Way back in 1998, the U.S. Senate impetuously and unanimously approved an anti-spam bill authored by Sen. Frank Murkowski. A well-meaning attempt to get a handle on the problem, the law would have required all unsolicited commercial e-mail to be labeled as an advertisement in the subject line, to provide authentic contact information for the sender, and to give the recipient a way of opting out from receiving further messages. Anti-spam activists quickly pointed out, however, that the real effect of the bill would only be to endorse spam as a legitimate activity, and the Murkowski bill died without even coming up for a vote in the House.

Of course, the spammers themselves loved the Murkowski bill, and ever since they've treated it as if it really is the law. Even today, many bulk e-mailer's include what is called the "Murk" notice -- the part of the spam messages that says it's being sent in accordance with "S-dot-sixteen-eighteen" (I don't want to use the numerals themselves, because the Murkowski bill number is an excellent search term for spam filters) and implying that it's illegal to complain about it as spam. The fact that the Murk notices are usually attached to messages that violate some or all of the Murkowski provisions only proves the original point of anti-spam activists: Any law that forces spam recipients to opt out is going the leave door wide open for spammers, because there is no way the opt-out provisions can actually be enforced.

Congress seems to have learned its lesson on this issue, having rejected a number of similar bills since. As we know from the examples of UCITA and the "Super-DMCA" laws, however, special interests trying to get stupid laws passed in this country have an alternative venue. Yes, I'm afraid that over the past few months Murkowski-like laws have been introduced in many states and have actually been enacted in several: Arkansas (HB 1008), Arizona (SB 1280), Indiana (HB 1083), and Maine (LD 255). State legislatures in two more states -- Illinois (SB 611) and Texas (HB 1282) -- have passed similar bills that await their Governor's signature.

These laws all take the Murk approach of basically saying it's OK for spammers to send you unsolicited commercial e-mail, and that you have to try to opt out in order to get them to stop. And, of course, they won't stop, since none of these states are funding a multi-billion dollar anti-spam police force to actually enforce their new laws. Only the foolish will even try to opt out, since that's at best a futile exercise and often results in more spam. (Incredibly, the Illinois bill even lets the spammer make you call a toll-free phone number to opt out. So some sleazy scam artist with Caller ID gets to associate my e-mail address with my phone number? Good thinking, guys.) Sure, the laws say you can sue the spammers for not letting you opt out. Good luck. Very few spammers have been brought to justice under existing laws in states like California and Washington, and those laws are stronger and far better-crafted than these Murk clones.

The question that arises is where did these laws come from all of a sudden? While there is some variation, the laws share a lot of common language, so it's clear they were all cut from the same mold. But who is behind it?

Well, I can't say for sure, but the laws themselves provide a hint. A lot of the language they share seems to be devoted to providing immunity for "electronic mail service providers" and/or "interactive computer services" for whatever sins they may commit in terms of either sending spam or blocking it. So ISPs apparently get to do whatever they want, including harboring spammers (which even some big ISPs have been known to do) or blocking legitimate from competitors or others they don't like.

So is it possible the big ISPs are the ones we have to thanks for these pro-spam laws? Sources say that Microsoft and AOL lobbyists have indeed been working in the state legislatures in support of these bills. And that's really discouraging, particularly given all the things those companies have been saying recently about their anti-spam initiatives. If these Murk-y state laws are their idea of how to fight the spam plague, they are only going to make a bad problem all the more intractable.

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