SECTION: LAWYERS AND TECHNOLOGY; Pg. B6

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HEADLINE: The Age of E-Mail Hits the FTC; Lawyers Fight Spam -- Via E-Mail

BYLINE: By Wendy R. Leibowitz

BODY:

HAND OVER that e-mail. Lawyers from White & Case and Kirkland & Ellis are jointly representing Staples and Office Depot in a suit filed in federal court in Washington, D.C., by the Federal Trade Commission to block the proposed $ 4 billion merger of the two office supply giants. The firms have demanded to see the e-mail messages about the merger that were sent to James C. Love, the director of Washington, D.C.'s Consumer Project on Technology, a privately funded group that opposed the merger.

Mr. Love says he forwarded only about a dozen messages to the FTC, but virtually all of his e-mail about the merger will be turned over to the defendants' counsel. "They're big firms; they leave no pebble unturned," says Mr. Love's attorney, David C. Vladeck, the director of Public Citizen Litigation Group, a public-interest law firm in Washington, D.C.

Mr. Love is the man who helped open the FTC to comments by e-mail from the public. About 2,000 e-mails were received before the agency decided to oppose the merger, says William J. Baer, the director of the FTC's Bureau of Competition, adding that he took about 600 home to read one evening. "A lot were very, very informative," he says. Of course, he adds, e-mail is easy to orchestrate: Some messages were from shareholders and employees, who were encouraged to write in about how the merger would benefit the companies.

Is it significant that public comment can now he submitted via e-mail? Perhaps this merger would have brought a great deal of comment anyway. It involves two well-known retailers that serve many people with home offices or small businesses -- just the types who are likely to understand and comment on how a merger would affect them.

"I see this in a broader context," says Gary L. Reback, of Palo Alto's Wilson Sonsini Goodrich & Rosati P.C., who has dealt with antitrust issues in the hightech industry. "I view the acceptance of e-mail comments as the FTC reaching out to people beyond the Beltway and to use their input to show the Washington establishment that consumers want antitrust laws to be enforced . . . This comes at a crucial time in the debate about the extent to which antitrust laws will be enforced. I applaud this."

Antitrust lawyers downplay the significance of e-mail. "The FTC has always accepted comments," says Michael L. Weiner, an antitrust partner at New York's Skadden, Arps, Slate, Meagher & Flom L.L.P. "I was involved with a deal that generated an equal number of comments," most of it orchestrated, he says. "There's grass-roots activism, and there's Astroturf."

Somewhere in between lies an invitation from a New York antitrust attorney who -- with his client, Anti-Monopoly -- is "giving away 5 percent of our lawsuit" to people who subscribe, via e-mail, to their Internet shareholder list, at www.law-mall. com/shares/shmenul.html

The Spam Wars

The great explosion of e-mail is concerned not, of course, with antitrust issues, but with making money. Unless you are counsel to direct mailers or use direct marketing yourself, little may irritate you more than "spam," unsolicited, mass e-mailings sent at little cost, usually to advertise something.

Spam does not technically violate any law. Two suits involving the king of spam. Cyber Promotions, have been resolved, one against America Online and the other with CompuServe as plaintiff. CompuServe Inc. v. Cyber Promotions, C2-96-1070, resulted in a thorough decision by Judge James L. Graham, of the Southern District of Ohio, who ruled that spam had trespassed on CompuServe's property because of the burden of repeated transmissions on its resources.

But the decision is not binding on all spammers, only on the parties involved, and it has not stopped spam one bit. For example, a mass spam from one site brought Netcom's Internet service virtually to a halt April 28.

The law needs to be updated to include e-mail, which does not fit under existing laws regulating telemarketers or unsolicited faxes. Enter state legislatures in California, Colorado, Maryland, Nevada and New York with bills to ban spam. Texts of the state proposals are online at www.jmls.edu/cyber/statutes/email/ But some think the bills were written without sufficient technical input or are legally overbroad, either infringing on free speech, by banning all "annoying" or unsolicited mail, or restricting legitimate 'Net enterprises.

Perhaps well-meaning legislators, too, need to make it easier for the public to submit comments. "Who is watching the rulemakers?" asks Lori K. Fena, executive director of the Electronic Frontier Foundation. In about a month, the EFF will post information on its site, www.eff.org inviting people to participate in proposals that, for example, would require the labeling of e-mail, so that commercial mail would be more readily identifiable, says Ms. Fena.

Ray Everett, an online service consultant in Washington, D.C., who participates in an e-mail discussion group about spam, e-mailed, "I find it instructive that a group of ISP administrators and technical experts are advocating a legislative solution to the unsolicited e-mail problem. Many of us who have been fighting spam have realized that technical solutions are inadequate.

"System administrators know that for every block we put up to protect ourselves or our customers, there are ten ways around them. The Internet was designed to reliably deliver information during nuclear war, so it's not at all surprising that spammers can find sneaky ways to deliver their product," he adds. "That's why we need a law."

Mr. Everett's group aims to persuade Congress to amend 47 U.S.C. 227, which presently forbids junk faxes, so it extends to e-mail. The text of their proposed amendment is at www.law.cornell.edu/uscode/47/227.html

Hyperlinks

The FTC's brief in the Staples/Office Depot suit is at www.ftc.gov The Consumer Project on Technology's site is http://www.cptech.org/ The Spam Boycott site is http://spam.abuse.net/spam/ Ray Everett's e-mail comment to the FTC, on the burdens e-mail places on a system administrator, is at www.smart.net/~everett/comment.html

Finally, the FTC is not alone in accepting e-mail comments. My address is wendyl@ljextra.com

LANGUAGE: ENGLISH

LOAD-DATE: June 3, 1997