Federal Spam Law Works Perfectly

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How is the CAN-SPAM Act working? In my humble opinion, it is working perfectly. I receive more spam than before. Spam accounting can be complex (e.g., do viruses count?), and if I went through the details, you would be bored. On average, I get 125 to 200 spams daily. That's probably an increase of 25 percent or so over what I received just before CAN-SPAM took effect Jan. 1.

My experience is common. Recent press reports show that spam has not decreased and that spam costs keep rising. A survey of workers at Fortune 500 companies concluded that spam cost $2,000 per worker yearly.

So how can I say that the spam law is working perfectly? It's because the law's principal purpose had nothing to do with stopping spam. Congress virtually admitted that the law wouldn't help. The findings state expressly that legislation alone won't solve the problem. I never heard of anyone who thought the law would stop spam.

I see two main purposes for the law. The first was simply to enact an anti-spam law. Everyone hates spam so it's an obvious target. But it isn't an easy target because useful legislation is hard to write. Congress wrestled with spam legislation for years and couldn't find anything that made much sense.

Sometimes when members of Congress get sick of an issue, they pass a bill just to get it off the agenda. That's what happened here.

The second purpose was to pre-empt state spam laws. Several states had laws that let spam recipients sue the senders. Utah enacted one of the first of these laws, and lawyers there aggressively filed lawsuits.

For the most part, CAN-SPAM pre-empts state law regulating the use of electronic mail to send commercial messages. The act pre-empted every state law that it set out to pre-empt. That's 100 percent effectiveness.

The act did not pre-empt state laws on fraud and criminal matters. Those laws let state officials proceed against criminal wrongdoers. They don't usually help ordinary citizens pursue private legal remedies. Federal and state officials are unlikely to prosecute legitimate advertisers who use spam.

What's going on here? Criminal penalties have yet to prove effective against spam, so preserving them or adding new penalties isn't much help. Civil lawsuits are unproven, but why wipe out a tool that could help? Why not send trial lawyers after spammers, a universally hated group?

My answer is that the real problem with civil lawsuits is not that they might be used against spammers promoting drugs, porn, body enlargers and the like. No one has been particularly successful in finding those spammers. Civil lawsuits against them would be expensive, and it's unclear that the spammers have any assets. It isn't hard to set up a business to be judgment-proof.

Who would be the real targets of civil lawsuits? Legitimate businesses with real assets. CAN-SPAM was a major step to open spam to legitimate companies without fear of private lawsuits.

Everybody recognizes the problems of regulating e-mail via state legislation. The jurisdictional issues are overwhelming. Nevertheless, if a Fortune 500 company sent spam to 100,000 Americans, the sender would be easy to find. If we allowed private remedies under state laws, that company might face dozens of lawsuits. No one with any sense would use e-mail if lawsuits were a possibility. Lawsuits are a real deterrent to spam from legitimate companies, so Congress cleared the decks for them.

The Federal Trade Commission also is working to make spam safe for legitimate companies. Congress asked the FTC to study a do-not-spam registry. The FTC report came out in June. To no one's surprise, the commission rejected all possible registry-based solutions. A plain vanilla registry (like a do-not-call list) clearly wouldn't work, and the FTC made that case well.

However, the commission rejected other solutions, including those based on domain registries or using encryption, without offering a convincing argument. For example, if there were a registry of domains, every consumer domain would sign up or lose business from spam-haters. That would mean legitimate companies could never send spam.

That's the real game. Congress and the FTC want to let legitimate companies use spam, and they don't want anything getting in the way. So all the remedies that might work against them, technical or legal, must be rejected.

Need more confirmation of my thesis that the goal is to open spam to advertisers? The Direct Marketing Association is spending $500,000 to help fight spam. The DMA obviously wants to open a new and inexpensive medium for its members. If I were the U.S. Postal Service, I would be secretly funding spammers to clog up a competitive advertising pipeline.

If the efforts begun against illegitimate spammers eventually bear fruit, spam might become realistically useful to others. I have my doubts, but some reduction in spamming is possible eventually.

Want to know why I don't care about legitimate spam?

It's for the same reason I don't really worry about spam anymore. My ISP filters out more than 99.5 percent of it. About three spams a week make it through to my mailbox. If you want to be a legitimate advertiser via spam, those odds don't look very good. n


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