Unlovely Spam

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

Michael W. Lynch from the October 1997 issue

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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 containg 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.