Why Canning “Spam” Is a Bad Idea

July 26, 2001 • Policy Analysis No. 408

Everyone hates getting “spam.” But does every unsolicited commercial e‐​mail deserve that derogatory label? Unsolicited e‐​mail can be annoying, but addressing the issue legislatively will create more hassles than does spam itself. It’s not apparent that businesses selling legitimate products have any less right to use e‐​mail than anyone else, and laws targeting only the most egregious spam won’t work, because perpetrators will simply relocate offshore. Spam legislation will create legal and regulatory hassles for mainstream companies, even as they increasingly embrace “opt‐​in,” permission‐​based e‐​mail, which gives consumers the ability not to be contacted unless they want to be.

The basic instructions to Internet users worried about spam will always apply: Avoid posting your e‐​mail address, set up a “junk” e‐​mail account, and never respond to spam. Join services that take you off mailing lists. Increasingly, e‐​mail filtering can change the default, for those who want it, from today’s “everything reaches your mailbox unless you say no” to “nothing comes in unless you say yes.” Even the development of “postage” that shifts costs back to the spammer seems plausible.

We do not know what will ultimately count as “unsolicited” or “commercial” e‐​mail. Questions may include the status of political e‐​mailings or informational newsletters that link to for‐​profit Web sites or contain embedded ads. Even pop‐​up ads on the Web might become suspect in the aftermath of spam legislation.

At bottom, spam legislation kicks open the door to further regulation of business communications. That is risky, because marketing is essential to the growth of tomorrow’s online services and technologies.

Financial remedies would create incentives for enforcers to go on “spam hunts,” looking for evil embedded in every e‐​mail. That threat would keep many legitimate businesses out of Internet marketing altogether. Legislation, and the flurry of litigation that would result, should not be allowed to interfere with the complex relationships between businesses, consumers, and more than 5,000 Internet service providers.

Finally, legislative bans on false e‐​mail return addresses and bans on software that can hide identifying information would have significant implications for anonymous speech–a cornerstone of our Republic. Strange as it may sound, spam and the use of “spamware” are means by which individuals can maintain a cloak of anonymity.

The regulation of spam would make it all too easy to impede solicited mail, unsolicited mail that is nonetheless welcome, legitimate commerce, emerging Internet innovations, and even free speech.