The United States Sentencing Commission (USSC) said last Tuesday that it sent Congress sentencing guidelines for the Can-Spam Act, short for Controlling the Assault of Non-Solicited Pornography and Marketing.
Among the newly minted guidelines are added penalties for people convicted of sending spam using someone else's computer without permission or obscuring the message's real origin.
The commission retained in the final substantive draft a controversial proposal to compare spam offenses to theft, fraud and property destruction for the purposes of sentencing.
That comparison riled some criminal defense lawyers and civil libertarians, who warned it could make spam sentences disproportionately harsh.
"Congress made it a felony, but it's not the kind of misconduct that causes what we typically consider as harm to victims," said Jack King, a representative for the National Association of Criminal Defense Lawyers. "The whole idea behind the federal sentencing guidelines was to make the punishment fit the crime. But this is just junk mail. This doesn't even kill trees."
Representatives for the USSC were not immediately available for comment.
Spam may not kill trees, but its opponents argue that junk e-mail is swallowing up oceans of people's time and corporate profits. As an early spam outbreak marked its 10th anniversary this week, one analyst estimated that dealing with spam cost the world US$20 billion in information technology spending and lost productivity on a yearly basis.
Major e-mail providers America Online, EarthLink, Yahoo and Microsoft last month filed six federal suits against people they accused of sending hundreds of millions of junk e-mails to their subscribers and account holders.
Most of Can-Spam's critics complain that the law doesn't do enough to curb spam, saying that it legitimises junk e-mail by spelling out how people can send it within the law.
Critics of the sentencing commission's fraud analogy argue that not only will those who are convicted under the statute face disproportionate sentences, but that spam trial courtrooms will become the scenes of baroque and contentious loss calculations.
"Because loss is a very difficult area to determine, the prosecutors, defense lawyers and judges are going to be spending more time and energy to resolve the appropriate calculations," warned Eric Goldman, an assistant professor at Marquette University Law School. "How are you going to measure loss here? What's appropriately counted as a loss? The sentences can grow very rapidly along with the loss calculations."
Congress has until the 1st of November to amend the guidelines before they become law.
