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No. 408 July 26, 2001
Why Canning “Spam” Is a Bad Idea
by Clyde Wayne Crews Jr.
Executive Summary
Everyone hates getting “spam.” But does every Web sites or contain embedded ads. Even pop-up
unsolicited commercial e-mail deserve that deroga- ads on the Web might become suspect in the after-
tory label? Unsolicited e-mail can be annoying, but math of spam legislation.
addressing the issue legislatively will create more At bottom, spam legislation kicks open the
hassles than does spam itself. It’s not apparent that door to further regulation of business communi-
businesses selling legitimate products have any less cations. That is risky, because marketing is essen-
right to use e-mail than anyone else, and laws tar- tial to the growth of tomorrow’s online services
geting only the most egregious spam won’t work, and technologies.
because perpetrators will simply relocate offshore. Financial remedies would create incentives for
Spam legislation will create legal and regulatory enforcers to go on “spam hunts,” looking for evil
hassles for mainstream companies, even as they embedded in every e-mail. That threat would keep
increasingly embrace “opt-in,” permission-based e- many legitimate businesses out of Internet market-
mail, which gives consumers the ability not to be ing altogether. Legislation, and the flurry of litiga-
contacted unless they want to be. tion that would result, should not be allowed to
The basic instructions to Internet users worried interfere with the complex relationships between
about spam will always apply: Avoid posting your e- businesses, consumers, and more than 5,000
mail address, set up a “junk” e-mail account, and Internet service providers.
never respond to spam. Join services that take you Finally, legislative bans on false e-mail return
off mailing lists. Increasingly, e-mail filtering can addresses and bans on software that can hide iden-
change the default, for those who want it, from tifying information would have significant implica-
today’s “everything reaches your mailbox unless tions for anonymous speech—a cornerstone of our
you say no” to “nothing comes in unless you say Republic. Strange as it may sound, spam and the
yes.” Even the development of “postage” that shifts use of “spamware” are means by which individuals
costs back to the spammer seems plausible. can maintain a cloak of anonymity.
We do not know what will ultimately count as The regulation of spam would make it all too
“unsolicited” or “commercial” e-mail. Questions easy to impede solicited mail, unsolicited mail that is
may include the status of political e-mailings or nonetheless welcome, legitimate commerce, emerg-
informational newsletters that link to for-profit ing Internet innovations, and even free speech.
_____________________________________________________________________________________________________
Clyde Wayne Crews Jr. is director of technology studies at the Cato Institute.
Unsolicited Introduction according to his particular preferences. As in
commercial mail the offline world, the government’s role
In the escalating debate over the torrent of should be limited to that of protecting citizens
can be extremely unsolicited bulk commercial e-mail, otherwise against force and fraud.
irritating, rude, or known as “spam,” it is important to remember Solutions to e-mail intrusions are already
obscene, but it that not every unsolicited message is evil. available to individuals and ISPs, and more are
Despite the indignation of a highly mobilized on the way. Furthermore, we are seeing signs
is more an and engaged anti-spam contingent, the ideal that the spam problem, although terrible, is not
annoyance than an amount of unsolicited commercial e-mail is not getting worse. Government should not use the
equal to “none” for everyone. Sometimes, com - novelty of the technology to justify intervention.
assault except in mercial e-mail is welcome or otherwise consid- Conditions are changing every day. Congress
rather specific ered “friendly,” even if unsolicited. doesn’t have all the answers to the spam prob-
instances. Unsolicited commercial mail can be lem, and government interference now could
extremely irritating, rude, or obscene, but it is impede the emergence of superior solutions.
more an annoyance than an assault except in Besides, if the idea is to target the most
rather specific instances, such as when the annoying kinds of spam (LOSE WEIGHT
sender is peddling fraudulent or phony goods FAST! MAKE MONEY AT HOME! XXX!), leg-
or is impersonating someone else in the mes- islation will be difficult or impossible to
sage’s header information. Or the sender may enforce. The offenders can easily relocate off-
be breaking a contract with an Internet service shore, out of the reach of U.S. legislation. The
provider (ISP) that limits bulk mailing. effect of a spam law will simply be to force
Laws presumably designed to halt the spam mainstream companies to jump through yet
scourge would do more harm than good, how- more hoops. Legitimate companies will end up
ever, especially on an Internet that, contrary to being targeted, and, of those, small business will
expectations, has fostered few profitable mar- suffer the most. As discussed herein, reputable
keting and business models. That is not to say companies are implementing user-friendly
that spam is the road to success; it isn’t. But marketing policies, such as “opt-in” and “opt-
invasive regulation of e-mail communications out,” of their own accord. In particular, the phe-
will have unintended (although not unforesee- nomenon of opt-in, permission-based e-mail, in
able) consequences for online commerce, which consumers expressly agree to receive e-
regardless of the impact on spam. Now is no mail from specific companies before they
time for tinkering. A recent report predicts that receive any, is on the rise. Such e-mail can look a
80 percent of San Francisco’s remaining lot like spam but is actually “friendly fire” (and
Internet companies will fail in the coming boasts enviable click-through rates!).2
months.1 Banner ad click-throughs are down, Not all unsolicited commercial e-mail is cre-
as is the money spent on such marketing. ated equal. Nor are all ISPs, which, in one major
Although unsolicited e-mail may be an annoy- proposal, would be given legislative immunity
ance to many of us, it is part of a larger picture for good-faith efforts to block and sue the
in which companies and entrepreneurs are senders of what is believed to be spam, even in
groping for ways to keep the Internet’s services the absence of customer consent, and in spite of
and options growing while making a profit. what might otherwise have been negotiated pri-
Spam legislation would be a significant new vately. That scenario would be a litigious night-
form of communications regulation, and the mare, resulting in considerable confusion.
effects would not be easy to contain. Government should enforce private contracts
It is not a given that businesses selling legit- regarding the delivery of such bulk mail, but it
imate products have any less right to use e- should not dictate the rules or facilitate one
mail than anyone else. The Internet as it exists party’s ability to set the terms unilaterally. It is
today is a public, open system, and no one can ironic, to say the least, that the very Congress
legitimately claim a right to exclude others that “spams” us with more than 4,000 regula-
2
tions each year proposes to protect us from in a March 20 letter to the House Energy and
sales pitches by such draconian methods. Commerce Committee. Spam critics fear that
Spam is just one form of marketing and is the marketing of preapproved credit cards will
arguably less invasive than door-to-door selling begin to take place online.7 Other observers
or telemarketing. There are clearly different lev- might see this evolution as a good thing. A
els of “guilt” with respect to spamming prac- commercialized Internet is critical to expand-
tices. It is best to allow people to decide for them- ing online services. Needless intereference with
selves whether or not to entertain sales pitches, Internet marketing would mean the loss of
particularly given the range of problems legisla- many services we get today.
tion would create. And to the extent that unso- Many ISPs like the idea of legislation to
licited marketing is responsible for the growth of control spam, because large amounts of spam
the Internet and future communications can hang up smaller networks that simply can’t
options, the hindrance of commerce could ham - absorb the traffic. The control of spam lessens
per access for many people, resulting in a gov- the burden of handling large amounts of traf-
ernment-created digital divide. fic for larger networks too, even those not nec-
essarily hostile to unsolicited mail. As Barbara
How Big Is the Spam Dooley, president of the Commercial Internet
The real issue in
Problem? Exchange Association, has noted: “No one
wants to stop legitimate marketing. We object dealing with
It is easy to see why spam is widely used by to marketers shifting costs to the networks.”8 spam is finding a
the unscrupulous. It’s as easy to send a million The shifting of costs from spammers to
e-mails as it is to send one, and the spammer ISPs is often noted, but it’s important to rec- way to shift the
gets to pass the costs on to ISPs and users, or ognize that those costs are not entirely unan- costs back to the
so it is alleged. Some organizations, like the ticipated: ISPs do not typically go into the
Coalition against Unsolicited Commercial E- business unaware of the presence of spam.
spammer. The
mail, have noted that spam accounts for about Between 1999 and 2000, for example, the esti- question is
10 percent of all e-mail traffic and has mated number of ISPs grew to more than whether the
remained at about that level, even as the 7,000, a 36 percent increase, despite the
Internet has grown.3 America Online has esti- entrenchment of spam in the marketplace.9 best way to
mated that spam accounts for up to a third of In fact, one reason that the cost of spam is accomplish that
its traffic.4 Meanwhile, a recent and frequently difficult to ascertain is that ISPs think of is through the
cited study by the European Commission dealing with spam as simply a cost of doing
indicates that, although expensive, “it is safe to business.10 Spam legislation might help some government or the
say the spam phenomenon is now in decline” ISPs avoid undertaking certain costs of marketplace.
and that spam had its “heyday” between 1995 upgrading facilities and networks that they
and 1998.5 voluntarily plugged into the Internet. But
Although spam clearly remains a problem, a that could damage the Internet as a whole if
political fix would invite mischief. The debate the amount of legitimate, multimedia traffic
is steeped in loaded language: take the word growth that emerges over the next few years
“spam” itself, or the depiction of gathering e- dwarfs spam. Spam will grow but might
mail addresses as “harvesting.” Some critics become increasingly smaller as a proportion
seem to detest unsolicited Internet commerce of total Internet traffic.
as a worldview, believe that marketers should Some Internet users will, of course, be
never contact individuals until explicit permis- affected by spam more than others, regardless
sion has been given, and declare portentously of aggregate levels. The real issue in dealing
that the “failure to control spam is the greatest with spam is finding a way to shift the costs
economic tragedy of the Internet age.”6 Similar back to the spammer. The question is whether
concerns were expressed when financial insti- the best way to accomplish that is through the
tutions opposed a variant of spam legislation government or the marketplace.
3
Legislative Proposals Private Means of Coping
with Spam
There are three key pieces of legislation
being considered so far in the 107th Congress. It is worth reviewing some of the means of
The Unsolicited Commercial Electronic Mail coping with spam that are available today or on
Act of 2001 (H.R. 718) was introduced by Rep. the horizon, because they help illustrate why
Heather A. Wilson (R-N.Mex.). The House legislation is not needed and underscore some
Energy and Commerce Committee markup of of the problems, outlined in the next section,
the bill (1) requires that senders give valid iden- that legislation can create by changing commu-
tifying information, (2) requires identifiers nications rules in an adapting marketplace.
indicating that the message is unsolicited and
offering the opportunity to opt out of future Individuals’ Tools to Attack Spam
transmissions, (3) allows ISPs to set policies People like to have their cake and eat it, too.
against bulk mail, and (4) allows recipients and Many want an open Internet (which, after all,
ISPs to sue spammers. A bill of the same title was the promise and attraction of the
sponsored by Rep. Wilson passed the House Internet)—as long as it’s not too open. We trea-
427 to 1 in the 106th Congress but was never sure the freedom to contact anyone we choose
voted on in the Senate. Legislators are rethink- but may not enjoy extending that freedom to
ing their rapid embrace of that legislation. Rep. others. But requiring e-mail users to give per-
Zoe Lofgren (D-Calif.), who had supported the mission to senders would be a fundamental
legislation in 2000, said at a House Judiciary change in the rules. For better or for worse, the
Committee hearing, “I question whether this is Internet has been, from the outset, an open net-
an appropriate area for legislation at all . . . peo- work. Of course, everyone has the right to delete
ple know how to deal with it now.”1 1 mail without opening it.
The Wilson bill was narrowed in the House That said, people want the spam problem
Judiciary Committee to criminalize bulk e-mail solved. At the individual user level, the basic
that contains falsified subject headers or origi- instructions for avoiding spam still apply: Read
nating e-mail addresses and to require that sex- the fine print before filling out online forms,
ually oriented spam be identified as such. The don’t post an e-mail address on Usenet news-
competing versions will be reconciled by the group postings or in chat rooms (even “mung-
Many want an House Rules Committee before floor action.12 ing” the address with an insert like NOSPAM
Sen. Conrad Burns (R-Mont.) has introduced won’t protect an e-mail for long),13 and try to
open Internet a related Senate bill, the bombastically named avoid posting an e-mail address on a personal
(which, after all, CAN SPAM Act of 2001 (S. 630), which omits the Web site. If necessary, set up a separate “junk” e-
private right of action to sue spammers. mail account to use in online interactions.
was the promise Rep. Bob Goodlatte’s (R-Va.) Anti-Spam- Finally, don’t respond to spam, even to ask to be
and attraction of ming Act of 2001 (H.R. 1017) would outlaw removed, since this is often just a trick to ensure
the Internet)—as both unsolicited e-mail that falsifies header or that an e-mail address is live. Instead, report and
routing information and the sale or distribu- send the spam to a service like SpamCop or
long as it’s not too tion of “spamware” programs that aid such your ISP, which will, in turn, report it to the
open. We treasure concealment. Rep. Rush Holt’s (D-N.J.) spammer’s ISP. Since most ISPs have “no
the freedom to Wireless Telephone Spam Protection Act spam” stipulations as part of their terms of ser-
(H.R. 113) would address the issue of wireless vice, this may help.1 4
contact anyone we spam, which promises to be a hot button in Users can take additional action to preempt
choose but may the near future. unwanted mail. For example, the Direct
The bills just mentioned will be altered in Marketing Association runs a list that Web
not enjoy extend- upcoming negotiations, but many of their surfers can visit and register to have their
ing that freedom basic elements are likely to be part of future names removed from e-mailing lists. DMA
to others. iterations of spam legislation. member companies must abide by those pref-
4
erences. According to the site, “All DMA mem - vate networks, such as eKids Internet and E-mail tools for
bers who wish to send unsolicited commercial JuniorNet, in which only members of the net- kids, such as that
e-mail must purge their e-mail lists of the indi- work itself, not “outsiders” on the public
viduals who have registered their e-mail Internet, participate. At the same time, many provided by E-
address with e-MPS [Mail Preference of the features of the public Internet are mail Connection,
Service].”15 The service can even block business- duplicated through partnerships, giving chil- can be set up so
to-business e-mail, a growing concern lurking dren the best of both worlds.)
in the background of the spam wars. Of course, Two potential ways of blocking spam, that a child can
most spam comes from companies that are not besides standard filtering, are the use of pass- correspond with
members of DMA. words and postage. Whereas filtering will zap
Beyond such preemptive moves, the filtering some innocent e-mail and will “leak” spam into only parent-
of e-mail is a common tactic for avoiding spam. the regular mailbox, password and postage sys- approved recipi-
E-mail filters can do a number of things: They tems hold the promise of avoiding those prob- ents, such as play-
can block spam by sending e-mail to a “bulk lems. Such tools are truly novel, removing even
folder” if the e-mail is not specifically addressed the need for opt-out requirements, because mates and family
to the recipient only but instead contains spam simply won’t reach one’s inbox except on members.
numerous hidden addressees. Filters can block the user’s terms. For example, one programmer
on the basis of the sender’s e-mail address offered, for several years, a program for Unix
(sometimes called “blacklisting”) or on the basis users in which the sender gets an automatic
of words in the subject line or body. The response containing a password when he sends
Hotmail e-mail system, for example, makes an e-mail, unless he is listed in the recipient’s
spam easy to deal with, even though the system “privileges database.” The sender must then
is itself quite susceptible to spam. At the user’s respond with the password embedded in the
option, bulk mail goes into a special folder and message. The initial autoresponse states: “Spam
is held there for two weeks and then automati- foiling in effect. My e-mail filter autoresponder
cally deleted. During that time, the user can will return a required e-mail password to users
open the folder and scan for legitimate mail not yet in the privileges database.”18 Since spam
that shouldn’t have been routed there. Rather is automatized with software that will never
than opening and reading any of the spam, a answer such a query, this process blocks spam.
user need only note legitimate messages and On a more user-friendly basis, a company
click the “This is not bulk mail” button. called MailCircuit offers spam-free e-mail ser-
Messages from those senders will never be sent vices on what it calls its “Handshake System.”
to the bulk bin again. The company ensures: “If you don’t want it, you
Increasingly, consumers can configure e- do not have to receive it,” noting, “Our Mail
mail to accept only certain addresses (“white- Verification Program stops unwanted mail peri-
listing”). If consumers so choose, the default od.”19 By this unique method, when e-mail
can increasingly evolve from today’s “everything comes to a recipient, the sender receives an
comes in unless you say no” to “nothing comes automatic message asking for a unique re-
in unless you say yes.” SpamCop, for example, sponse. If the sender replies, he is added to the
offers white lists or safe list filters, which can be “friends” list, and future messages go through.
integrated with existing e-mail accounts.16 Again, since spam is automatized, this process
E-mail tools for kids, such as that provided will stop it. If the spammer’s e-mail is fake, he
by E-mail Connection, can be set up so that a will not get the autoresponse, and the spam will
child can correspond with only parent- not be seen.
approved recipients, such as playmates and As noted in the next section, techniques are
family members.17 (Of course, problems of emerging by which ISPs can charge “postage” to
children’s unattended use of the Internet go legitimate e-mailers. We might eventually see, in
well beyond e-mail. But there are solutions for addition, mechanisms by which individuals are
that, too. Some parents have opted to join pri- paid postage for receiving unsolicited mail
5
(which might mirror the notice from sellers that one has the right to send e-mail any-
is often seen on eBay: “I accept PayPal.”). In where. It is a privilege that is granted by
some cases the recipient would collect the the owners of those networks.24
money. In others he might choose to waive the
fee, particularly if the system were to expand E-mail marketers should be held to the
beyond commercial e-mail to encompass all terms of the contracts they make with ISPs.
“unknown” e-mail.2 0 These systems might Those who are unfairly blocked can get around
entail massive reengineering of aspects of the e- the blacklists by contacting the major ISPs
mail communications infrastructure, however, directly to request reinstatement.
and they would also diminish some of the open Increasingly there will be ways for ISPs to
character that drew people to the Net in the first shift some of the cost and inconvenience of
place.2 1 But such tradeoffs are probably spam back to the spammer. One option is for
inevitable. What an innovation it would be for ISPs to develop ways to charge for commercial e-
individuals, rather than the U.S. Postal Service, mail. A company called ChooseYourMail
to collect postage! As they are starting to do “charges advertisers a delivery fee that is shared
with commercial mailers, ISPs may ultimately with the ISP. This enables the ISP to defray ris-
facilitate the payment of postage to individuals ing mail server costs and help keep monthly
Blacklisting can if the ISPs can share some of the spoils. access fees low for their subscribers.”2 5Such pay-
lead to problems, ment systems help place the burden where it
such as the ISP Tools to Attack Spam belongs and are an early step toward “postage”
In addition to the filters used by consumers, for commercial e-mail on the Internet. This
inadvertent various filtering options are available to ISPs, development meshes nicely with the concept of
blockage of non- such as those that root out e-mail with terms “permission marketing,” which is changing the
like “XXX” or “Earn Money Fast!” ISPs are also commercial mailing industry norms. In this par-
spammers, but it is able to block bulk mail that originates from adigm, consumers opt in to receiving e-mail, as
a perfectly dial-up accounts, which many spammers use to opposed to merchants sending it unsolicited.26
legitimate exercise hide their header information.22 “Postage” need not be paid in cash if the
ISPs also block known spammers listed in intent is to shift costs back to the sender of
of property rights. directories such as the Mail Abuse Prevention unsolicited mail. It could instead be “paid” by
System’s Realtime Blackhole List.23 Blacklisting the sender in consumed CPU (central process-
can lead to problems, such as the inadvertent ing unit) cycles.2 7 In this scenario, the message
blockage of nonspammers, but it is a perfectly would not go through until the sender’s com -
legitimate exercise of property rights. Some puter was forced by the recipient’s to perform a
bulk mailers regard blacklisting as vigilante mathematical exercise, which would weed out
behavior, and disputes often arise. Granted, the automated spamming programs.
ISPs may be going overboard in some instances, Other people envision a future in which
for example, when blacklisting any Web site ISPs would no longer be “naive,” as they are
that sends spam or that offers software that today, and in which anyone sending e-mail
could be used for spamming. But at least black- would need a unique identifier, a “license” of
listers are subject to market pressures and disci- sorts.28 Such unique identifiers would consti-
pline. In one recent instance, New Zealand’s tute a market version of the “identifier” that
largest ISP (Xtra), an accused spammer, sought legislation such as H.R. 718 would attempt to
to have itself removed from the Open Relay impose. ISPs and technology providers may
Behavioural Modification System blacklist. need to “collude” to implement such postage
However, as the operator of the list says: and identifier systems on a wide scale, so they
must be allowed to experiment.
What [Xtra] doesn’t seem to under- Privately owned networks, such as eKids, will
stand is that the Internet is a coopera- not experience significant problems with spam.
tive of privately owned networks. . . . No Commercial e-mail policies would be spelled
6
out to members by contract. Such networks industry. We are here to save it. We are simply
could disallow unsolicited mail altogether. forcing the bulk-mail industry to do the right
Some of those that permit it may require spam - thing.”31 His group maintains a list of people
mers to pay fees to account for the strain they who don’t want to be spammed. When individ-
place on the network. Or, conversely, network uals forward spam to Removeyou, the company
owners could require that member ISPs main- contacts the spammer and invites it to join. If
tain a capacity for a minimum volume of mail. the spammer joins, its lists will be purged of the
addresses of those individuals who do not wish
“Peer Pressure” on the Bulk Mail Industry to receive unsolicited e-mail. This can help the e-
As already noted, permission-based e-mail is mailer maintain a better image.
growing. This new industry is devoted to
spelling out the differences between “permission
e-mail” and spamming and touting the advan- Problems with Government
tages of the former.29 The embrace of this volun- Regulation of Spam
tary opt-in approach to marketing by online
merchants is a new source of peer pressure on Given the developments discussed above, it
the commercial mailing industry. Practitioners is apparent that in a number of ways the market
hope to make e-mail less intrusive and more is moving toward solutions to a problem that is
respectable—in other words, more welcome. arguably stabilizing. The fact that spam can be
What the market needs most now is time to annoying isn’t a sufficient reason for passing
adjust to these new realities, not legislation that laws against it. The prospects for privately tam -
might thwart them. Opt-in, permission mailing ing bulk e-mail are good, and legislation intend-
seems to be the future of mainstream Internet ed to target spam could hinder other methods
marketing because consumer response rates of online commerce and impede private solu-
exceed those for unsolicited mail: tions. A legislative cure would be worse than the
disease: It would create immense uncertainly
Permission e-mail has been identified and bring to bear needless, expensive enforce-
as the next generation of Internet mar- ment and litigation costs. Moreover, most small
keting. Enjoying significant click- businesses are not yet on the Internet. As they
through rates over banner ads and come aboard, they will not have an easy time
other forms of online marketing, it has getting over legislative hurdles to unsolicited
experienced phenomenal industry commercial mail or competing effectively
growth and has led Jupiter Communi- against established companies for whom e-mail
cations to predict that commercial e- marketing may not be crucial. The prospects for
mail marketing will become a $7.3 bil- Loopholes in legislation, which could easily
lion business by 2005. Forrester emerge from the give and take that will charac-
privately taming
Research reports e-mail use accounts terize a spam bill debate, could have unintend- bulk e-mail are
for more than 35 percent of all time ed consequences. What if a loophole explicitly good, and
spent on the Internet and estimates permits certain kinds of bulk mail that emerg-
that 50 percent of consumers will be ing market institutions would have chosen to legislation
communicating via e-mail by 2001. shut out? For example, recent federal medical intended to target
Clearly, permission e-mail has emerged privacy standards granted to pharmacies the
as one of the most powerful Internet right to share consumer information with third
spam could
marketing mediums ever. 30 parties, although consumers might have pre- hinder other
ferred to negotiate otherwise. methods of online
Third-party stamps of approval will arise as Another spam battleground will likely
bulk mailers seek to legitimize themselves. As emerge in the area of wireless devices such as cell commerce and
Removeyou.com’s Thomas Brock told the Wall phones and hand-held computers. Ironically, it is impede private
Street Journal: “We are not here to kill the spam the government’s mandate that cell phones solutions.
7
Ironically, it is the incorporate 911 location capability that has icy on commercial e-mail.”36 Such pressure will
government’s swung the door open to spam in this particular not go away, and today’s legislative prospects are
arena. The mandate is costly, and the best way for the camel’s nose under the tent. Opt-in laws
mandate that manufacturers to pay for it is to allow marketers would outlaw all contacts except for those
cell phones access to customers. Some consumers worry specifically agreed to in advance—a clear consti-
incorporate 911 about the possibility of being tracked by wireless tutional problem and a death sentence for elec-
devices and getting electronic notification of dis- tronic commerce (particularly for small firms).
location capability counts at stores they pass on the street and worry Levels of abuse vary. Some spammers send
that has swung the about the electronic profile that would emerge.32 only a handful of mailings at a time, say a hun-
Nonetheless, the industry’s trade associations, dred or so targeted e-mails, and work diligently to
door open to sensitive to public reaction and its impact on remove from their list those who want no further
spam in this profits, are, of their own accord, devising opt-in contact. Others exhibit contempt for those who
particular arena. standards that would ensure that no customer don’t want their messages.37 Legislation would
gets pitched without having granted permis- inappropriately lump those groups together.
sion.33 Thus, it is noteworthy that even when gov- As it stands, H.R. 718 defines a “commercial
ernment “subsidizes” unsolicited mail, peer pres- electronic mail message” as one that “primarily
sure kicks in to control it. advertises or promotes the commercial avail-
Most legitimate vendors are increasingly ability of a product or service for profit or
offering opt-in or at least opt-out options for invites the recipient to view content on an
customers, and consumer protections are Internet Web site that is operated for commer-
becoming quite sophisticated, yet easy to use. cial purpose.” That is quite a loose definition.
Although the uncertainties and regulatory hur- What will count as “primarily,” for example?
dles that will come from legislation will hobble Many newsletters that are not wholly commer-
legitimate businesses, the laws will be unen- cial include links to Web sites that are run for
forceable as far as the most offensive material profit. Is that spam or not? Even electronic
goes, as these operations can easily relocate newsletters from media services, which some-
overseas. In fact, much spam already originates times contain advertisements and links
from Pacific Rim nations.34 between stories, could conceivably face prob-
lems. It is unfair to treat ads differently just
What Will Count as Spam? because they happen to be part of a news ser-
Spamming used to refer to the practice, by vice, and someone will inevitably point that fact
an individual, of posting the same message to out. The media business is for-profit, after all.
numerous newsgroups.35 Might the definition Even organizations that are primarily
of illegal unsolicited e-mail change over time? informational in nature, perhaps even labors
Will it be sensibly defined in the first place? It is of love (say a gardening Web site) that allow
conceivable that, in the wide universe that is the sponsors to insert brief advertisements in e-
Internet, spam could come to mean not just mail newsletters, could face trouble from
“unsolicited commercial” e-mail but other spam legislation. And, given the penalties in
unsolicited communications as well. the proposed legislation, there are clearly
It is uncertain what will ultimately count as incentives to go on spam hunts, looking for
unsolicited commercial e-mail. If a reputable evil embedded in every e-mail.
company sends mail unasked but provides a In such an environment, regulation could
return address and removes your name when lead to better-disguised spam, more annoying
requested, that would presumably be legal than today’s blatant version. Spam legislation
under proposed legislation. Businesses would that attempts to split hairs between what is
get one bite at the apple, so to speak. But that commercial and what is not could lead to our
could easily change as spam legislation is further receiving dubious “public service announce-
debated and modified. Some consumer groups ments” that happen to include an offer for a
are calling for a “federally mandated ‘opt-in’ pol- product somewhere down the line.
8
Another unanswered question regarding people might argue that those are even more
the definition of spam is the status of political intrusive than unsolicited e-mail.
e-mailings. Some Internet users may already get Rep. Goodlatte’s H.R. 1017 would ban the
more junk mail from their representatives than use of false e-mail return addresses in commer-
they do from spammers. Rep. Bob Goodlatte cial e-mail, as well as the software used to hide
(R-Va.) mentioned “chain letters” in testimony header information. The proposed requirement
offered to the Senate.38 Would those be subject that valid header information be shown has sig-
to legislation? Gartner Group Inc. has referred nificant implications for free speech because of
to potentially nuisance e-mail in the workplace its impact on legitimate anonymous speech by
as “occupational spam,” the removal of which senders. As strange as it may sound, spam and
would create “a 30 percent savings in the time the use of spamware happen to be means by
that is usually lost in handling unproductive e- which individuals can maintain a cloak of
mail.”3 9 Are forwarded jokes or hoaxes part of anonymity. Anonymous speech is a cornerstone
tomorrow’s spam problem, too? What about e- of our Republic. Thomas Paine’s Common Sense
mailed press releases (“For Immediate Release”) was signed “An Englishman.” The Federalist
blasted from public relations firms? The broad- Papers were signed “Publius.”41 Given that the
ening of what is classified as spam is not that Internet can serve as the “anonymous pam -
remote a possibility. phlet” of today, individuals must retain the
As strange as it
right to safeguard their anonymity even in (or may sound, spam
Unintended Impacts on the Right to perhaps especially in) a mass-communications and the use of
Anonymity and Free Speech tool like e-mail.42 Another twist on the theme of
Mandatory opt-in rules for e-mail have seri- anonymity is Spam Mimic, a Web site that dis- spamware hap-
ous implications for free speech. Spam is, at guises a normal message by making it look like pen to be means
bottom, merely advertising. Such business spam so that e-mail “sniffers” might be more
speech is simply speech that proposes a trans- likely to ignore it.43
by which
action. While anti-spammers believe customers Individuals must not lose the right to send individuals can
should ask before being solicited, there is a anonymous bulk mail, and hiding one’s identi- maintain a cloak
viewpoint among some bulk mailers that the ty in spamware is the practical means of doing
Internet is a public resource, created in part so. Very simple, thumbnail-sized code may be of anonymity.
with taxpayer funds, and that e-mail addresses, enough to forge the “from” line of an e-mail.44
like street addresses, are a matter of public Yet H.R. 1017 could make such simple but crit-
record.40 To the extent that is true, there is a ical bulk-messaging software illegal.
problem in saying that we shall enjoy the free- As we sit on the cusp of a revolution in peer-
dom to contact or visit companies anytime we to-peer networking, the Internet is the most sig-
like, but they can’t contact us. Even the opt-out nificant, largely unregulated, open forum we
requirement in legislation like H.R. 718 can be have. The benefits of leaving it alone, despite
problematic: does it preclude all future contact problems with some of the “communicators”
from a company by e-mail or just contact that populate cyberspace, vastly outweigh the
about a particular subject or offering? It is fine potential costs.
for consumers to effect complete blackouts In a way, the spam debate helps illustrate
from companies if they like. But implementing that the underlying Internet debate is not really
this with federal legislation is overly heavy- about privacy, even though that gets a lot of
handed, arguably even a violation of free media attention these days. The real question is
speech, and better left to emerging contractual whether the government will allow individuals
relationships. to remain anonymous when they actually have
In addition, such limitations would set a the technological means to do so.
troubling precedent. Could advertising restric- Spam legislation would take away with one
tions spread elsewhere, for example, to the hand what the government proposes to give
increasingly common Web pop-up ads? Some with the other in the high-profile privacy
9
debate now taking place. Anti-spam legisla- of spam.46 Recent testimony in the Senate on
tion would artificially damage the ability of spam legislation noted how customers can be
individuals to safeguard their own privacy and “cut off” without their knowledge:
would help set the stage for unnecessary priva-
cy regulations. That is the kind of unintended We are concerned about reports that
consequence that can result when the govern- ISPs, in their eagerness to help their
ment believes regulation is the solution to subscribers avoid receiving unwant-
every problem. ed UCEs [unsolicited commercial e-
mails], may block e-mail that sub-
Federal Immunity for ISPs Will Distort scribers not only want, but have
Emerging Internet Markets specifically contracted to receive as
Some versions of legislation would explicitly part of an electronic business rela-
permit both blocking of commercial e-mail and tionship. . . . [The bill] does nothing
fines by ISPs. ISP policies on blocking spam are to prevent this from happening, and
certainly appropriate. Putting such policies into does not even require ISPs to give
federal law would, however, amount to an notice to consumers that they intend
unwarranted federalization of contracts. to block, or that they have blocked,
ISPs already have the right to block spam, the transmission of e-mail either in
but some proposed legislation would give them general or from particular senders.47
financial incentives to do so. Since many legiti-
mate communications can easily be confused Spam has been around for a long time, pre-
with spam, legislation could induce ISPs to dating many ISPs that nonetheless chose to
block them more readily. Today’s ISP-initiated hook up to the Net. Not all ISPs are created
efforts to block spam are “regulated” by the equal, and some are even “spam-friendly.” For
market, which provides some restraint. example, in one case, a bulk e-mailer called
Monetary legal remedies, however, along with MonsterHut won a temporary injunction
legal immunity for ISPs, would generate unnec- requiring an ISP to continue transmitting
essary confusion, frivolous lawsuits, and inter- bulk mail over its network on the basis of a
ference with legitimate marketing in a market- contract specifying that MonsterHut had the
place that is already developing spam remedies right to do so.48 Interestingly, while the popu-
on its own. lation of ISPs has grown despite the existence
Legislation should not interfere in the of spam, some people believe it is the ISPs
complex relationships between ISPs, mar- whose days are numbered, arguing that the
keters, and users. The ability of ISPs to block market is going to gravitate toward fewer large
e-mail with impunity, even in good faith, as providers as the broadband Internet grows
specified in the legislation, casts doubt on and eventually overtakes dial-up services.4 9 If
the promise that prearranged or permission- that occurs, the remaining ISPs could wield
Spam legislation based e-mail would get delivered. Indeed, an greater contractual control over the bulk e-
amendment to the version of H.R. 718 mail moving through their systems, further
would take away marked up in the House Energy and rendering legislation unnecessary.
with one hand Commerce Committee gives a sweeping opt- Legislation that would endow ISPs with sig-
what the govern- out right to ISPs, allegedly similar to the one nificant new power would disrupt permission-
given consumers.4 5 based e-mail alternatives, just as they are gain-
ment proposes to Just as ISPs might engage in good-faith block- ing a foothold. Legislation, as Jerry Ceresale of
give with the other ing, companies sometimes send e-mail by mis- DMA put it, “doesn’t account for prior rela-
take or with no ill intent. Yet the good-faith tionships.”50 It will become increasing common
in the high-profile clause would allow an ISP to block out and sue for people to transfer commercial agreements
privacy debate companies, or even smaller competing ISPs, that to the online world, yet spam legislation would
now taking place. may have been wrongly accused of being a source needlessly put such arrangements at risk.
10
Will ISPs know, care, or bother to keep track that the consumer is entitled to such payment Another problem
of the fact that a consumer has signed up, but that such an outcome might be a sensible is establishing
whether offline or online, to receive informa- resolution of the spam problem. A regulatory
tion from, for example, Sears, Gap, or Tower “solution” could foreclose what could be a what qualifies as
Records? Will an ISP block mailings from the unique opportunity. “clear and
Scotts Company reminding registered cus- conspicuous”
tomers when to put down fertilizer and grass A Spam Identification Requirement
seed? Breaking the shrink-wrap and lid on new Creates Problems identification of
software can indicate acceptance of the soft- Another problem is establishing what quali- spam in a message
ware’s usage agreement, and installation of the fies as “clear and conspicuous” identification of
software can automatically send “home” over spam in a message header, as some proposals header. . . . The
the Internet the user’s consent to receive future would require. Usually, spam is obvious to the intent of that
e-mailings and updates. Will ISPs interfere with recipient at first sight. But legislation would requirement
those communications? As friendly commer- require an explicit identifier in the heading of
cial e-mail traffic grows, new regulations could the e-mail, such as the word “SPAM.” seems to be to aid
create problems. Those transmissions may The intent of that requirement seems to be spam filters, but
increasingly contain critical or time-sensitive to aid spam filters, but that might not be the
information, such as financial data. Similarly, result. Filtering technologies may be moving in
that might not be
items like notices to members from trade asso- directions that would be impeded by mandato- the result.
ciations or clubs could be blocked in error. In ry identifier information. Those requirements
addition to the lawsuits that would be filed by may also conflict with other types of private
ISPs against alleged spammers, we could see an identifiers for solicited or unsolicited commer-
overwhelming amount of litigation resulting cial e-mail. Mandatory identifiers could also
from interference with private communica- interfere with “preview screen technology used
tions. Mark Lackritz, president of the Securities by many consumers to rapidly screen messages
Industry Association, characterized H.R. 718 as and their content.”5 3 Besides, such tagging
a “trial lawyer’s relief act.”51 might require companies to obtain legal coun-
According to the sponsors of H.R. 718, a sel on what counts as “clear and conspicuous,”
“pre-existing” relationship would allow a com - leading small or reluctant businesses to avoid e-
pany to continue contacting the customer by e- mail altogether.
mail in spite of the legislation. In addition to the Identifiers would hurt small businesses in
risk that such e-mail would inadvertently be particular by unfairly stigmatizing unsolicit-
blocked, that provision could lead to a scramble ed mail. For example, identifiers would likely
by companies to collect personal data that they fail to distinguish between “XXX” and, say,
might otherwise not have bothered about.52 “home gym equipment” or “flower seeds,” an
There’s nothing wrong with accumulating such important distinction in the minds of many
information, but creating artificial pressure to consumers. Identifiers could also cause con-
sign up customers in advance of sweeping anti- fusion in cases in which messages are only
spam rules (H.R. 718 would take effect 90 days partly commercial.
after enactment) seems counter to the spirit
allegedly motivating this legislative push. Spam Legislation Can Hinder Emerging
When ISPs reduce traffic unilaterally, con- Messaging Technologies
sumers may be free of spam, but they may also The desktop is today’s dominant means
miss out on desired communications. Legis- of accessing the Internet, but it is entirely
lation would relieve ISPs of critical market conceivable that, over time, it will decline sig-
incentives to create superior solutions, such as nificantly in importance relative to mobile
“postage” systems, whereby ISPs and their con- and other devices (hand-helds, cell phones,
sumers get paid for each piece of unsolicited the Carrier/GE Internet-connected ther-
commercial mail they accept. This is not to say mostats, automobiles, and so on).
11
Those are struggling industries and services, that police Web sites according to user prefer-
and new marketing strategies will be needed if ences being just one of many options available
they are to proliferate. Legislation impeding to consumers. Consumers share no single level
commercial e-mail could stall them. of privacy, and no government rule is capable of
Strategy.com, for example, is facing severe hard acknowledging that fact.
times after parent MicroStrategy disclosed in Levels of privacy protection are competitive
2000 that it had overstated sales and earnings. features, as they should be. Markets are essential
Strategy.com also faces a skeptical venture capi- to providing the mix of features people desire.
tal environment.54 But the company had been The proper role for government is to enforce
one of the most prominent outfits with a busi- privacy contracts when they are violated by the
ness plan centered on offering targeted services companies that offer them, not to dictate such
to consumers over remote devices. Artificial contracts in legislation.
restrictions on commercial e-mail are the last Privacy legislation, particularly the opt-in
thing companies in these struggling service variety that is so admired, also violates free
areas need. speech. Even if corporate free speech is the
Legislative precedent could also hinder initial target, media speech could easily end
emerging services such as Instant Messaging up in the crosshairs. Privacy is a key value and
At bottom, what’s (the compact nature of IM may not lend itself people want it protected. Ultimately, the
being proposed to opt-out messages or identifiers), advertising question is, who provides the best discipline,
with spam on the eventual wireless Web, peer-to-peer inter- markets or politicians?
actions, and even services like the Internet fax- Spam legislation amounts to a stealth priva-
legislation is ing tools offered by J2 Global Communi- cy bill, in the sense that it seeks to impose the
the further cations (formerly Fax4Free.com) or eFax. rudiments of ill-considered privacy legislation
At bottom, what’s being proposed with in the presumably narrow arena of unsolicited
regulation of spam legislation is the further regulation of e-mail. But this opens the door to sweeping
communications. communications. E-mail just happens to be the anti-commercial policies and a range of unin-
E-mail just format of the day that lends itself to marketing. tended consequences. One can easily anticipate
As noted, even the adoption of pop-up ads on the alleged “reasonableness” that a future legis-
happens to be the the Web would be suspect under spam legisla- lator might invoke in applying the anti-solicita-
format of the day tion. After all, no one explicitly asks for those tion principles of spam legislation to the
that lends itself to ads. Interestingly, spam legislation limiting e- Internet at large: “My new legislation simply
mail marketing could unintentionally promote applies the reasonable consumer protection
marketing. pop-up marketing in the short term, leading to principles embodied in ‘opt out’ language from
yet another backlash. spam legislation to Web sites and pop-up ads.”
Spam Legislation Is a Pathway for Ill- Unreasonable Statutory Penalties Create
Considered Privacy Legislation Mischief
Some Internet users claim that spam vio- The fines stipulated in proposed legislation
lates privacy. Spammers use data robots to “har- exceed the actual harm done by typical spam.
vest” e-mail addresses from newsgroups and Remedies of $500 per incident (up to a $50,000
Web sites; however, they do not typically know maximum), as appeared in the version of the
anything about the individuals they bombard Wilson bill marked up by the Commerce
with e-mail. But if legislation imposes manda- Committee, would be off-putting to many
tory opt-in or opt-out policies, or both, with small businesses thinking of trying to conduct
respect to marketing, that will pave the way for e-mail marketing. The risk of being sued
broader privacy legislation that could have sev- wrongly is obvious. Surely, it’s not that much
eral negative effects. of a burden to delete unwanted e-mail or take
Tools to secure Internet privacy are improv- other steps to not receive it in the first place.
ing all the time, with new browser technologies The level of federally specified remedies creates
12
significant potential for mischief. If people are The government can’t stop spam. In the The government
going to get $500 for every unwanted e-mail, final analysis, the market will have to do the can’t stop spam.
spam hunting could be much more lucrative heavy lifting. Regulation is likely to simply
than a job. harm legitimate commerce. In trying to legis-
E-mail has always operated on the principle late against unsolicited mail, it is all too easy to
that everyone need not grant explicit permis- hamper the flow of solicited mail, too. Congress
sion to be contacted, which is arguably the should resist the temptation to pass clumsy and
essence of the Internet revolution. If that intrusive laws in response to constituents’ every
premise were to be reversed and penalties petty annoyance.
added, that would represent a fundamental
change, offering plenty of opportunity for
mischief. For example, e-mail could come Notes
from a familiar seller, but a user could claim he 1. Noted in Elisabeth Goodridge, “Bleak Future
didn’t remember consenting and could sue. Predicted for San Francisco Internet Firms,”
Often, consumers sign up with merchants Information Week.com, March 29, 2001, http://
who indicate they may pass on the informa- www.informationweek.com/story/IWK20010329S
0002.
tion, although the consumer doesn’t explicitly
give permission. 2. The term “friendly fire” was used by columnist
Ironically, the end result of spam legisla- Leslie Walker in “Buried under a Mountain of
tion could be the creation of hordes of lawyers Spam,” Washington Post, May 3, 2001, p. E8.
specializing in offering to help individuals lay
3. John Mozena, cofounder and vice president,
claim to the $500 remedies they are “entitled” Coalition against Unsolicited Commercial E-Mail,
to. One must wonder, would those solicita- as cited in Jim Hu, “Yahoo Adds Spam Filter to E-
tions qualify as spam? mail, but Will It Work?” CNET News.com, December
1, 1999, http://news.cnet.com/news/ 0-1005-200-
1476013.html.
Conclusion 4. Cited in Maureen Sirhal, “Experts Struggle to
Gauge Impact of ‘Spam,’” National Journal’s
The Federal Trade Commission already has Technology Daily, May 7, 2001, p. 4, http://nation
power to “prosecute fraudulent or misleading aljournal.com/about/technologydaily/.
commercial e-mails.”5 5 States, likewise, have 5. Quoted in ibid.
powers to prosecute fraud. Some e-mail pitch-
es are clearly fraudulent, and some spam 6. Jason Catlett, president and CEO, Junkbusters
accounts are even set up with fake or stolen Corp., Testimony and Statement for the Record on
credit cards.56 Those should be targeted. Unsolicited Commercial E-mail before the
Communications Subcommittee of the Senate
Otherwise, it’s better to let existing and emerg- Committee on Commerce, Science, and Transpor-
ing market tools address the spam problem tation, April 26, 2001, p. 2.
than to risk the harmful impacts of legislation
on legitimate commercial e-mail, emerging 7. Jennifer DiSabatino, “Privacy Advocates Say
Amended Spam Bill Lacks Teeth,” Computerworld,
Internet communications methods, and free April 17, 2001, http://www.computerworld.com/
speech. ISPs should, and do, have a right to cwi/story/0,1199,NAV47_STO59815,00.html.
block unsolicited commercial e-mail. Such pri-
vate efforts by ISPs to block spam do not con- 8. Quoted in Michael Schroeder and Glenn R.
stitute state action—the networks are private Simpson, “Lobbying Effort Fails to Block ‘Spam’ E-
mail Bill,” Wall Street Journal, March 29, 2001, p. A4.
property, after all. But federally promoted
incentives to block spam with impunity, and 9. Cahners In-Stat Group, “National ISPs Stand to
to sue the alleged offender when private con- Gain Most in Growing U.S. Market,” September 25,
tracts may have evolved otherwise, will create 2000, http://www.instat.com/pr/2000/is0004sp_
unnecessary chaos. pr.htm.
13
10. Noted in Sirhal, “Experts Struggle,” p. 4. 27. McCullagh, “Consuming Spam Mail.”
11. Maureen Sirhal, “Lawmakers Question Need for 28. Michelle Finley, “Other Ways to Fry Spam,”
Regulation of Spam,” National Journal’s Technology Wired News, April 24, 2000, http://www.wired.com/
Daily, May 10, 2001, http://nationaljournal.com news/print/0,1294,35776,00.html.
/pubs/techdaily/pmedition /tp010510.htm.
29. See, for example, Walker, p. E8; and Goldstein.
12. Adriel Bettelheim, “House Judiciary Committee
Narrows Scope of Bill Aimed at Regulating ‘Spam,’” 30. YesMail.com, “About Permission e-mail,” http://
CQ Weekly, May 26, 2001, p. 1262. www.yesmail.com/learn/.
13. See http://www.antionline.com/features/jargon 31. Quoted in Hamilton.
/spamblock.html.
32. For an overview of this issue, see Heather
14. Noted in J. D. Biersdorfer, “To Protest Unwanted
Fleming Phillips, “Wireless Industry Treads
E-Mail, Spam Cop Goes to the Source,” New York
Carefully on Privacy,” February 7, 2001, http://
Times, June 24, 1999, http:// www. nytimes.com/libr
ary/tech/99/06/circuits/articles/24spam.html. www.siliconvalley.com.
15. The DMA’s list is available at http://www.e-mps. 33. See, for example, Simon Romero, “Locating
org/en/. Devices Gain in Popularity but Raise Privacy
Concerns,” New York Times, March 4, 2001, http://
16. See, for example, David P. Hamilton, “You’ve Got www.nytimes.com/2001/03/04/technology/04L
Mail (You Don’t Want),” Wall Street Journal, April 23, OCA.html.
2001, p. R 21.
34. Noted in McCullagh, “Consuming Spam Mail.”
17. Information is available at http://www.e-mail-
connection.com/EMKFINAL.html. 35. Noted in James W. Butler III and Andrew Flake,
“The Effective Control of Unsolicited Commercial
18. See http://www.uwasa.fi/~ts/info/spamfoil. E-mail,” Internet Policy White Paper, U.S. Internet
html. Industry Association, September 1988, p. 1, http:
//usiia.policy.net/pubs/.
19. For an explanation of the process, see http://
www.mailcircuit.com/handshake.htm. 36. Maureen Sirhal, “Anti-Spam Bills Debated at
Hearing, in Letters,” National Journal’s Technology
20. See, for example, Declan McCullagh, Daily, April 26, 2001, http://nationaljournal.com
“Consuming Spam Mail,” Contributors’ Forum, /pubs/techdaily/pmedition/tp010426.htm.
Library of Economics and Liberty, February 12,
2001, http://www.econlib.org/library/columns/Mc 37. Geoff Duncan, “Those Bulk E-Mail Blues,”
Cullagh spam. html. TidBITS, September 30, 1996, http://db.tidbits.
com/getbits.acgi?tbart=00863.
21. Paul Hoffman and Dave Crocker, “Unsolicited
Bulk E-Mail: Mechanisms for Control,” Internet Mail 38. Bob Goodlatte, Testimony on Spamming before
Consortium Report: UBE-SOL, May 4, 1998, http:// the Communications Subcommittee of the Senate
www.imc.org/ube-sol.html. Committee on Commerce, Science, and Transpor-
tation, April 26, 2001, http:// www.senate.gov/
22. Hamilton. ~commerce/hearings /0426buc.PDF.
23. See http://www.mail-abuse.org.
39. “Please, Don’t Share,” Sidebar in DiSabatino,
24. Quoted in Michael Foreman, “Xtra May Use http://www.computerworld.com/cwi/story/0,1199,
Court to Get Off Blacklist,” New Zealand Herald NAV47_STO59815,00.html.
Online, May 1, 2001, http://www.nzherald.co.nz/
storyprint.cfm?storyID=184372. 40. Duncan, http://db.tidbits.com/getbits.acgi?tbart
=00863.
25. ChooseYourMail, http://www.mailcircuit.com/
cym.htm. 41. See Jonathan D. Wallace, “Nameless in Cyber-
space: Anonymity on the Internet,” Cato Institute
26. See, for example, Linda A. Goldstein, “Permis- Briefing Paper no. 54, December 8, 1999, p. 2, http:
sion E-Mail Marketing vs. Spamming,” Digitrends. //www.cato.org/pubs/briefs/bp54.pdf.
net, November 24, 2000, http://www.digitrends
.net/marketing/13640_12335.html. 42. Ibid.
14
43. The Spam Mimic Web site is http://www.spam news/0-1005-200-5668645.html.
mimic.com.
49. Nico Detourn, “The High-Speed Decline of the
44. See, for example, Declan McCullagh, “Use a ISP,” Motley Fool, December 13, 2000, http://
Spam, Go to Prison,” Wired News, March 24, 2001, www.fool.com/Server/FoolPrint.asp?File=/news/2
http://www.wired.com/news/print/0,1294,42599, 000/twx001213.htm.
00.html.
50. Quoted in Declan McCullagh and Ryan Sager,
45. Noted in Adam S. Marlin, “Anti-Spam Bill “Cooking up a Revised Spam Bill,” Wired News,
Approved by Panel over Industry Objections,” CQ March 27, 2001, http://www.wired.com/news/
Daily Monitor, March 29, 2001, p. 6. print /0,1294,42630,00.html.
46. See, for example, U.S. Internet Industry 51. Quoted in Sirhal, “Lawmakers Question Need,”
Association, Letter to Rep. Heather Wilson, p. 6.
February 17, 2001. Copy in author’s files. The
USIIA can be contacted at http://www.usiia.org/ 52. Butler and Flake, p. 8.
contact. html.
53. Ibid.
47. Jeremiah S. Buckley, general counsel, Electronic
Financial Services Council, Testimony before the 54. See Cynthia L. Webb and Dina ElBoghdady,
Communications Subcommittee of the Senate “MicroStrategy Unit to Slash Staff: Strategy.com
Committee on Commerce, Science, and Transpor- Will Reduce Its Workforce by Two-Thirds,”
tation April 26, 2001, p. 3, http://www.senate.gov Washington Post, May 5, 2001, p. E1.
/~commerce/hearings/0426buc.PDF.
55. Noted in Sirhal, “Anti-Spam Bills Debated.”
48. Stefanie Olsen, “Giving Spam the Network
Boot,” April 19, 2001, http://news.cnet.com/ 56. Hamilton.
Published by the Cato Institute, Policy Analysis is a regular series evaluating government policies and offer-
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15
