House Hearing on Spamming
Testimony of Randall Boe, Associate
General Counsel, America Online, Inc.
Committee on Commerce
United States House of Representatives
September 28, 1998
Mr. Chairman, members of the Subcommittee, my
name is Randall Boe, and I am Associate General Counsel of America
Online, Inc. In my position, I helped develop AOL's policy on
unsolicited bulk e-mail, and I head up AOL's litigation efforts
against junk e-mail. I want to thank you for the opportunity
to testify here today and I hope that our experiences in dealing
with spam can be of assistance to you.
AOL has been on the frontlines of the war against
spam for almost two years now. We have implemented some of the
most stringent anti-spam policies on the Internet and have deployed
a sophisticated set of anti-spam technologies. AOL provides
its members with mail controls—a feature that allows them to
take matters into their own hands and decide who they wish to
receive mail from. Finally, we have been waging a litigation
campaign against junk e-mailers and the individuals and companies
who seek to profit from this widely detested practice.
Over the past year, the amount of e-mail traffic
on AOL has continued to explode as consumers and business subscribers
discover the benefits of the online medium, and the utility
of electronic messages. We handle some 30 million messages a
day, approximately half of those are internal to our system,
with the other half coming from the Internet. You may be surprised
to learn that from 5 percent to 30 percent of our Internet e-mail
traffic is unsolicited bulk e-mail on any given day.
Junk e-mailers make their presence felt in a number
of ways. First, Internet users are often barraged with unwanted
mail advertising a variety of get-rich-quick schemes and other
products and services of questionable value. In addition to
annoying Internet users, junk e-mailers misappropriate the resources
of service providers, like AOL, to distribute their mail. It
is this element that makes junk e-mailing economically viable.
A junk e-mailer needs very little in the way of resources to
get started—they can purchase bulk e-mailing software and a
CD of internet e-mail addresses for a few hundred dollars. Junk
e-mailers can send literally millions of messages and still
recoup their investment with only a few responses. We believe
we would be a long way towards solving this problem if junk
e-mailers were forced to be accountable to the recipients of
their mail and bear even a portion of the costs associated with
In an effort to attack the problem, AOL has filed
suit against more than 40 individual and corporate junk e-mailers.
So far, we have obtained injunctions barring 16 of those spammers
from sending junk e-mail to AOL, we have reached out-of-court
settlements with several more spammers and are vigorously pursuing
damages claims, which we believe are worth millions of dollars,
against the remaining defendants.
Spammers employ a series of tricks designed to
defeat the technological counter-measures employed by AOL and
other Internet Service Providers and to avoid identification.
To that end, spammers use specially designed software to conceal
his or her identity, to put false information in the header
of the e-mail and to otherwise obfuscate or conceal other transmission
data that could be used to locate and identify the spammers.
These techniques are constantly changing and our legal efforts
against spammers become something of a cat and mouse game.
For these reasons, AOL is willing to work with
Congress and other branches of the government to see whether
legislation may help remedy this problem that may be beyond
the capacity of any single company or industry to address, a
problem that threatens the utility and appeal of the Internet,
and, ironically, may diminish its potential as a true mass medium.
Before I identify those areas in which we believe the government
could play a constructive role, however, let me make a few critical
points about the risk of over broad governmental remedies.
It is important to draw a distinction between
legitimate mailing practices on the Internet and illegitimate
activities that make up the bulk of UBE we see today. For example,
when AOL or the Red Cross or the American Cancer Society sends
email to its members, there a clear incentive to tailor the
message to the recipients’ preferences and to respond to recipient
requests not to receive additional emails. In addition, many
internet users find it useful and convenient to receive updates
from merchants with whom they have chosen to do business. But
in all of these situations, the recipient of the mail has the
ability to choose not to receive additional mailings from an
individual, organization or business. We know that spammers
are unwilling to honor a consumers choice not to receive junk
e-mail. In addition, legitimate businesses and organizations
will honestly identify themselves when sending their mail—while
junk e-mailers devote a great deal of effort to avoid identifying
Finally, the global nature of the Internet makes
it critical that Congress not attempt to ban unsolicited e-mail
completely. Such an approach would not only be unenforceable
but would also undermine the U.S. government's policy that country-by-country
content-based legislation is inappropriate.
Our campaign against junk e-mail has been predicated
on pursuing the illegitimate and unlawful practices that many
spammers employ—and are careful to distinguish between spamming
and solicited mail from reputable organizations and businesses.
We believe that government can help with the problems posed
by spam in a number of ways by choosing its approaches carefully
and wisely. We believe that restrictions based solely on the
content of the e-mail may raise First Amendment concerns. In
addition, given the elusive nature of junk e-mailers, and the
tremendous effort involved in actually locating them, there
is no reason to believe that they would comply with such a requirement.
Specifically, AOL believes legislative action
can be taken to:
· Outlaw the forging of sender identification
· Strengthen the Computer Fraud and Abuse Act,
making it a stronger weapon both against the transmission of
junk e-mail as well as against the development and distribution
of software that facilitates junk e-mailing; and
· Add statutory civil penalties and the opportunity
for ISPs to recover court costs and attorneys fees.
These steps, supported by the industry and internet
users will have real benefits for consumers. At the same time,
legislation of this scope will not jeopardize legitimate business
growth on the Internet and the attendant consumer benefits.
Unsolicited bulk email is a serious consumer and
business issue on the Internet. The continued growth of the
medium depends, in part, on ensuring UBE does not overwhelm
service providers' computer software and consumers' mailboxes.
AOL and the rest of the industry are committed to doing everything
we can to thwart the efforts of those who abuse the Internet
and ignore the clearly expressed desires of Internet users.
Again, thank you for inviting AOL to testify. I'll
be happy to answer any questions you or other members of the Committee