In the heated debate over the outpouring of unsolicited bulk email, otherwise known as “spam,” it’s important to remember that not every unsolicited message is evil incarnate. Despite the hysteria, the optimal amount of unsolicited commercial email is not zero. Sometimes, commercial email is friendly or otherwise welcome‐yet unsolicited.
Unsolicited commercial mail can be annoying, but it probably tops out as a vice rather than a crime except in rather specific instances, such as when the sender is peddling fraudulent or phony goods, or is impersonating someone else in the message’s header information. Or perhaps a sender might be breaking a bulk‐mailing contract he has made with an Internet Service Provider (ISP).
Laws supposedly designed to halt spam can do more harm than good, especially on an Internet that has yet to even hit on a successful marketing model. That is not to say that spam is the road to success: rather, legislation can have unintended consequences that otherwise harm commerce regardless of any impact on spam. Notably, a recent report expects eighty percent of San Francisco’s remaining dot‐coms will fail over the coming months. Banner ad click‐thoughs are down, as is the money spent on such marketing. Unsolicited email may be an annoyance to many of us, but it’s also a part of a larger picture in which companies and entrepreneurs are groping for ways to keep the Internet’s services and options growing while making a profit.
It’s not apparent that businesses that are selling legal and legitimate products have any less right to use email than anyone else. The Internet as it exists today is a public, open system and none can legitimately claim a right to exclude others and have the medium regulated on their behalf. However the government must protect citizens against force and fraud.
As this testimony argues, with solutions available and improving on the sender, ISP and user side and even hints that the spam problem is stabilizing, legislation is not wise, especially when it’s considered that Internet communication itself is still a moving target; email is just one manifestation. Government should not use the novelty of the technology to justify intervention, especially when there’s plenty of novelty to come. Conditions are changing every day. We don’t have all the answers to the spam problem, and interference now can impede superior solutions to the dilemma that are emerging.
Besides, if the idea is to target the most annoying kinds of spam (LOSE WEIGHT FAST!; MAKE MONEY AT HOME!; XXX! ), spam laws simply will not be enforceable. The bad guys will just go offshore, out of the reach of legislation, and the effect of a spam law will simply be to create mischief and regulatory hoops for mainstream companies who typically are not the greatest offenders. Legitmate companies will end up being targeted, with small business likely taking a lot of the brunt of the rules. As will be described, reputable companies are embracing opt‐out‐and often opt‐in‐policies of their own accord, and the phenomenon of “permission‐based” email–which looks a lot like spam but is actually friendly fire, so to speak (with enviable click‐through rates!) is on the rise.
Not all unsolicited commercial email is created equal. Nor are ISPs, who would be given legislative immunity for “good faith” efforts blocking and policing what they believe to be spam, even in the absence of customer consent, and in spite of what might otherwise have been negotiated privately. That will create confusion and a legislative nightmare. As noted, the market is already embracing permission‐based emailing. It’ll resemble spam to many ISPs for sure. Government should enforce private contracts regarding the delivery of such bulk mail, not dictate what the terms should be or allow one party to set the terms unilaterally.
Spam is just marketing. And there are different levels of spam “guilt.” Spam is much less invasive than door‐to‐door selling, but we don’t outlaw that. It’s best to allow people to decide for themselves whether or not to entertain sales pitches. To the extent unsolicited communication is responsible for growth of the Internet and future communications options, hindering unsolicited mail could hamper access for many; a government created digital divide.
How Big is the Spam Problem?
It certainly easy to see why spam is widely used by the unscrupulous. It’s as easy to send a million emails as it is to send one. Some organizations like CAUSE find that spam accounts for about 10% of all email. Others have estimated it to be up to one‐third of traffic. A recent and frequently cited study by the EC seems to indicate the problem isn’t as big as it used to be, that “It is safe to say the spam phenomenon is now in decline,” and that spam had its “heyday between 1995 and 1998.“1
Spam clearly remains problem but it’s one ripe for political mischief, as legislation proposed can be more problematic than spam itself. The debate thrives on loaded language, like the word “spam” itself, or in the description of marketers collecting emails as “harvesting.” Some seem to detest Internet commerce as a worldview. But commerce and a commercialized Internet are critical to expanding online services, and access itself.
Private Means of Coping With Spam
It is worth reviewing some of the means of coping with spam in play today and on the horizon, because they help illustrate why legislation is unneeded and also highlight some of the problems that legislation can create by changing the rules midstream in an adapting marketplace.
Individuals’ Tools to Attack Spam:
The basic instructions to Internet users still apply: Read the fine print before filling out forms; don’t post your email address on Usenet posting or in chat rooms (even “munging” the address with an insert like NOSPAM won’t protect an email for long2); try to avoid posting your email on your website. If need be, set up set up separate “junk” email account to use in online interactions. Finally, don’t respond to spam, even to ask to be removed since this is often just a trick to assure that an email address is live. Instead, report and send the spam, either your ISP (which reports it to the spammer’s ISP and which might help since most ISPs have “no spam” stipulations as part of their terms of service) or to a service like SpamCop.
There are other preemptive strikes that can be taken against unwanted mail. For example the Direct Marketing Association runs a list (at http://www.e-mps.org/en/) that Web surfers can visit and sign into to have their names removed from emailing lists. DMA member companies must abide: “All DMA members who wish to send unsolicited commercial e‐mail must purge their e‐mail lists of the individuals who have registered their e‐mail address with e-[Mail Preference Service].” The service is even capable of blocking business‐to‐business email, not just consumer email.
Of course, legitimate businesses that are part of the DMA aren’t the chief culprits. Most spam comes from companies that are by no means DMA members.
Beyond such pre‐emptive moves, email filtering is a common tactic. Email filters can do a number of things: They can block by sending to a separate folder, or even delete emails altogether. They can block based on the sender’s email (called “blacklisting”), or they can block based on words in the subject line or body. Online email services will often send email to a “bulk folder” if the email is not specifically addressed to you, but instead contains numerous addressees. The Hotmail email system, for example, makes spam easy to deal with, even though the system is quite susceptible to spam. Bulk mail goes into a special folder and is held there for two weeks and then automatically deleted. During that time, the user can open the folder and scan for legitimate mail that shouldn’t have been sent there. Rather than reading any of the spam, a user need only note legitimate messages and click the “This is not bulk mail” button. Those messages will never be sent to the bulk bin again.
Increasingly, consumers can configure email to accept only some addresses (whitelisting). If consumers so choose, the default can increasingly evolve from today’s “everything comes in unless you say ‘no’ ” to “nothing comes in unless you say “yes.’ ” Spamcop, for example, offers white lists or safe list filters, and these can be integrated with existing email accounts.3
Email tools for kids, such as that provided by email-connection.com, can be set up so that a child can send only to parent‐approved recipients. Of course, problems of children’s unattended use of the Internet go well beyond email. But even here there are solutions, and some have opted to join private networks altogether, such as eKids Internet and JuniorNet, where only members of the network itself, not the public Internet, participate‐yet many of the features of the public Internet are duplicated through partnerships.
Aside from standard filtering, there are two main methods to block spam that could emerge, and already have to certain extent: passwords and postage. These tools are truly novel, removing even the argument for opt‐out requirements. While filtering will zap some innocent emails, password and postage systems hold the promise of getting around that problem. One programmer offers a system for Unix users by which the sender gets an autorespond message containing a password when he sends an email, if he is not listed in the recipients “privileges database.” He must then respond with the password in the message. The initial autorespond states, “Spam foiling in effect. My email filter autoresponder will return a required email password to users not yet in the privileges database.“4 That blocks spam, which is automatized.
One company called MailCircuit offers spam‐free email services on what it calls its “Handshake System” to assure that “If you don’t want it, you do not have to receive it…Our Mail Verification Program stops unwanted mail period.“5 By this unique method, when an email comes to a recipient, the sender is sent a message by the system asking for a unique response. If they reply, they are added to the friends list and future messages go through. Again, since spam is automatized, this process usually stops it.
As seen in the next section, techniques for ISPs to share “postage” with legitimate emailers is on the rise. There could also be mechanisms by which individuals are paid postage for receiving unsolicited mail (remindful of the often seen notice from sellers on eBay: “I accept PayPal.”), and could waive the fee in certain cases, particularly if the system were to expand beyond commercial email to encompass all “unknown” emailings.6 What an innovation it would be for individuals rather than the USPS to collect postage! As they are now starting to do with commercial mailers, ISPs may be able to help facilitate postage for individuals.
ISP Tools to Attack Spam:
Paralleling those used by consumers, various ISP filtering options are in play (XXX; For Immediate Release!; Earn Money Fast!). ISPs are also able to block bulk mails that come from dial up accounts, which many spammers employ in order to hide their header information.7
ISPs also block known spammer directories such as the MAPS “Realtime Blackhole List.” Blacklisting can lead to problems, but it is a perfectly legitimate exercise of property rights. Disputes arise because some bulk mailers regard this as vigilante behavior. Legislation would likely have some impacts on this option; but it’s by no means clear that legislation is a good substitute for it.
Increasingly there appear to be ways emerging for ISPs to shift some of the costs and inconvenience of spam back to the spammer. One option is for ISPs to develop ways to start charging for commercial emails. Already, a company called ChooseYourMail “charges advertisers a delivery fee which is shared with the ISP. This enables the ISP to defray rising mailserver costs and help keep monthly access fees low for their subscribers.“8 This fits in the vein of request marketing that is changing the commercial mailing industry. Such pay systems help shift the burden back where it needs to be and represent the first steps toward “postage” for commercial email.
ISPs and technology providers may need to “collude” to implement these systems on a wide scale, and they must be allowed to experiment.
Notably, privately owned networks like eKids don’t experience significant shift‐the‐burden problems with spam. Commercial email policies would be spelled out to ISPs who join (or establish) such networks. And the question of who bore the costs, rather than being answered by legislation from Washington, D.C., would be resolved by contract. Some networks may disallow “spam” altogether. Of those that permit it, some may require spammers to pay fees to account for the strain they place on networks. Or, network owners could require that member ISPs maintain certain capacity.
“Peer Pressure” On The Bulk Mail Industry Is Addressing Spam
Permission‐based email will grow, and it represents a mounting source of peer pressure on the commercial mailing industry to make mail less intrusive over time. The market needs to adjust to these new realities. Indeed, there is a cottage industry devoted to spelling out the difference between permission email and spamming.9 Permission mailing is praised widely: