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Why Canning “Spam” Is a BadI_a

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					                   Why Canning “Spam” Is a BadI&a

                                         by Clyde Wayne Crews Jr.



                                       Executive Summary

        Everyone hates getting “span-~” 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 legislatioa
    addressing the issue legislatively will create more         At bottom, spam legislation kicks open the
                                       s
    hassles than does sparn itself: It’ not apparent that   door to fi.u-ther regulation of business communi-
L   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-                                        s
                                                            tial to the growth of tomorrow’ online services
    geting only the most egregious spam won’ work,t         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. Iq$ation, 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 sof&at~ that can hide iden-
    change the default, for those who want it, from         tifyinginformation would have signi!iicant implica-
    today’ “everything reaches your mailbox unless
            s                                               tions for anonymous speech-a cornerstone of our
    you say no” to “nothing comes in unless you say         Republic. Strange as it may sound, sparn 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 fi-ee speech.
L
    Clyde Wayne CrewsJr. is director oftechnology studies at the Cato Institute.
         Unsolicited                  Iintroduction                           according to his particular preferences. As in
   commercial mail                                                            the offline world, the government’s role
                            In the escalaring 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 “span-r,” it is important to remember            Solutic~ns 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 wzy. Furrhermore, we are seeing signs
          is more an    and engaged anti-spam contingent, the ideal           that the spam problem, although terrible, is not
annoyance &an an        amount of unsolicited commercial e-mail is not        getting worse. Government should not use the
                        equal to “none” for everyone. Sometimes, com-         novelty ofthe technology to jusri@ intervention.
    assault except in   mercial e-mail is welcome or otherwise consid-        Conditions are changing every day. Congress
      rather specific   ered “friendly,” even ifunsolicited                           t
                                                                              doesn’ have all the answers to the sparn 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
                              s
                        sage’ 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 fav 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’ But
                                                                    t.        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!)?
                        months.’ 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-12th efforts to block and sue the
                        in which companies and entrepreneurs are              senders of what is believed to be spar-n, even in
                        groping for ways to keep the Internet’ services
                                                                s             the absence ofcustomer 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. Thar 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             s
                                                                              party’ 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
        dons 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 fe;u 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.’ 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 fbr them-       ing online services. Needless intereferenc:e 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 span-i lessens
        per access for many people’ resulting in a gov-             the burden of handling large amounts of traf
        ernment-created digital divide                              fit 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       dealingwith
            It is easy to see why spam is widely used by            to marketers shifting costs to the networks.‘”      spam is fmding a
                               s
        the unscrupulous. It’ as easy to send a miIlion                 The shifting of costs from spamm.ers to
        e-mails as it is to send one, and the spammer               ISPs is often noted, but it’ important to rec-
                                                                                                 s                      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
L   -   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? America Online has esti-                entrenchment of spam in the marketplace.g           best way to
        mated that spam accounts for up to a third of               In fact, one reason that the cost of sparn is       accomplish that
        its traffic.4 Meanwhile, a recent and frequently            diff&lt to ascertain is that ISPs think of
                                                                                                                        is through the
        cited study by the European Commission                      dealing with span-t as simply a cost of doing
        indicates that, although expensive, “it is safe to          business.” Spam legislation might help some         government or the
        say the span-r 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 f= 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 span-r. 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 cotuse, 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.‘ Similar              back to the spammer. The question is whether
i
        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
                              Legisl.alive Proposals                             Private Means of Coping
                                                                                             withspam                   I
                          There are three key pieces of legislation
                      being considered so &r in the 107th Congress.              It is worth reviewing some of the means of
                      The Unsolicited Commercial Electronic Mail             Coping wkh Span 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’ Took to Atrack 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                                       s
                                                                             Internet)-as long as it’ 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 Ofcourse, evetyone has the right to delete
                      ple know how to deal with it now.“”                    mail without opening it.
                          The Wilson bill was narrowed in the House             That said’ people want the spam problem
                      Judiciary Committee to crim&&e 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 piint before fang out online forms,
                      ually oriented spam be identified as such. The              t
                                                                             don’ 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 actioni             ing” the address with an insert like NOSPAM
                                                                                                                    3
                          Sen. Conrad Bums (R-Mont) has introduced                 t      ect
                                                                             won’ prot’ an e-mail for long),‘ and try to
    open Internet     a related Senate bill, the bombasticaIly named         avoid posting an e-mail address on a personal
  (which,&r&          CANSPAMActof2001(S.630),whichomitsthe                  Web site. If necessary, set up a separate L$mk” e-
                      p&are right of action to sue spammers.                 mail account to use in online interactions.
 was the promise          Rep. Bob Good&e’ (R-K) Anti-Spam-
                                                  s                                        t
                                                                             Finally, don’ 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
          s
long as it’ 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-NJ.)                             s
                                                                             spamrner’ ISP. Since most ISPs have “no
                      Wireless Telephone Spam Protection Act                 spam” stipulations as part of their terms of ser-
   the heedom to                                                             vice, this may help.”
                      (H.R 113) would address the issue of wireless
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 bilIs just mentioned will be altered in        Marketing Association runs a list that Web
 not enjoy extend-    upcoming negotiations, but many of their               surfers cart visit and register to have their
 ing that fkeedom     basic elements are likely to be part of future         names removed from e-mailing lists. DMA
         to ohers.    iterations of sparn legislation.                       member companies must abide by those pref-



                                                                             4
L    erences. According to the site, ‘ DMA mem-
                                          Au                     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].“” The service can even block business-             duplicated through partnerships, giving chil-
    to-business e-mail, a growing concern lurking                dren the best of both worlds.)
                                                                                                                     can be set up so
    in the background of the spam wars. Of course,                  Two potential ways of blocking spam,             thatachildcan
    most sparn 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 sparn             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                                       t          s
                                                                spam simply won’ reach one’ inbox except on          members.
    numerous hidden addressees. Filters can block                         s
                                                                the user’ terms. For example, one programmer
                                       s
    on the basis of the sender’ 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 itselfquite 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 automari-              foiling in effect My e-r-nail filter autoresponder
L   tally deleted During that time, the user can                will return a required e-mail password tcl users
    open the folder and scan for legitimate mail                                                     *
                                                                not yet in the privileges database.“‘ Since spam
    that shouldn’ have been routed there. Rather
                   t                                            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.                                                                           t
                                                                The company ensures: “I fyou don’ 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-
                                                                o d”19
    listing”). If consumers so choose, the default                      By this unique method’ when (e-mail
    can increasingly evolve fi-om today’ “everything
                                             s                  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 acc~unts.‘     ~            Again, since spam is automatized’ this process
        E-mail tools for kids, such as that provided                                          s
                                                                will stop it. If the spammer’ 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.” (Of course, problems of                    enmging by which ISPs can charge “postage’ to
    children’ unattended use of the Internet go
              s                                                 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-
                                                  7
                        is often seen on eBay: ‘ accept PayPal.“). In            where. It is a privilege that is granted by
                        some cases the recipient would collect the               the owners of those networks.”
                        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 email to encompass all             terms of ,&he contracts they make with ISPs.
                        “unknown” e-mail.” 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?’ 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
    Blacklistingcan     if the ISPs can share some of the spoils.            access &es low for their subsaibersJJz Such pay-
  lead to problems,                                                          ment systems help place the burden where it
         suchasthe      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         adim consumers opt in to receiving e-mail, as
          a perfectly   dial-up accounts, which many spammers use to         opposed to merchants sending it unsolicitedz6
 legitimate exercise    hide their header informationz                           “Postage” need not be paid in cash if the
                            ISPs also block known spammers listed in         intent is tfo 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’ Realtime Blackhole List.= Blacklisting
                                 s                                           the sender in consumed CPU (central process-
                        can lead to problems, such as the inadvertent        ing unit) cycles2’ In this scenario, the message
                        blockage of nonspammers, but it is a perfectly       would not go through until the sender’ com-s
                        legitimate exercise of property rights. Some                                            s
                                                                             puter was ibrced by the recipient’ to perform a
                        bulk mailers regard blacklisting as vigilante        mathematkal 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-   sorts9 Such unique identifiers would consti-
                        pline. In one recent instance’ New zeaand’       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                         Ps
                                                                             impose. IS’ and technology providers may
                        Behavioural Modification System blacklist.           need to “o3llude” 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’ seem to under-
                                                  t                              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
i
        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.“3’ His group maintains a list of people
        met-s to pay fees to account for the strain they                 t
                                                              who don’ want to be spammed When individ-
        place on the network. Or, conversely, network         uals forward spam to Removeyou, the company
    1   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
    5   “Peer Presswe” 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?’ The embrace of this volun-            Regdation 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 ofways 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                             t
                                                              annoying isn’ 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
L                                                             disease: It would create immense uncertainly
            Permission e-mail has been identified             and bring to bear needless, expensive eilforce-
            as the next generation of Internet mar-           ment and litigation costs. Moreover, mos:: small
            keting. Enjoying significant dick-                businesses are not yet on the Internet. Pls 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-       bulke-mailare
            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 pharmaci‘ the es
                                                              right to share consumer information with third
                                                                                                                    spam could
            as one of the most powerful Internet
            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 ofwireless devices such as cell    commerce and
        Removeyou.com’ Thomas Brock told the Wal
                          s                                   phones and hand-held computers. Ironically’ it is     impede private
                      We
        Sbwt Jownd ‘ are not here to kill the spam            the government’ mandate that cell phones
                                                                                 s
                                                                                                                    solutions.
 Ironically, it is the   incorporate 911 location capability that has            icy on commercial e-maiL”= Such pressure will
     goverumenfs         swungthedooropentospaminthisparticular                  not go away, and todays legislative prospects are
                         arena The mandate is costly, and the best way fbr                   s
                                                                                 the camel’ nose under the tent Opt-in laws
      mandatethat        man- 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-
                         about the possibility ofbeing tracked bywireless        tutional problem and a death sentence for elec-
   incorporate 911
                         devices and getting electronic notification of dis-     tronic commerce (particularly for snxill firms).
location capability      counts atstonzstheypass on thestreet andworry               Levels of abuse vary. Some spammers send
thathasswu.ngthe         about the electronic profile that would emergxz=        only a ha&3 of mailings at a time, say a hun-
                         Nonetheless, the industr@ trade associations,           dmdorsotargetede-mails,andworkdiligentlyto
      door open to       sensitive to public reaction and its impact on          move fkxn their list those who want no f&her
       spaminthis        profirs, are’ of their own accord, devising opt-in      contact others exhibit contempt 6r those who
   pallicularar~         standards that would ensure that no customer                  t
                                                                                 don’ wanr their messages?’ Leg&Con would
                         gets pitched without having granted permis-             inappmpIia&ly lump those groups together.
                         si011.~ Thus, it is noteworthy that even when gov-          As it stands, HR 718 defies 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 6r as the most offensive material          profit Is that spam or not? Even electronic
                         goes, as these operations an easily relocate            newsletters Corn media services, which some-
                         overseas. In ficq much spam already originates          times contain advertisements and links
                         fi-om Pacific Rim nati~ns.~                             between stories, could conceivably face pmb
                                                                                 lems. It is unfair to treat ads diff&rently just
                         WhSUWillCOUlltaSSplIl?                                  because they happen to be part of a news ser-
                            Spamrning used to refer to the practice, by          vice, and someone will inevitably point that fact
                         an individuaI’ of posting the same message to           out The media business is for-profit, after alL
                         numerous newsgroups.J5 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 legi&tion. And.’ given the penalties in
                         unsoliated communications as WelL                       the proposed legislation, there are clearly
                            It is uncertain what will ultimately count as        incentives ;:o go on spam hunts, looking for
                         unsolicited commercial e-mad If a reputable             evil embedded in every e-mail.          .
                         company sends mail unasked but provides a                   In such an environment, regukuion could
                         mum addnzss and removes your name when                  lead to ben:erdisguised spam, more annoying
                         requested, that would presumably be legal               than todaJ?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 fixther      receiving dubious “public service announce-
                         debated and mod&xi Some consumer groups                 ments” that happen to include an of&r for a
                         are ding for a “federally mandated ‘    opt-in’ pol-    product somewhere down the line.



                                                                                 8
I ,        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                                s
                                                                   Rep. Goodlatte’ HR 1017 would ban the
      mote junk mail horn their representatives than           use of false e-mail retum addresses in cornmer-
      they do from sparnmers. Rep. Bob Goodlatte               cialemail,aswellasthesoftwareusedtohide
      (R-Va) mentioned “chain letters” in testimony            header information. The proposed requirement
      offered to the Senate3* Would those be subject           that valid header information be shown has sig-
      to legislation? Gartner Group Ix has referred            nitkant implitadons 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 usuaIly lost in handling unproductive e-         which individuals can maintain a clo,ak of
      maiL”3g Are forwarded jokes or hoaxes part of            anonymity. Anonymous speech is a cornerstone
                  s
      tomorrow’ spam problem, too? What about e-                                               s
                                                               of our Republic Thomas Paine’ Gmznw~~ Sf3se
      mailed press releases (“For Immediate Release”)          was signed “An Englishman” The Fidimlie
      blasted from public relations firms? The broad-          Pupen were signed “Publius.” Given that the
      ening of what is classified as span-i is not that        Internet can serve as the %nonymous pam-
      remote a possibility.                                    phlet” of today’ individuals must retain the         As strange as it
                                                               right to z&guard their anonymity even in (or         may sound, spam
      UIIbededrmbarepontheRightto                              perhaps espe4ly in) a mass-communications            and the use of
      AnonpityandFreeSpeech                                    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. Sparn is, at           guises a normal message by making it look like       pen to be means
      bottom’ merely advertising. Such business                sparn so that e-mail %niffers” might be more
      speech is simply speech that proposes a trans-           likely to ignore it4j
                                                                                                                    by which
L     action. While anti-spammers believe customers                Individuals must not lose the right to send      individuals can
      should ask before being solicited’ there is a                                                     s
                                                               anonymous bulk mail’ and hiding one’ 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 anonymiqc
      with taxpayer funds, and that e-mail addresses,          enough to forge the “fi-on?’ line of an e-mail4
      like street addresses, are a matter of public            Yet HR 1017 could make such simple but crit-
      record40To 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’ contact us. Even the opt-out
                         t                                     n&an& largely urregdu4 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 ifthey like. But implementing             that the underlying Internet debate is not really
      this with Meral legislation is overly heavy-             about privacy, even though that gets a l.ot of
      handed, arguably even a violation of free                media attention these days. The real question is
      speech, and better left to emerging conaactual           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 resaic-                Spam legislation would take away with one
      tions spread elsewhere, for ewmple, 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.“’ 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 govem-                  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
                          EmergingIntemetMarkets                                       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 communicarions 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
                                                             s
                          block them more readily. Today’ ISP-initiated            hook up to the Net. Not all ISPs are created
                          efforts to block spam are %gulated” by the               equal, and some are even “spam-friendly.” For

L                         market, which provides some restraint.
                          Monetary legal remedies, however, along with
                                                                                   example, 1.n one case, a bulk e-mailer called
                                                                                   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 aheady developing spam remedies            right to do so.& 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.4g 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-
                          out right to ISPs, allegedly similar to the one          nificant new power would disrupt permission-
      what the govern-
                          given consumers.4’                                       based e-mail alternatives, just as they are gain-
     ment proposes to        Just as ISPs might engage in good-faith block-        ing a footl;~old Legislation, as Jerry Ceresale of
    give with the other   ing, companies sometimes send e-mail by rnis-                                     t
                                                                                   DMA put it, “doesn’ 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.    mayhavebeenwronglyaccusedofbeingasouroe                  needlessly put such arrangements at risk.

L
                                                                              10
L       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               ‘%olution” could foreclose what could be a          what qualifies as
    Records? Will an ISP block mailings from the               unique opportunity.                                 “dear and
    Scotts Company reminding registered cus-
    tomers when to put down fertilizer and grass               ASpamIdentifi.catonResuiremenr                      conspicuous”
    seed? Breaking the shrinkwrap 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
           s
    ware’ usage agreement’ and installation of the             fies as “dear and conspicuous” identification of
    software can automatically send “home” over                spam in a message header, as some proposals         header....The
    the Internet the user’ consent to receive future
                           s                                   would require. Usually, spam is obvious ‘ the
                                                                                                           to      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 h&;ng of
    cial e-mail traffic grows, new reg&tions 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
    fi-om interference with private communica-                 interfere with “preview screen technoloa used
    tions. Mark Lackritz, president of the Securities          by many consumers to rapidly screen mesages
L   Industry Association, characterized H.R 718 as             and their content.“s3 Besides, such tagging
    a “trial lawyer’ relief act””
                    s                                          might require companies to obtain legal coun-
         According to the sponsors of H.R 718, a               sel on what counts as “clear and conspicuous,”
    “preexisting” 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 s                  “home gym equipment” or “flower seeds”’ an
    There? 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.                SpamLegi&ionCanHinderEme@~
        When ISPs reduce traffic unilaterally’ con-            Messag@Technohgies
    sumers may be free of spam, but they may also                                         s
                                                                   The desktop is today’ dominant rneans
    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-he&, 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
                      Strategycom, for example, is facing severe hard          acknowledging that fti
                      times after parent MicroStrat~ disclosed in                  Levels of privacy protection are competitive
                      2000 that it had overstated sales and earnings.          features, as they should be. Markets are essential
                      Strategycorn also faces a skeptical ventune capi-        to providing the mix of features people desire.
                      tal environment” But the company had been                The proper role for government is to enForce
                      one of the most prominent outfits with a busi-           privacy co~xracts when they are violated by the
                      ness plan centered on offering targeted services         compania; 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, whah       (the compact nature of IM may not lend itself            people want it protected. Ultimately, the
   being proposed     to optout messages or identifiers), advertising          question is, who provides the best discipline,
         withspam     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-
      legishtioIlis   ing tools offered by J2 Global Communi-                  cy bill, in the sense that it seeks to impose the
        the fhrther   cations (formerly Fax4Free.com) or eFax                  rudiments of ill-considered privacy legislation
                          At bottom, what’ being proposed with
                                             s                                 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 al& no one explicitly asks for those         tion principles of spam legislation to the
                      ads. Interestingly, spam legislation limiting e-         Internet at large ‘  My new legislation simply
that lends itseifto                                                            applies the reasonable consumer protection
                      mail marketing could unintentionally promote
        marketing.    pop-up marketing in the short term, leading to                                     opt
                                                                               principles embodied in ‘ out’language from
                      yet another backlash.                                    spam legi&ion to Web sites and pop-up ads.”

                      SpamLf+alionI.saPathwayforIU-                            unreasonablestatutoryPenaltiescreate
                      ConsideredPrivacy~on                                     h4kchief
                          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-                                          s
                                                                               wrongly is obvious. Surely, it’ not that much
                      eral negative effects.                                   of a burde:n 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
L    significant potential for mischief If people are            The government can’ stop spam. In the
                                                                                         t                          The government
    going to get $500 for every unwanted e-mail,             final analysis, the market will have to do the            t
                                                                                                                    can’ 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 tetnptarion to pass clumsy and
    essence of the Internet revolution. If that              intrusive laws in response to constituent9 every
    premise were to be reversed and penalties                F m / - w n ~
    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 EIisabeth Goodridge, bleak Future
          t
    didn’ remember consenting and could sue.                 Predicted for San Francisco Internet Firms,,,
    Often, consumers sign up with merchants                  InfMon W~kmm, March 29, 2001, :http://
    who indicate they may pass on the informa-               www.informationweek.com/story/IWK200 10329s
                                                             0002.
                                          t
    tion, although the consumer doesn’ explicitly
    give permission.                                         2. The tam Ti-iendly fm,, 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,” Wahhgton 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’           Co&ion against Unsolicimd Commercial B-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 Wrll It Work? Ch!FTNews.wm, December
                                                             1, 1999, http://news.cnet.com/news/ O-1005-200-
                                                             1476013btmL
                  Conclusion                                 4. Cited in Maureen Sirhal, “Experts Struggle to
                                                             Gauge Impact of ‘Spam,“’ Nation& Jo~urn&
        The Federal Trade Commission already has             T&logy Daly, May 7, 2001, p. 4, http://nation
    power to “prosecute fraudulent or misleading             aljoumaLcom/about/technolo&aiIy/.
    commercial e-mailsaSS States, likewise, have             5. Quoted in ibid
    powers to prosecute fraud Some e-mail pitch-
    es are clearly fraudulent, and some spam                 6. Jason Cadett, president and CEO, Junkbusters
    accounts are even set up with f&e or stolen              Corp., Testimony and Statement for the Record on
    credit cards.s 6 Those should be targeted                Unsolicited Commercial E-mail before the
                                                             Communications Subcommittee of the !&ate
                  s
    Otherwise, it’ better to let existing and emerg-         Committee on Commerce+ Science, and Traospor-
    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 BiIl Lacks Teeth,,, Gqutod
    Internet communications methods, and free            April 17, 2001, http://www.computetworldcom/
    speech. ISPs should, and do, have a right to         cwi/story/0,1199,NAV47_ST059815,00.htmI.
    block unsolicited commercial e-mail. Such pri-
    vate efforts by ISPs to block spam do not con-           8. Quoted in MichaeI Schroeder and Glenn R
    stitute state action-the networks are private            Simpson, “Lobbying Effort Fails to Bkick ‘Spun E-
                                                             mad Bill,,, W~StnaJownd, March 29,2001, p. A4.
    property, after all But federally promoted
    incentives to block spam with impunity, and              9. C&nets 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/2OOO/isOOD4sp~
    unnecessary chaos.                                       prhtm.

i

                                                        13
10. Noted in Sirhal, “Expern Struggle,,, p. 4.          27. McCullagh, “Consuming Spam MaiL”

 11. Maureen Sirhal, %wmakers Question Need for         28. Michelle Finley, “Other Ways to Fry Spam,”
Regulation of Sparn:’ NatMIcllJoum& Tedmology           Wii New;, April 24’   2000, http://www.wired.com/
Daily, May 10, 2001, http://nationaIjournaLcom          news/print/0,1294,35776,00.htmL
/pubs/techdaiIy/pmedition /tpO lOSlO.htm.
                                                        29. See, for example, Walker, p. E8, and Goldstein.
12. Adriel Bettelheim, ‘House Judiciary Committee
Narrows Scope of Bill Aimed at Regulating ‘Spar-n,‘”    30. YesMaiLcom, “About Permission e-maiI,,, htqx/f
CQ WeekEy, May 26’2001, p. 1262.                        www.yesmail.com/Ieam/.
 13. See htqx//www.antionIine.com/features/jargon       31. Quoted in I-Ian&on.
/spamblock.html.
                                                        32. For an overview of this issue, see Heather
                                 To
14. Noted in J. D. Biersdorfer, ‘ protest Unwanted
                                                        Fleming Phillips, ‘Wireless Industry Treads
E-Mail, Spam Cop Goes to the Source,,, New Yank
                                                        Cadidly on Privacy,,, February 7, 2001, http://
7ii, June 24,1999, http:// www. qtimes.com/libr
                                                        wwwsiliconvaIley.com.
aty/tech/99/06/drcuits/arddes/24spam.hrm

15. The DMA% list is available at htqx//wwwe-mps.       33. See, for example, Simon Romero, ‘ Zocating
                                                        Devices Gain in Popularity but Raise Privacy
erg/en/                                                 Concerns,,, New Yak limes, March 4,2001, http://
16. See, for example, David P. Hamilton, ‘You’ Got
                                              ve        www.nytir.nes.com/2001/03/04/technoiogy/04L
Mail (you Don’ Want),,, WdStrretJoumd, April 23,
                t                                       0CAhtmL
2001, p. R21.
                                                        34. Noted in McCuIlagh, “Consuming Spam MaiL”
17. Information is available at http://www.e-maiI-
connection.com/EMKFINAL.htrnL                           35. Noted in James W. Butler III and Andrew Flake,
                                                        “The Effective Control of Unsolicited Commercial
18. See htcp://~.uwasafi/-ts/info/spamfoil.             E-mail,,, Internet Policy White Paper, U.S. Internet
hanI.                                                   Industry Association, September 1988, p. 1, http:
                                                        //usiiapoIiq,.net/pubs/.
19. For an q&nation of the process, see http://
www.m&ircuitcom/handshake.htm.                          36. Maureen Sirhal, “Anti-Spam BiIIs Debated at
                                                                                               s
                                                        Hearing, in Letters,,, NaabnalJoumal’ TM
20. See, for example, De&n McCullagh,                   D&y, April 26,2001, http://nationaljoumaLcom
“Consuming Spam Mail,,, Ccmtibutm-s’ Forum,             /pubs/techdaiIy/pmedition/tpO10426btm.
Library of Economics and Liberty, February 12,
2001, http://wwwweconlib.org/Iibnq,/cokunns/Mc          37. Geoff Duncan, “Those BuIk E-Mail Blues,,,
CulIagh spam. html.                                     TdIi,X, Sfeptember 30, 1996, http://db.tidbits.
                                                        com/getbiu;.acgi?tbart=OO863.
21. Paul Hoffman and Dave Cracker, “UNoIicited
Bulk E-Mail: Mechanisms for ControI,S I-Mail            38. Bob GoodIatte, Testimony on Spanuning before
Gmsortium Report UBE-SOL, May 4, 1998, htrp://          the Communications Subcommittee of the Senate
www.imc.org/ube-soLhtmL                                 Committee on Commerce, Science, and Transpor-
                                                        tation, April 26, 2001, http:// www.senate.gov/
22. Hamilton.                                           -commerce/hearings /0426bucPDF.
23. See http://www.maiI-abuxorg.                                         t
                                                        39. “Please, Don’ Share,,, Sidebar in Diiabatino,
                                                        http://www.computerworldcom/cwi/story/O,ll99,
24. Quoted in Michael Foreman, ‘  Xtra May Use
                                                        NAV47~STGS981SJ00.htmI.
Court to Get Off Blacklist,” New Z.&u& Hen&f
online, May 1,200 1, http://wwwnzheraIdco.nz/
.storyprintcfm?storyID=184372.                          40. Duncan http://db.tidbits.com/getbits.acgi?tbart
                                                        -00863.
25. ChooseYourMaiI, http://www.maiIcitcuitcom/
                                                        41. See Jonathan D. WalIace, “Nameless in Cyber-
P - h =                                                 space Anonym@ on the Internet,” Cat0 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,” Digi&?&            //www.cato.org/pubs/briefs/bpS4.pdf.
net, November 24, 2000, http://wwwdigitrends
.net/marketing/13640,12335.htmL                         42. Ibid



                                                       14
    43. The Spam Mimic Web site is http://www.spam          news/O-lOOS-200-566864ShtmL
    mimic.com.
                                                            49. Nice Detoum, ‘The High-Speed Dechne of the
    44. See, for example, De&n McCullagh, “Use a            ISP,” Motley Fool, December 13, 2000, http://
    Spam, Go to Prison,” wired News, March 24,2001,         www.fool.com/Server/FoolPrintasp!FileP./
    http://www.wiredcom/news/print/0,1294,42599,            000/twxO01213.htm.
    OO.html.
                                                            SO. Quoted in De&n McCullagh and Ryan Sager,
    45. Noted in Adam S. Marlin, “‘     Anti-Spam BiIi      ‘Tooking up a Revised Spam BiII,,, Wmd News,
    Approved by Panel over Industry Objections,,, CQ        March 27, 200 1, http://www.wiredcom/news/
    Dairy 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.
                                      s
    February 17, 2001. Copy in author’ files. The
    USIIA can be contacted at http://www.usiiaorg/          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 ElBo,ghdady,
    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 S,2001, p. El.
    /-commerce/hearings/O426bucPDF.
                                                            55. Noted in SirhaI, “‘AntiSpam BiIIs Debated”
    48. Stefanie Olsen, “Giving Spam the Network
    Boot,,, April 19, 2001, http://news.cnet.com/           56. Hamilton.




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