With the recent anti-spam legislation dubbed "CAN-SPAM" (now there's a silly contrived acronym if I've ever seen one!) passing the House, it's time this issue be discussed here.

What do you think about this bill, its legality/Constitutionality, its effectiveness, and the impact (positive or negative) you believe it will have both on the internet and in the overall economy?

My $0.02:

I'm not certain I'd say it's unconstitutional since it definitely could be said to be a regulation of interstate commerce, however I do think it's a bit of a stretch. But that aside, first I don't think it will be very effective at curbing the problem since spam can still come from outside the country. Second, I think it is heavy-handed, unnecessary, and will harm and/or discourage small business.

About that last point: I run an on-line business and it appears to me that to be 100% conformant to this law, to play it safe, and to be immune from possible erroneous lawsuit or prosecution, I will have to take many, many steps that even then may not fully protect me. For example, you cannot have a subject line that could be considered "misleading" as to the content of the e-mail itself. Well that seems rather subjective to me. And what about a customer who signs up for a newsletter, is on the "opt-out" list with the FTC, and then forgets or denies they signed up? How can I prove that they did sign up? Produce an MS Access database with their e-mail address and a check-box in the "opt-in" field? Surely that would not be proof enough. But then what would be proof enough? It would not be difficult at all to fabricate any kind of digital record of someone signing up for a mailing list. So how do they intend to enforce this?

I don't think this legislation is needed because I believe a free-market solution is possible. Why not start an industry association of ISPs that, to be a member ISP, you must agree to strictly enforce anti-spam measures and to immediately terminate the accounts of spam offenders. Then, have either exlusion lists (or rather, "allowance" lists) or a digital signature by which messages that originate from outside the association can be blocked. Pretty much every ISP would want to be a member of this association in good standing since they'd have a huge disadvantage against their competitors who would be a part. If you, as a customer, are offered a virtually spam-free account versus a spam filled account, which would you choose?

The only drawback would be that you couldn't get e-mail from senders who are using a provider that is not a part of the association, but that shouldn't be a very big issue for two reasons:

1 - Pretty much everybody will be part of the association since practically nobody wants spam.

2 - You could always sign up for an account (possibly even a free one) on the "outside" in the odd case that you needed to receive something from the "outside".

Anyway, those are a few of my points of contention with this bill and how I think the same end can be acheived without throwing people in prison. What are your thoughts?

For those who are interested, here's a project currently underway that is similar to the one I described above:

http://www.smtpnic.org/

Should such private solutions be given a chance before we resort to coercive legislation?

Like most folks I hate SPAM. The individuals and companies that do it have dug themselves a hole and it needs to be filled in.

I'm sorry, Ted, I have no idea what you mean by this. Are you saying you agree that Orat's suggestion is a better alternative to legislation? One-liners are so hard to debate.

I am in favor of legislation rather than any association of ISPs. I see the legislation modeled after the “do not call” list. The problem I see with any association is that the real volume spammers will immediately go outside of it or set up their own ISPs.

We need a law that prevents spammers from operating and provides substantial penalties to those people who violate the law.

Exactly. And if they're outside the association, their mail won't get through to those inside the association because association non-members are blocked by default. And if they create their own ISPs, customers will make that choice freely and will always have the option to switch to an association member ISP. In fact, they'd have every reason to do so since their mail wouldn't reach association members and they'd be getting slammed with spam. It'd be a no-brainer. So instead of having a government-created "opt-out" list which will throw your butt in prison for 3 years or more if you accidentally mail to someone on it, why not have this free association whereby becoming a member is essentially the same as opting out only much more effective?

You see, even with the legislation being considered, you'll still get some spam from within the US (only it'll be more traceable) AND you'll still get TONS of spam from outside the US. With the free association, you'd get hardly any spam (if any) period -- no matter where it might come from. Indeed, if any spam was sent within the association, they'd be immediately kicked out and banned. In addition, an ISP's membership in the association could also be conditional on the implementation of certain measures such as restricting addressee lists to a low number unless specific authorization is given.

Bottom-line: Private solutions are available, no need for government force. I'd much rather live in a society where overt violations of policy would lead to my subscription being terminated as opposd to a society where the same sort of violation (perhaps even unintentional) could lead to my imprisonment and the subsequent ruining of my entire life.

Orat – it sounds interesting. How soon could the “association” be put together? Has there been talk of doing this among the major ISPs?

I prefer private solutions (as opposed to government) as well if they can be effective.

IMO any associations or legislation would be too complicated and financially draining where money could be better spent elsewhere.

Perhaps some software developer could design a program that would automatically send mail back to unwanted spammers. The time and cost of employees sifting through sign-up and returned mail should increase as well as server issues, making spam an unnattractive form of advertising.

I know this could be a major problem. Through the years as I've done research for various papers, I've put my name on a few mailing lists - so as I go through my inbox, I'll get an email from some random place, with no recollection of signing up. If spam were illegal, and I reported these people, it would cause major trouble for them b/c of my mistake! Now, as a person with bad luck, I always feel like I'm talking to some company or another trying to fix a mistake they made - I know how irritating it can be to have to deal with other people's mistakes. and I couldn't imagine facing jail time b/c someone else made a mistake!

Overall, anti-spam legislation and the opt-in no call list are both unconstitutional in my mind. They both violate free-speech. I once heard it said "one man's rights ends at the other man's nose" - so people make the argument that spam and unwanted calls impact other people's rights - but there are VERY cheap and easy solutions to these problems. If you don't want unwanted phone calls, get an answering machine and screen your calls, or get caller ID (a little more expensive) or try that telezapper thing (I have no idea if it works). You don't want spam, find an email server that blocks spam (or tries their best). I use a free yahoo account, and it does a very good job of screening spam. I left for four days, and came back to over 1000 email messages - 952 of which were screened to the bulk mail folder I could easily delete. Of the remaining messages in my inbox - most were from well-meaning friends. If someone seriously wants to cut down on what I think is the real spam - they should ban all those stupid email chain letters! But seriously, I think there might have been two messages I considered spam in the inbox, and those I clicked and hit the "SPAM" button on the yahoo toolbar. How is this seriously impacting anyone's life??

Obviously, as Barnum said, there's a fool born every minute - so some people are duped by spam... but this is where accountability in business laws need to work... Regulation (and enforcement of said regulation) against false claims - with major disclaimers needing to be PROMINENTLY displayed (or stated up front in the case of telemarketers). But, this is not something covered by either the Opt-in or anti-spam regulation. I sincerely hope the no call list is struck down in court and that people write/EMAIL their legislators to vote agains the anti-spam. Of course, many people like to think the government can save us from these minor life inconveniences.

As has been discussed previously, there are some ways for people to in essence "ban together" to make SPAM a non-profitable way for people to do business. One of the biggest menaces in spam is the rather inappropriate spam that arrives in everyone's mailbox. I know my parents never appreciated it when they saw "NUDE GIRLS LIVE" in subject lines in my little sister's AOL inbox - and she being a rather sensitive soul was also rather shocked. But this is why I chose NOT to use AOL, and have since found only one questionable email reach my inbox.

As far as impact of this bill on the economy and internet? Very minimal in both counts. I do see real challenges to smaller business with both no-call lists and anti-spam legislation - but hope that enough ACLU lawyers will descend upon any small business owners negatively affected in order to get the laws overturned in the courts. And impact on the internet?? Big businesses who use spam as a serious advertising method will find ways around it. How hard will it be for a larger company to pay some schmuck living in europe to earn a few euros by setting up a computer that auto sends the spam?? Heck, if the company gave me the computer, I'd do it!

So bottom line - our legislators need to get real and start focusing on laws that might have real impact on a person's quality of life!

Ted:

Dunno, I haven't heard any such talk, but I think it's a workable idea.


mrbluiis

I don't think an association would be too complicated, but a program like you describe would not work for several reasons. First, even if it gets sent back to the spammer, so what? That does nothing to discourage the spammer because they probably weren't using that account to receive mail in the first place. Second, they usually "spoof" the return address so it's not valid anyway.


rebelkate:

Well, I can kind of see the interstate commerce aspect of it. And I can understand the problem if you pay for a phone line only to have someone ELSE be using it all the time by calling you constantly. But e-mail is a bit different. Getting lots of spurious mail doesn't significantly diminish your ability to use e-mail... unless your box is getting filled so that you can no longer use it. But at any rate, as you pointed out, US legislation against spam isn't going to fix the problem since there are still plenty of countries still out there from which spam can come. All in all, the legislation will accomplish little in actually improving our e-mail, and even less, our lives overall.