Unlovely Spam

Efforts to deter unsolicited e-mail may cause more problems than they would solve.

Despite having been besieged by the Internet community and slapped down by the Supreme Court for its overreaching Communications Decency Act, Congress is again pondering a foray into cyberspace. But this time, lawmakers will be acting at the behest of many in the Internet community itself. They are plagued by a problem they think only Congress can solve: unsolicited commercial e-mail. The junk mail of cyberspace, known derisively as "spam," is increasingly clogging the e-mail boxes of the Internet's most active users. Washington's solutions, depending on who is doing the solving, range from outright prohibition to a government-enforced labeling requirement. But such solutions create problems of their own: Once invited to exert its authority in cyberspace, Congress is not likely to leave.

Three anti-spam bills are now pending before Congress. Rep. Christopher Smith (R-N.J.) introduced the Netizens Protection Act of 1997 in May. Backed by the most ardent privacy activists and small Internet service providers (ISPs), Smith's bill uses a 1991 law that outlawed unsolicited commercial faxes and applies its restrictions to e-mail.

Smith's New Jersey colleague, Democratic Sen. Robert Toricelli, takes aim at the mailbox. His Electronic Mailbox Protection Act of 1997 would outlaw the harvesting of e-mail addresses and require all senders of unsolicited e-mail–not just commercial senders–to use valid reply addresses.

Sen. Frank Murkowski (R-Alaska) has introduced the Unsolicited Commercial Electronic Mail Choice Act of 1997, which would require spammers to put the word advertisement in the subject line and to honor requests to remove names from their lists. Murkowski's bill would require ISPs to offer screening of such commercial e-mail in two years.

Each of these bills would allow individuals to sue those who continue to splatter them with spam after they have been asked to stop. Hearings on the bills, which have been referred to the respective commerce committees, are not expected until late fall.

It is not surprising that members of the Internet community have approached Congress. Of all the issues swirling around the Internet, from porn to privacy, spam seems the one most resistant to private solutions. Sending junk snail mail carries per-piece costs of printing and postage, but the effective marginal cost of spam is zero. A budding spammer can purchase a list of a million addresses for only $11. As a result, spammers have little incentive to target their audience, and few do.

So far, wily spammers have eluded all attempts at technical fixes, such as e-mail screens. And like junk faxes that force the recipient to bear part of the freight (toner, paper, and opportunity cost of having the fax machine tied up), spammers foist costs onto others. Internet service providers, especially the smaller shops, complain of clogged servers. Their customers pay for spam-generated slowdowns in addition to bearing the opportunity cost of each two-second click on the delete button. In areas where net connections are still metered, people also pay for the download time.

But tempting though it may be to call in the feds, the spam issue demonstrates the inherent dangers of state intervention in the Internet's evolving ecology. Along with the feds come the threats of abridged speech and increased regulation.

In principle, it is unacceptable for any party–individual or corporate–to force anyone else to pay for something that he or she doesn't want. Hence the attraction of Smith's bill outlawing unsolicited e-mail, which is backed by a coalition of small ISPs and frequent Internet users. This bill would create an "opt-in" system, in which it would be illegal for companies to communicate with netizens unless first granted permission. That would appear to be a broad prohibition on speech, but backers of the bill claim the approach has been upheld as constitutional. In the 1995 case Destination Ventures Ltd. v. FCC , the Court of Appeals for the 9th Circuit ruled that advertisers have no right to force people to pay for advertisements they neither asked for nor want.

The analogy between fax and e-mail is imprecise, however, and Smith's bill raises numerous concerns. E-mail is interactive, with much richer content than faxes. For example, an e-mail message from a stranger seeking political support may have embedded in it a link to a Web site that contains advertising. Also, the line between what is commercially annoying and merely annoying is not always clear on the Internet, an inherent problem with any bill attempting to label speech.

"What if a professor developing a new mathematical model wants to get it out,
so he sends a spam? Is this commercial speech or academic speech?" asks Solveig Bernstein, a telecommunications analyst at the Cato Institute. "What if a corporation sends out a spam saying it has information on a certain disease, and 99 percent of the information is free but they are also trying to sell something. Is this prohibited?"

Furthermore, the very rhetoric in which some politicians are couching the issue reflects the paternalism they are always ready to apply to Internet issues. The title of Smith's legislation–the Netizen Protection Act of 1997–gives an indication of the governing mind set. In his press releases and speeches, Smith repeatedly refers to "passengers on the information superhighway," as if those who built the medium, maintain it, and are providing its content are its passive victims.

Listen to what Smith–a strong supporter of the Communications Decency Act–said on introducing his bill: "The Internet user, or Netizen, is in a vulnerable position in the new medium and we in Congress cannot stand idly by as law-abiding citizens have their privacy invaded on an almost regular basis." Just how "vulnerable" are people on a medium they freely choose to frequent? If there is one sure characteristic of politicians who talk this way, it is that they are never satisfied to stand idly by when they could be passing more legislation.

Similar problems are embedded in the Murkowski bill. At first glance, it appears to be the most moderate, merely requiring the word advertisement to appear as the first word in the subject line of commercial e-mails. Besides running into the problem of where information stops and advertising starts in this medium, such a requirement weakens the case for informational liberty on the Internet.

There are legal distinctions between commercial speech and speech that is merely made available to the public. But if Washington can mandate labels for ads so people don't have to click on a delete button, the obvious next question is, Why shouldn't it mandate labels for Web pages so children don't stumble across something objectionable? Indeed, the Clinton administration is moving ahead with just such an approach, urging Web site operators to use rating labels. Much to the chagrin of free-speech activists, such major companies as Yahoo Inc., Excite Inc., and Lycos Inc. are falling right into line.

Toricelli's bill doesn't make distinctions between commercial and noncommercial spam. It merely outlaws the method–blasting off more than 25 unsolicited messages without proper return addresses. But this threatens to prohibit political and religious speech, which are protected at a higher level than commercial speech under current jurisprudence.

Besides these theoretical objections, there is the practical objection also raised by opponents of the Communications Decency Act: National regulations are inherently ineffective in a global medium. In this instance, the low marginal cost of e-mail provides a basis for an argument against such regulations. Spam haters are right to herald the anti-junk-fax law as a success; the law has served its purpose of unclogging fax machines. But while a junk faxer faces a high freight charge for moving his broadcast fax machine offshore, there are no long-distance charges on e-mail.

Are there better responses to the spam problem than these laws? There isn't one simple solution, but there are a number of better strategies available. One, in fact, involves the government acting under current law.

In June, the Federal Trade Commission held a series of hearings on privacy at which the issue of spam was explored. It quickly became clear to the FTC that much spam–which has degenerated into amateurish pitches for porn and pyramid schemes–is fraudulent, both because the content is false and the e-mail removal instructions are inaccurate. "Isn't fraud or deception under our existing authority?" asked FTC Commissioner Christine Varney. They are, and the FTC is exploring ways to crack down on spammers.

Jason Catlett, CEO of Junkbusters, a for-profit firm that specializes in freeing "consumers from junk communications of all kinds," is working to give individuals legal recourse against spammers. Junkbusters provides a service, JUNKBUSTERS SPAMOFF, which allows individuals to build "no solicitations" notices on their web sites. Included in the service is a reply to spammers that they are free to continue to send spam for $10 a message.

"The fact that spammers are operating outside the law suggests that this legislation won't be effective," states Catlett. "It may dampen it somewhat, but compared to the damage that [new legislation] stands to do with unforeseen effects, I don't think it is worth it at this stage."

In the wake of the FTC hearing, the Washington-based Center for Democracy and Technology is hosting workshops in which major stakeholders, from consumer and industry activists to major corporate players, such as America Online, MCI, and AT&T, are exploring solutions to the problem.

Outside the Beltway, the San Francisco-based Electronic Frontier Foundation has started a project to bring together ISPs, network backbone providers, direct marketers, and free speech advocates to explore ways to attack the problem. EFF plans to: explore an informal opt-in system, in which a central list of individuals willing to accept spam is maintained; work with network providers to incorporate certain minimum standards into their contracts; and develop more robust filters.

Robin Lee, the spokesman for the anti-spam project at EFF, does not oppose legislation that would set up such background norms as mandatory removal, or that would authorize civil recovery against intransigent spammers. But he does oppose legislation that would outlaw a whole class of speech. "It is one thing to say that the government should create a right of recovery for harms, but it is quite another to say that it should determine the exact solution," states Lee. "I think in many ways that is what people are looking for. Pass a bill, get it in one bang."

At its core, spam is a pricing problem; it needs a pricing solution. Technology commentator Esther Dyson predicts that ISPs will develop smart e-mail systems, which allow e-mail from known users to pass freely but charge e-mails from unknown users a fee, depending on the subscriber's preference for receiving unsolicited e-mail. The fee would be set by the recipients, who would then be making the tradeoff between being bothered by unwanted mail and the risk of missing messages they might want. A recipient could refund a fee if she found the information useful or responded to the message.

Such a system, which could evolve entirely free of government intervention, would force the e-mail sender to consider the preferences of the end user. Sending spams containing sexual materials to convents would have little commercial value. But sending the same messages to Hustler subscribers might yield a profit.

"Many people will refuse to read unlabeled mail from people they don't know unless paid," Dyson predicts. "But that will be their decision, not a government requirement. The essence of the system would be flexibility and choice."

Yet for now tempers are hot, and people want a solution. "There is something visceral about e-mail," says EFF's Lee. "It is far beyond annoyance. It stirs up the worst in people." This is precisely why Congress should not be invited in. As Cato's Bernstein notes, "Congress isn't in the habit of hesitating in the face of its own ignorance." It is hardly in the long-range interests of the Internet community to encourage congressional involvement, especially when, on every other issue, that community claims both its ability and its desire to regulate itself. Spam may get worse before it gets better, but a nonlegislated solution would keep its life short, and cyberspace free.

Michael W. Lynch ([e-mail]) is REASON's Washington editor.