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Be wary of Washington's spam solution

When lobbyists meet to concoct a way to reduce the deluge of unsolicited e-mail, you should be concerned.

WASHINGTON--About three dozen high-level lobbyists met quietly last Friday afternoon at the U.S. Chamber of Commerce to concoct a way to drastically reduce the deluge of unsolicited e-mail.

The invitation-only lunch meeting, which lasted about two hours, started a process that could result in an industry agreement on new laws or self-regulation.

Lobbyists for AOL Time Warner, Verizon, the National Cable and Telecommunications Association, and the Direct Marketing Association were among the attendees. According to the invitation, the group met to discuss "approaches to addressing problems arising from abusive electronic mail practices."

All that sounds pretty good, right? After all, who could be against efforts to reduce the heaps of spam that are snarling mail servers, clogging connections and making our in-boxes approximately as useful as a 10MB hard drive? One of my colleagues estimates that spam soon will make up the majority of message traffic on the Internet.

But Washington rarely has the best solution. When you dump a passel of lawyers and lobbyists in a room, dub them a working group and close the door, they end up crafting new laws and regulations. And new laws and regulations from Washington simply won't stop spam.

The biggest reason is that so much of the stuff comes from overseas. Eighteen months ago, two of five Internet providers receiving the most spam complaints were based outside the country--and the flow of offshore spam has been accelerating substantially ever since. U.S. laws also could slow development of spam-fighting technologies, offer Americans a false sense of security and do zilch to deter foreign miscreants.

Another reason is that free-speech loopholes will almost certainly leave any federal anti-spam law wanting. Politicians, always cunning about keeping their options open, have exempted themselves from all existing and proposed anti-spam laws. The Democratic Party has been caught spamming, as has Bill Jones, the recent unsuccessful Republican candidate for governor of California.

Steve DelBianco, a vice president at the Association for Competitive Technology, attended Friday's meeting as one of the few proponents of a laissez-faire approach. "The best way to proceed, in my opinion, is to let the Internet service providers, who have all the incentive in the world to make their customers happy, come up with the best way to suppress offensive e-mail," DelBianco said afterward.

That makes sense. Unlike federal laws that end at the border and will never restrict vote-for-me spammage, technology has no such limitations.

One solution is creating smarter mail applications that can recognize and kill spam. SpamAssassin is one option, and I've found it to work remarkably well. John Gilmore, who co-founded the Electronic Frontier Foundation, is spending his own money to fund a smarter mail-reader project.

"Such mail-reading tools provide far more useful capabilities than merely filtering out spam," Gilmore wrote earlier this year. "Have you ever dropped out of a high-volume mailing list because you really only cared about a fraction of the messages in it? A competent interest-based reader would let you still read the fraction which you care about, while shielding you from the intermingled irrelevant messages."

Another solution is blacklists run by groups like SpamCop, SPEWS, and Spamhaus. Yes, they can be problematic--I've had my own mail server incorrectly blacklisted by SpamCop. But over time, as spam increases and a reliable blacklist becomes something that Internet providers will pay for, the discipline of the free market means their quality is likely to improve.

Jim Harper, a free-market policy consultant in Washington, said he suggested that approach at Friday's meeting. He even handed out a one-page paper on blacklists containing a statement: "The commercial nature of these lists is important because their financial incentives are clear. They must help eliminate spam without blocking legitimate e-mail."

He was rebuffed. "It had the hallmarks of a Washington meeting where they try to solve a political problem and not the real problem," Harper said. "I put forward a market-based solution to the economic and social problems of spam. But because of the bad experiences a few people have had with (the Mail Abuse Prevention System), for example, that approach isn't even on the table."

Harper, who like DelBianco was in the minority, said he expects the working group to agree that more laws are needed. "If you have a meeting in Washington comprised of government relations people, you're already talking about legislative and regulatory solutions. That's the air we breathe here. But because of the nature of spam, because of the nature of the Internet, you're not going to solve the problem through legislative and regulatory solutions."

Don't blame the lobbyists for inventing this closed-door process. It's not their fault. Friday's working group was organized in response to pointed suggestions from two Federal Trade Commission officials: Chairman Tim Muris and Commissioner Orson Swindle. In private meetings with Internet providers and the Direct Marketing Association (DMA), the duo let it be known that they expected industry representatives to come up with a spam solution, pronto.

This may be the way Washington works nowadays, but these private confabs are both silly and demeaning. They're silly because nobody knows better than the Internet industry how difficult a problem spam has become. They're demeaning because government officials treat technology firms like doltish school children, assigning them homework projects and requiring them to report back a few months later.

(Last week, in an unrelated event, three consumer groups asked the Federal Trade Commission to outlaw commercial e-mail that misrepresents the content of the message or fails to provide a way to unsubscribe from the mailing list. While some U.S. states have enacted anti-spam laws, Congress has not.)

To be sure, there have been some limited successes using state anti-spam laws in the court. But it hasn't slowed the steady increase in unsolicited e-mail, some courts have struck down state laws as unconstitutional and many spammers are judgment-proof anyway.

Jerry Cerasale, the DMA's senior vice president of government affairs, said the working group is "still in the beginning stages" but it is likely to continue meeting on a fairly regular basis. He said that "one of the areas we're looking at is educating people on Internet networks not to have open switches--that's as much as I know about it--to thwart the ability of their service being used to send out someone else's e-mail." That's a reference to what system administrators call an open mail relay, which can serve as originating points for bulk e-mail.

"We want to work together and see if we can work with the FTC or anyone in government to see what we can do," Cerasale said.

And that's exactly what we should be worried about.