lin, Mark M. Sadek, and Christopher Chung, all believed to be living in suburban Detroit. The four also face civil lawsuits to be filed by the Federal Trade Commission.

The four are charged with mail fraud and violation of the Federal Trade Commission Act, which bans unfair and deceptive business practices. They are also the first people to face criminal charges under the new CAN SPAM Act, a law enacted late last year to reduce the billions of unsolicited e-mail ads received by Internet users. The maximum penalty for violating the new antispam law is imprisonment for five years and penalties in the millions of dollars depending on the nature of the violation.

Prior to the passage of CAN SPAM, bulk e-mailers had been prosecuted for mail fraud in federal courts. But CAN SPAM is the first federal law to ban some common spamming practices. For instance, spammers routinely modify their e-mail messages to conceal their identities. They also bounce their messages through unprotected ''open relay" computers to further conceal themselves. The Detroit e-mailers are accused of engaging in both these practices.

''These people were sending spam e-mails to at least a million people," said Gina Balaya, a spokeswoman for the US Attorney's office in Detroit.

Further details are to be detailed at a joint Federal Trade Commission-Justice Department news conference set for this afternoon.

Supporters of the antispam law hailed its enactment late last year, saying that it gives law enforcement officials a powerful new weapon against junk e-mailers.

The law also allows Internet service providers to sue spammers, whose messages threaten to overwhelm their e-mail networks. In March, Time Warner Inc.'s America Online service, EarthLink Inc., Microsoft Corp., and Yahoo Inc. filed six civil lawsuits targeting hundreds of Internet spammers.

But some antispam software makers and e-mail service providers and users say that since CAN SPAM took effect in January, the junk e-mail problem has only gotten worse.

''We're actually seeing more spam now than we were seeing at the beginning of the year," said Eric vanBok, senior manager of messaging technologies at Boston's Houghton Mifflin Co. ''We've actually seen a 49 percent growth of inbound mail since Feb. 12," said vanBok. ''The majority of that is spam."

Some antispam specialists blame the law itself. The law does not ban unsolicited e-mails but only sets guidelines for sending such messages. For instance, mailers may not conceal the source of their messages; they can't relay spam through someone else's computer without the owner's permission; they can't ''harvest" e-mail addresses from Internet sites and send mail to these addresses; they must attach warning labels to sexually explicit messages; and they must stop sending mail to anyone who requests that they stop.

Critics say that spammers can comply with these regulations and keep right on sending out billions of unwanted messages.

''You can spam as long as you follow these five basic steps," said Paul Judge, chief technology officer of Ciphertrust Inc., an Alpharetta, Ga., maker of e-mail software.

Even if e-mailers offer to remove people from the list as the law requires, many don't ask because it is widely believed that any response to spammers encourages them to send more spam.

Scott Richter is an example of an e-mailer who now works within the new law. His company, OptInRealBig.com, is a major e-mail marketing firm considered one of the world's biggest spammers by antispam specialists. But Richter insists that his company operates in full compliance with the law.

''We do follow the law," said Richter. ''We're aboveboard."

Steve Linford, who runs the London-based antispam service Spamhaus, agrees that most of Richter's mailings are probably legal.

''He sticks right to the edge of the CAN SPAM Act," Linford said. He predicted that other big spammers will stay in business by following Richter's lead and cleaning up their business practices.

Other critics say the biggest spammers will get around the law by moving their operations to other countries where US law doesn't apply.

''The real professional spammers know that they can't get caught because they can hide," said Andrew Lochart, director of product marketing for Postini Inc., an e-mail management firm in Redwood City, Calif. ''If they feel a little heat, they'll move it offshore."

Some e-mail users, like Houghton Mifflin's vanBok, say only technology can solve the problem. ''We need to fundamentally redesign the e-mail infrastructure," he said.

Indeed, a number of Internet companies and independent engineering groups are debating several proposed technical changes to the e-mail system. For example, they want to make it impossible for e-mail senders to use fake return addresses to hide their identity.

There is some hope that prosecuting the most egregious spammers will scare some others out of business. Despite his doubts about antispam legislation, Judge thinks the threat of lawsuits and jail time might do some good.

''It makes people think twice before they carry out that act," he said. ''Right now, people who are spammers only have to think about, 'Can I get my mail past this filter?' Now they have to think, 'Will I get caught?' "

Hiawatha Bray can be reached at bray@globe.com.