Spammers could be charged as racketeers if a bill introduced into the U.S. Senate this week goes all the way to federal law.
Sen. Bill Nelson (D-Florida) introduced a bill May 13 to let the Racketeer Influenced and Corrupt Organizations (RICO) law apply to some spammers and their doings, including the prospect of asset forfeiture and liability for civil lawsuits.
The primary goal of the Nelson bill, his spokesman Dan McLaughlin told ITWorld.com, was to let spam victims collect damages, something neither of two previous anti-spam bills allowed. A Federal Trade Commission anti-spam forum earlier this month called for laws to allow such civil suits, ITWorld.com said.
But Chicago adult industry and First Amendment attorney J. D. Obenberger warned that the danger in applying RICO to even some spammers' activities could be punishment worse than the actual crimes, a danger often discussed when RICO is applied in cases other than those involving its original target, organized crime.
Nelson's own statement after introducing the bill said it was aimed at e-mail messages sent by those seeking money illegally or engaging in other illegal acts. "Using the RICO law will let us hit the bad guys where it really hurts -- in the pocket," the statement said. "And the more firepower we give victims and prosecutors, the better."
Nelson's proposed law would apply to spam using false routing information or fake or forged return e-mail addresses as well as spam sent despite the recipients' previously asking to opt out, ITWorld.com said. It would also apply to those harvesting e-mail addresses for spamming. Maximum penalties proposed under the bill would be five years in prison and fines as well as civil lawsuits.
"If you send me something, you get one chance. If I say, 'take me off the list,' that's it," McLaughlin told ITWorld.com. "If you send a million e-mails, it'd be our opinion that each one of those e-mails would be a separate act, and you'd have a million violations."
AVN Online. "The RICO statutes were created and adapted to deal with organized crime, and to deal severely with patterns of ongoing criminal behavior. I think this is a case in which the application of RICO's penalties would result in a disproportionate punishment in view of the seriousness of the social problem that spam presents."
He said that because spam does not respect state lines, regulation at the federal level makes sense. It also makes sense "that commercial solicitation spam identify its sender accurately and contain an effective opt-out mechanism," he told AVN Online.com. "It makes sense to establish a national registry of persons who do not want to receive commercial solicitations. It makes sense to protect the privacy of the Internet citizen with the right to bring an action in court for violations of those safeguards."
But Obenberger who told AVN Online.com earlier this year that those who spam on behalf of adult Internet content "urinate in the well we all drink from," warned that a bill like Nelson's could pose just enough danger of crossing the First Amendment.
"Any legislation must preserve inviolate the right to anonymous speech on the Internet for religious, political, and personal speech because anonymous speech is an important tool in the preservation of a free society," he said. "We must be wary against any proposal that would tend to burden or prohibit anonymous bulk mailings of email intended to cause political, religions, or social change, or which would have that result."
