Why anti-spam laws won't work Marketing Intelligence / Joanna L. Krotz Everyone recognizes the problem. We're drowning in spam. --------------------------------------------------------------------- Estimates vary, but Ferris Research put the cost of spam (also called unsolicited commercial e-mail or unsolicited bulk e-mail) to U.S. organizations at a staggering $10 billion in 2003. Nearly one-third (30%) of inbound e-mail to U.S.-based Internet service providers (ISPs) and 15% to 20% of all inbound e-mail to U.S.-based businesses is now spam, according to the San Francisco market researcher. Billions of unwanted messages are eating into our computing and network resources, worker productivity, IT security, customer services, administrator and personnel time, the Web's well-being and, of course, everyone's civility. Every day, someone comes up with another bright idea or sophisticated application guaranteed to dam the flood. And 24 hours later, spammers have found chinks in the walls. Few would argue it's not a crisis. The real conflict starts with proposed solutions. The public enthusiastically responded to a federal Do Not Call registry aimed at muzzling telemarketers. Two-thirds of Americans, weighted toward higher-income families, were ready to sign up immediately, according to a survey from the Center for Media Research. That inspired fresh rounds of hand wringing and brainstorming about spam. Politicians remain primed. "This spam stuff oughta be against the law," cries the growing chorus of federal officials, mimicking irate business owners, vociferous consumer advocates, privacy watchdogs, media pundits, ISP execs (whose profits are going up in spam-fighting smoke), lobbyist hordes and anyone who has an e-mail account. Yet surprise, surprise. Many states already have anti-spam legislation on the books. Some even levy criminal penalties in addition to civil fines on violators. Let's see . . . have you lately noticed a drop in messages that promise to grow some essential body part? The national movement to legally ban unsolicited commercial e-mail, which has gained momentum daily, is really a bad joke. It's a stupid waste of money, time and effort. Go ahead. Get mad at me. It won't change the facts. No law against spam will make it to disappear or (yes, I can hear you!) even significantly diminish the tide. Let me count the whys. One e-mailer's spam is another one's steak. So far, no one has a definition of spam that will stick to the paper a law is written on. If you ban all unsolicited e-mail outright, you likely violate the First Amendment to the Constitution. So most anti-spam legal eagles suggest bulk e-mailers identify their messages with "ADV" (for advertising) in the subject line. E-mail marketers would also include their name and street address in a prominent position in the message and offer recipients a way to "opt out" of getting more such notices. Only if and when a consumer opts out does the message become illegal. So spam only exists in the eyes of a beholder. What's more, say you sign up for a contest or a loyalty program at a local retailer or an online registration. You fill out a form that asks for your e-mail address. On that form, somewhere in small print, the marketer announces that your e-mail address might be shared with other companies. Whoops. You just "opted in" to untold legions of marketers. Spammers are beyond the law. About 90% of spam comes from only 200 groups of spammers, according to Steve Linford, director of the Spamhaus, a British consumer group that blocks junk e-mail and traces its sources. Until recently, most spammers were based in the United States, with sizable numbers in China and a few other places. Lately, though, American spammers are packing up their lists and basing business in Beijing, Seoul, Eastern Europe and Argentina. "They are on the run from the U.S. Federal Trade Commission," Linford says in an online interview. Offshore spammers simply ignore American legislation. Barriers to e-mail marketing are so low that spammers won't be deterred. "Unlike telephone solicitation, where running an offshore telemarketing scheme directed at U.S. residents is cost-prohibitive, there is no cost barrier to setting up a spam operation," says Dan Venglarik, a Dallas-based lawyer. In other words, it's the cost factor — not the law — that protects us from telemarketers. Who you gonna call? Spambusters? If you make the case that we should outlaw spam because it's morally right and because, as a society, we must screen the innocent and the naïve from the deluge of sleaze and scams, then the issue turns to enforcement. "Spammers are becoming incredibly adept at covering their tracks with available technologies," says Thomas Kulik, a lawyer with Patton Boggs in Dallas. Criminal sanctions and civil penalties may discourage some operators, but state and federal budgets are strained already. More than likely, only the biggest or worst violators would feel the weight of the law while hundreds of home hackers and back-office scammers would be left alone. Then you have to prosecute the offenders. In Utah, where the Unsolicited E-mail Act went into effect months ago, the courts are already inundated with thousands of complaints. Violators face fines of $10 per unwanted e-mail and up to a maximum of $25,000 per day. "A plaintiff's counsel responsible for many of the filings claims to have received approximately 30,000 e-mails from people who wish to sue potential spammers under the act," Kulik says. The bottom line here: A law designed to reduce the cost of spam to business is instead straining the taxpayers. Be careful what you wish for. Laws (and software, for that matter) that attempt to block unsolicited e-mail often toss out the good with the bad. "The laws concerning spam and the current spam filters being used are hurting every online retailer," says Bill Broadbent, chief executive of T-ShirtKing.com. "Our customers' orders are being rejected by spam filters." Small businesses, which operate with scant resources, are often the worst victims of sweeping spam restrictions. eBay, for example, reports that many of its buyers and sellers don't get a deal done because of rejected e-mail messages. Spammers would love a Do Not Mail list. Have you ever tried to "unsubscribe" to a spam-mail message? So you know: Almost invariably, unsubscribe links are a ruse so that spammers can discover whether or not the e-mail landed. If you click "unsubscribe," the spammer knows he's got a live one. Most anti-spam laws call for a Do Not Mail list patterned after the telemarketer registry. Consumers and businesses would sign up to create an "opted-out" clearinghouse. Of course, say proponents, the list would be maintained behind serious firewalls and would be encrypted and electronic communications would be safeguarded from piracy and so on. Can you imagine the glee with which spammers would greet this list? Encryption would stymie sophisticated hackers or spammers for maybe a minute. Plus, let's say a Buenos Aires-based spammer requests the list in order to ensure that no mail goes to the wrong address. Yeah, right. "A do-not-spam list is guaranteed to bring the worst of the worst spam to anyone naïve enough to put his e-mail address on it," says Miki Dzugan, an online marketing consultant based in Minneapolis. Anti-spam laws won't work. The way to effectively stop spamming is to persuade ISPs and other interested parties to coordinate with global partners, such as the European Union, to develop new and better technology protections. You can't legislate spammers out of business. You have to beat them at their own game. For additional articles, visit the Web site http://www.muse2muse.com/m2m.html. Joanna's company is Muse2Muse Productions.