A modest proposal to end spam

WASHINGTON--It's not every day people bet their jobs on the effectiveness of a law--let alone an antispam law. Many U.S. states have already enacted such e-mail laws, and spam keeps flooding in. But that's exactly what Larry Lessig, a Stanford University law professor and one of the most prominent liberal voices online, has done. A few months ago, Lessig made an unusual wager: If Congress enacts an antispam law that offers bounties for the reporting of spammers, and the law fails to "substantially reduce the level of spam," he will resign from his dream job at a top law school.

Lessig is either extremely reckless or incredibly confident. He has asked me to be the judge of whether such a law proves effective in reducing the deluge of unsolicited e-mail that's clogging our in-boxes, snarling mail servers and driving Internet service providers to distraction. I've accepted.

At an event Monday to unveil just that kind of antispam bill, Lessig will have a chance to put his career where his mouth is. He will join U.S. Rep. Zoe Lofgren, D-Calif., to highlight new legislation, which goes by the awkward name of "Restrict and Eliminate the Delivery of Unsolicited Commercial Electronic Mail Spam Act," or the REDUCE Spam Act.

Lofgren's plan won't give everyone who gets spammed new rights to sue (although spam victims may already may have some rights under state antispam or other laws). Instead, it states that people sending unsolicited commercial e-mail must label it with "ADV:" in the subject line or run the risk of being sued by the Federal Trade Commission. If you are the first to report an unlabeled spam-o-gram to the government, you will get a bounty of "not less than 20 percent" of the fine the spammer pays, assuming it can ever be collected.

ISPs also can sue in federal court. They have the choice of asking for their "actual monetary loss incurred," or up to $10 for each unlabeled spam message. ISPs are defined broadly, meaning that if you run a Linux server and give out e-mail accounts to your friends and family, you'd probably qualify as a spam plaintiff.

It's a great idea in theory. But I doubt it will work in practice. If Congress even gets around to enacting it, instead of some of the competing antispam bills, I think Lessig will have to kiss his current job goodbye.

Here's why: Lessig has done laudable work on copyright laws. But like other lawyers, he is too quick to assume that the politicians in Congress can solve all of our problems by waving their hands and voting for new laws. Unfortunately, spam isn't quite that easy to get rid of.

For one thing, an increasing percentage of it comes from overseas, and you can be certain that offshore bulk mailers will gleefully thumb their noses at Congress. Ken Schneider, chief technical officer of antispam company Brightmail, estimates that 30 percent to 50 percent of the spam his company tracks comes from outside the United States. "It's a big number," Schneider said. "It's a global economy, and spammers are certainly taking advantage of it."

Everyone would start quarantining ADV-tagged mail as rigorously as Hong Kong is isolating suspected SARS patients.

If Lofgren's bill is enacted, U.S.-based spam operations are likely to shift operations elsewhere, just as gambling sites set up shop in the Caribbean.

There's one way, I suppose, a legal solution could work: If we had an international antispam treaty accepted by every nation. Australia recently started talking about just that. But treaties can take a decade to negotiate, ratify and implement. And spam is a problem today. That's why I believe, as I wrote last fall, that technical countermeasures and suing spammers for the violation of long-standing common law rights are still the best short-term responses to spam.

Plus, there are some downsides to Lofgren's bill. Here's one: It would require anyone sending a commercial e-mail to someone they don't know--relating to a service, sale or physical product--to slap an ADV label on the subject line.

A good idea? Not quite.

One of its unfortunate consequences would be to say that anyone who sends an unsolicited e-mail résumé to a prospective employer must use the ADV label. "It would cover freelance writers pitching a story or photographers pitching a photo," said Eugene Volokh, a law professor at the University of California, Los Angeles. "If someone wants to pitch his new book to an academic discussion list or to some friends, then to keep his nose clean, he's got to mark it with an ADV...It puts honest law-abiding people at a substantial disadvantage whenever they send in résumés and whenever they want to engage in normal commercial behavior. They'll take a course of behavior that will lead to their e-mail being thrown out."

You can be certain that offshore bulk mailers will gleefully thumb their noses at Congress.

The reason it'll be thrown out, of course, is that everyone would start quarantining ADV-tagged mail as rigorously as Hong Kong is isolating suspected SARS patients. A solution to that problem would be to only require ADV tags for bulk mail, not for individual messages.

Lessig told me over the weekend he agrees that's a problem with the legislation and said he hopes it will be fixed before the bill is formally introduced. Lofgren's office said Monday that the bill had been rewritten over the weekend to levy penalties only when a person sends 1,000 or more e-mail messages.

Monday's event at Stanford comes as official Washington is growing more interested in the problems that spam can cause. The Federal Trade Commission is convening a three-day forum on the issue, starting Wednesday. Participants include the Direct Marketing Association, Google, America Online, EarthLink, Yahoo, Microsoft, NTT DoCoMo, and representatives from Canada, South Korea and the European Union.

Expect to see some interesting new developments this week, as well. Privacy service Truste, for instance, plans to announce a bonded sender system that permits trusted senders to post a cash bond.

On Monday, America Online, Yahoo and Microsoft outlined proposed guidelines and technical standards designed to limit spam. And Sen. Chuck Schumer, D-N.Y., is expected to introduce a bill this week to create an national "do not e-mail" list--an idea that the New Democrats touted earlier this month.

In the end, will the FTC and Congress take additional legal steps against spam? More importantly, will they work? The future of our in-boxes--not to mention Lessig's job--is riding on the answers.