Commentary

Junk Legislation Can’t Solve Junk E-Mail Dilemma

By Clyde Wayne Crews Jr.
This article originally appeared in The Atlanta Journal-Constitution on May 12, 2003.

Unsolicited commercial junk email, or “spam,” is a huge problem. Especially the porn; I have to shoo my kids out of the room when I check my email. But junk legislation offered up to presumably solve the problem can make things worse.

Touted at a recent unsolicited press conference, Sen. Charles Schumer (D-NY) proposed legislation that would impose subject-line labeling requirements for commercial email (it would have to say “ADV”); forbid concealing one’s identity; mandate an “unsubscribe” mechanism; ban the use of software capable of collecting emails from the Internet; set up stiff non-compliance fines; and establish an expensive (and likely hackable and thus worse-than-useless) Do-Not-Spam list at the Federal Trade Commission. Of course, politicians exempt themselves as possible offenders under anti-spam legislation, remaining free to send us junk campaign material.

The downside to an Internet in which you can contact whomever you want, is that anyone can contact you. Spammers pay no postage or long distance charges. The solution is to shift those costs back to the spammer; the question is whether to do that is legislatively or technologically.

Plainly, peddling fraudulent merchandise or impersonating somebody else (such as a person or organization like AOL) in the e-mail’s header information should be punished, as should breaking an agreement made with an Internet service provider (ISP) that prohibits bulk mailing.

But in the debate over the outpouring of spam, it’s important to avoid unintentionally stifling beneficial e-commerce. Regulating communications isn’t something to be done lightly. If a law merely sends the most egregious spammers offshore to continue hammering us, that may simply create legal and regulatory hassles for small businesses trying to make a go of legitimate e-commerce, or for mainstream companies that are not spammers. Commercial e-mail, even if unsolicited, may be welcome if the sender is a business selling legal and legitimate products in a non-abusive manner.

As the market works to shift costs of commercial e-mail back to the sender, we must be on guard against legislative confusion in approaches like Sen. Schumer’s: How might the definition of “spam” expand beyond “unsolicited” and “commercial” email?

What about unsolicited political or nonprofit bulk e-mailings, press releases, resume blasts, and charitable solicitations? What about newsletters that contain embedded ads? Or what about one’s personal email signature line with a link back to one’s employer? That’s a subtle solicitation, whether we admit it or not. At the very least, unwise legislation would create serious headaches for noncommercial e-mailers like nonprofit groups. Would pop-up ads become suspect in the aftermath of spam legislation? They’re not e-mail, but they are unsolicited and commercial.

Finally, legal bans on false e-mail return addresses, as well as bans on software capable of hiding such information, have worrisome implications for free speech and anonymity for individuals-and will be ignored by spammers anyway. Well-meaning individuals can use “spamware” to create the contemporary version of the anonymous flyers that have played such an important role in our history. Individuals should retain the ability to safeguard their anonymity even in (or perhaps especially in) a mass communications tool like e-mail. In an era in which so many people are concerned about online privacy, a law that impedes a technology that can protect such privacy would be curious indeed.

Smarter approaches to the spam epidemic include better e-mail filtering, such as setting the owner’s screen to delete bulk mail and to receive only from recognized and approved e-mail addresses. That’s particularly appropriate for children’s e-mail accounts. Emerging “handshake” or “challenge and response” systems capable of totally blocking spam show promise: Because the most offensive spam is sent by automatic bulk mailing programs that aren’t capable of receiving a reply, spam no longer appears in the inbox.

Identifiers or “seals” for trusted commercial e-mail could be another means of helping ISPs block unwanted e-mail. A new consortium including America Online, Microsoft and Yahoo, to establish “certified” email would bolster this approach.

Given the perfectly understandable desire to stop unsolicited email, it is all too easy for Congress to undermine legitimate commerce, communications, and free speech. And crippling Internet commerce would be especially pointless if spam continued pouring in from overseas. A better target is junk press conferences, like the one at which Sen. Shumer dropped his bill. $25,000 fine, at least. Send payment to waynecrews [at] hotmail [dot] com

Clyde Wayne Crews Jr. is director of technology studies at the Cato Institute.