The folly of antispam legislation

Extraprise co-founder William Blundon argues that hopes for effective "do not spam" legislation are bound to get dashed, mostly by the economics of e-mail.

4 min read
Spammers promote some unhappy stereotypes about Americans.

From a spam-viewing perspective, the average citizen, it would seem, is aging, balding, out of shape, impotent, undereducated and has incurred significant credit card debt through online encounters with other lusty members of the human race.

The fact that this profile actually fits more than a few Americans makes the portrayal particularly galling. Of course, the opposite is also true. Women are increasingly annoyed by frequent offers to enlarge portions of the human anatomy that are only available to them through gender reassignment surgery.

There is some solace. Apparently, there are a large number of Nigerian princesses, diamond mine owners and distressed government ministers who are anxious to share their millions with anyone in the United States who is willing to accept the money. Give them access to your bank account, and they will be happy to manage the electronic funds transfer.

The recent success of the National Do Not Call Registry in the United States has legislators drooling over the idea of eliminating spam. Antispam legislation has incredible allure to both the elected classes and their constituents.

The Can-Spam Act, for example, mandates that all commercial e-mail have a valid return address so that recipients could more easily ask to be removed from future mailings.

There is a requirement for an explicit opt-out mechanism in all marketing e-mail--whether solicited or unsolicited--and improved definitions of proscribed actions like dictionary attacks and address harvesting. The bill provides fines of up to $1.5 million and as much as a year in jail for those who do not comply with its restrictions. The bill was passed unanimously in June.

Sen. Charles Schumer, D-N.Y., has introduced a bill that goes significantly further. The Stop Pornography and Abusive Marketing (SPAM) Act would create a national do-not-spam directory that the Federal Trade Commission would maintain as it does the Do Not Call list. People would have the ability to register for this opt-out service and also flag their children's e-mail addresses with a special designation to ensure that they do not receive adult content.

Antispam legislation has incredible allure to both the elected classes and their constituents.
All marketing e-mail would require "ADV" (for advertisement) in the subject line to aid spam filters that individuals and Internet service providers such as America Online use. Legislative proposals to address spam continue to proliferate, including the Wilson-Green Anti-Spam Act and the Reduction in Distribution of Spam Act.

Surprisingly, perhaps, some privacy groups like the Coalition Against Unsolicited Commercial E-mail oppose the pending legislation, saying it is inadequate. They prefer the explicit opt-in mechanism mandated by the European Union and believe that current spam efforts are counterproductive.

Some industry groups like the Direct Marketing Association oppose select parts of most of these bills. The DMA has a well-thought-out set of guidelines for online marketers and supports a universal opt-out approach. However, it opposes a formal opt-in policy.

Many of these legislative goals are laudable. However, they fail to make several key distinctions. Most people have an implicit hierarchy of what they consider spam. Illegal, fraudulent and misleading e-mail is spam. E-mail from an unknown source is "spam lite." Unsolicited commercial e-mail from a respected company may be spam, junk mail or simply unwanted but acceptable free speech. E-mail from a company with whom the consumer has an existing commercial relationship can also be considered spam if it is simply unwanted or repetitive. These distinctions are highly idiosyncratic and are not amenable to broad legislation.

Many of these legislative goals are laudable. However, they fail to make several key distinctions.
Many Americans consider the explicit opt-in mechanism in the European Union to be overly restrictive of commercial speech and vaguely un-American. Others will never be satisfied until all unwanted e-mail (commercial or otherwise) is eliminated. Finding the right balance between personal privacy and freedom of speech will continue to be one of the great American debates for years to come.

The economics of the Internet are different from those of telephone networks or the postal system and do not bode well for any legislative campaign. Moving a telemarketing operation offshore is an expensive proposition, while direct mail costs increase dramatically when mail crosses geographic borders. But it usually costs less to operate a sophisticated e-mail marketing program from New Delhi than it does from New York.

Some spammers now send more than 100 million e-mails per day using servers known as "spam cannons." Does it really matter where their servers are located? Most pending spam legislation is designed for consumer, not employee, e-mail. Does it matter to a spammer if he sends e-mail to my home or office? Will companies force their employees to register their corporate e-mail addresses on a do-not-spam list? Will the company do it for them? What if hackers crack the security on a national database of those spam-blocked addresses?

Ethical companies will comply with any new spam legislation. Black or gray spam operations will invest whatever it takes to stay ahead of the technology curve and beyond the arm of the law. As a result, the percentage of dishonest e-mail will only increase.