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Spam, Spam, Spam, and Spam

Spam Is No Justification for New Regulations

MARCH 01, 2000 by GARY MCGATH

Gary McGath, a software engineer and freelance writer, is a former editor of the Thomas Paine Review.

Electronic mail on the Internet has revolutionized communications. It allows people to communicate with others far away without playing “telephone tag” or running up expensive long-distance bills. It lets people distribute messages to large mailing lists with a tiny fraction of the cost and time it would take to send paper mail.

But every advance has its dark side as well. The same technology that permits people to get the mail they want also permits others to send them mail they don’t want. Such mail is known as “unsolicited commercial e-mail” (UCE), “unsolicited bulk e-mail” (UBE), or, most commonly, “spam.” This term can be traced back to a Monty Python comedy sketch about a restaurant that serves Spam, Spam, Spam, Spam, and Spam, the idea being that it’s always more of the same. (“SPAM,” with all capitals, is a trademark of Hormel, but it hasn’t contested the new use of the lower-case term.)

UBE is economically different from other types of unsolicited promotions because its incremental cost is much lower. Mailing a flyer costs money for paper, printing, and postage. Telephone marketing, even with an unlimited service line, requires the time of an operator and the use of the phone line for however long it takes to make the call. But with bulk e-mail, the incremental cost of sending out another copy is only a few bytes of data storage for the recipient’s address—that is, next to nothing. The cost falls on the recipients and their service providers, as their computers receive thousands of copies of the original message.

Gathering of Addresses

Mailers gather publicly posted addresses, typically on newsgroups and World Wide Web pages. Because of the low incremental cost, there is little incentive to cull lists by degree of interest or even to remove undeliverable addresses. Marketers of mailing lists offer these addresses at low prices; one offer sent to me (by UBE, of course) touted a million addresses for $700.

At these prices, and at a small monthly cost for an Internet account, advertisers need only a tiny rate of return to pay back their investment. Lots of businesses would, all else being equal, be eager to get into the act. The number of advertising messages that users receive would quickly become a serious burden (and already has for some people). The mail storage capacity allocated to an account might be exceeded, causing the deletion of important mail; the time needed to download the messages and then to separate out the junk mail can also become a major inconvenience. In addition to costs to the end user, the costs of transmitting and storing all these additional messages places a burden on Internet service providers (ISPs), driving up the costs of accounts and increasing the delivery time of the average message. The mailers’ slogan, “Just hit delete,” isn’t a satisfactory solution to the problem.

The burden doesn’t fall equally on all recipients. People who keep their addresses secret from all but a select group of associates can avoid nearly all UBE. Those who post their address in public discussion groups or on their Web pages will quickly find themselves getting mailings on everything from miracle fat-reducing pills to schemes for making $50,000 a month. Thus people are often intimidated into not publicly disclosing their e-mail address, or they take out a second, unpublished address. Some people change their addresses simply because their old ones are on so many junk-mail lists.

Estimates of the costs imposed by UBE vary widely. In a widely publicized study released last June, Bright Light Technologies claimed that the annual cost to a large ISP through lost customers could be in the millions of dollars; others dispute that figure. Nearly everyone in the industry, though, agrees that the cost is significant.

Government to the Rescue?

Where does this leave us? Does the government have to step in and limit what can be mailed? Some would say yes. A widely supported organization called CAUCE (Coalition Against Unsolicited Commercial Email; www.cauce.org) describes itself as “an ad hoc, all volunteer organization, created by Netizens to advocate for a legislative solution to the problem of UCE (a/k/a/ ‘spare’).” In 1997 CAUCE tried to amend the federal statute outlawing junk faxes to also prohibit junk e-mail.

H.R. 3113, the Unsolicited Electronic Mail Act of 1999, which CAUCE supports with some reservations, would require the Federal Communication Commission to maintain or contract out a list of the names and e-mail addresses of all people who wish not to receive “unsolicited commercial electronic mail, unsolicited pandering electronic mail, or both.” Sending such mail to people on the list would be prohibited.

This type of legislation has several problems. It establishes categories of mail by content, giving different rights to senders of mail depending on whether it is deemed “commercial,” “pandering,” or neither. This raises First Amendment issues. Bulk-mailed religious tracts and political manifestos would be unaffected by such a law, even though they impose the same burdens as other UBE. Also, since nearly everyone would want to escape from such mailings, the bill would create a massive, publicly available database of people’s names and e-mail addresses. Non-U.S. bulk mailers beyond the reach of our laws might even use it as a mailing list.

But legislation is hardly the only solution to the UBE problem. Where there is a strong market demand—in this case, a demand not to receive something—businesses work to fill it. UBE has proven to be an ineffective advertising medium for legitimate businesses. The antagonism it arouses strongly outweighs any positive response. As a consequence, the amount of cold UBE that legitimate businesses send is negligible. (There is controversy over gray areas in which an advertiser and recipient have had prior contact, but that is another matter.) The market has averted the doomsday scenario in which every business in the world sends e-mail to every account in the world. Legislation could actually defeat the market’s effect by giving the appearance of acceptability to bulk mailers who follow government- approved procedures.

Today nearly all service providers have policies prohibiting the transmission of unsolicited bulk mail. Those that don’t or that are lax in enforcing their policies find that other sites will not accept mail from them. Junk e-mail today comes primarily from fly-by-night operations, promoters of dubious schemes, and outright frauds who open accounts just long enough to pour messages into a hundred thousand mailboxes.

Technology is part of the market solution. Normal mail on the Internet is conveyed by a protocol called SMTP (Simple Mail Transfer Protocol). SMTP was created in the days when the Internet was a government-subsidized project used mostly by educational institutions; it contains no protection against forgery. Bulk mailers have taken advantage of that to falsify the origin of their mail; if recipients can’t tell where the mail came from, they can’t inform the sender’s service provider of the abuse.

To solve this problem, creators of mail-server software have improved their products to make it more difficult to send forged mail and easier for knowledgeable readers to determine its actual point of origin. Others have provided downloadable software and Web sites that permit even unskilled users to determine the likeliest origin of the mail and send in a report. Because many Internet users don’t “just hit delete,” but take the time to send in reports of UBE, the account of the typical “spammer” has a short life. Many service providers offer filtering services that eliminate a significant portion of UBE before the recipient sees it; having such a policy provides a marketing advantage.

In addition, existing legal protections can be applied against fraudulent UBE. Because the Internet is new, legal precedents are often lacking. But this is changing. America Online has won a number of lawsuits against bulk mailers who sent mail with forged AOL return addresses; others have had similar successes. If there is a need for new legislation, it is only in clarifying how existing concepts of fraud and theft of resources apply to new technologies.

The Internet has been successful largely because it is relatively unregulated. Spam is no justification for new regulations. Technology can stop the flow of abusive mail from wherever it might come.

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March 2000

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