The "Controlling the Assault of Non-Solicited Pornography and Marketing Act", or CAN-SPAM Act, enacted by Congress and signed into law by President George W. Bush was supposed to put a lid on irresponsible spammers while allowing legitimate advertising to continue.

Instead, The New York Times reported Tuesday, a year after the act was implemented spam has gone from less than 60 percent of global e-mail to more than 80 percent, choking inboxes beyond the capacity of some personal computers.

Laws, especially federal laws reached through political compromise, sometimes go sour, and their shaky language either has to be interpreted by the federal courts, and ultimately the Supreme Court, or Congress has to revisit the law and give it another go.

But few federal laws have gone more awry than CAN-SPAM, according to its critics.

In 2003 the congressional "findings" that underpinned the CAN-SPAM Act recognized the growing problem. "The convenience and efficiency of electronic mail are threatened by the extremely rapid growth in the volume of unsolicited commercial electronic mail," the act said.

"Unsolicited commercial electronic mail is currently estimated to account for over half of all electronic mail traffic, up from an estimated 7 percent in 2001, and the volume continues to rise. Most of these messages are fraudulent or deceptive in one or more respects."

The main thrust of the law is to stop spammers from enslaving other computers, sometimes from great distances, right under the noses of their unsuspecting legitimate operators.

The act made it a crime for anyone "in or affecting interstate commerce or foreign commerce" who knowingly accesses a protected computer without authorization, transmits multiple e-mail messages from or through such a computer, uses such a computer to relay commercial e-mail with the intent to deceive recipients as to its origin, includes false information in the "header" or subject line of the e-mail, uses someone else's identity to register an e-mail account or sends "multiple commercial electronic mail messages" from a hijacked account.

Those convicted under the act - if they spammed past set numbers, such as 250,000 messages a year - would be assessed an unspecified fine and up to either three or five years in prison depending on whether it is a first or repeat offense. Those convicted also would have to forfeit any income from the scheme.

The act also made it illegal to continue sending spam to a recipient if that computer user "opts out" of the mailing, usually by clicking onto a link contained in the message.

Sounds tough, but the proof is in the pudding.

The Times story reports how even the mighty Microsoft Corp. has trouble cracking down on violators. One spammer, who provides off-shore facilities for clients trying to mass e-mail computers, didn't show up to answer a Microsoft complaint in a Los Angeles court and was assessed $1.4 million by default. He still hasn't paid, the Times said, and has no intention of giving up the business.

"There's way too much money involved," the spammer said.

The Times story said "if only 2,000 of 200 million recipients of a spam campaign - a single day's response rate for some spammers - actually go to a merchant's Web site to purchase a $50 bottle of an herbal supplement, a spammer working at a 25-percent commission will take in $25,000" for that day.

The take is even greater if a spammer infects a number of other computers, turning them into "slaves" to send bulk e-mail. The use of slave computers also makes it hard to trace a spam wave to its source.

One organization that predicted chaos even before the CAN-SPAM Act was passed is the Spamhaus Project, a non-profit group in Britain with 18 volunteers who monitor the spamming industry.

In 2003 Spamhaus noted that bulk e-mailing was banned entirely in the United Kingdom and said it "sees the introduction of the CAN-SPAM Act ... as a serious failure of the United States government to understand the spam problem."

The act "attempts to regulate rather than ban the practice of spamming," Spamhaus said. "We believe this is a serious mistake and that CAN-SPAM will succeed only in increasing spam volumes and the numbers of spammers."

By letting the industry know that spam was legal in some form in the United States,this county "is inviting a tsunami of spam from Asia," Spamhaus said at the time.

"By requiring that American citizens read through and respond to every spam to 'opt out' of ever-more mailings they did not opt in to, we also believe that millions will find their addresses sold on as 'people who read spams' and will find themselves endlessly on yet more lists."

Spamhaus - which itself has been the target of massive "spoofed" e-mail attacks by enslaved machines in an attempt to shut down its Web site - estimates 60 percent of illegal bulk e-mail is sent through infected slave computers.

Months after it first predicted disaster, Spamhaus said its predictions were coming true. In April 2004 the organization said the majority of spam illegal under the U.S. act "is sent by known U.S.-based spammers through computers which have been deliberately infected with viruses by Russian spam gangs, who in turn sell lists of 'freshly infected proxies' to the U.S.-based spammers."

The purchasers of the lists are committing criminal acts in a number of countries, Spamhaus said, and are the kind of spammers U.S. law enforcement is trying to zero in on since CAN-SPAM went into effect.

Instead of slacking off, however, spam "soared to new heights" under the act as spammers moved off-shore, mainly to China, while other spammers stopped using proxies. "Instead of being stopped by CAN-SPAM," Spamhaus said, "large professional spammers ... actually invested in even more spamming hardware, now sending more spam than ever, all now 'legally' under U.S. law thanks to CAN-SPAM."

The organization does give some praise to the Federal Trade Commission for cracking down on some mass spammers.

But a look at FTC enforcement actions shows the commission far more concentrated on stopping unsolicited telemarketing - a successful operation for the commission -- than elusivespam.

Tuesday the commission released a list of its top 10 consumer complaints of the past year. Identity theft leads the list. Spam doesn't even get a separate category.

And how rapidly is the FTC issuing rules for implementing CAN-SPAM?

Last month the commission said it has postponed the effective date of rules provisions it adopted in December to determine whether the primary purpose of an e-mail message is commercial -- something required under the federal act.

The FTC originally planned to make the provisions effective Feb. 18, but the Office of Management and Budget has determined that the provisions constitute a "major rule" under federal law, and therefore they cannot take effect until at least 60 days after they are published in the Federal Register and submitted to Congress.

The rules provision will go into effect March 28, the FTC said.

Meanwhile, spam remains pervasive and invasive. Even corporate computer systems, with the most sophisticated of filters, are sometimes unable to keep lurid sexual come-ons or Nigerian money scams out of company inboxes.

All rights reserved. � 2004 United Press International. Sections of the information displayed on this page (dispatches, photographs, logos) are protected by intellectual property rights owned by United Press International. As a consequence, you may not copy, reproduce, modify, transmit, publish, display or in any way commercially exploit any of the content of this section without the prior written consent of United Press International.

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