Opinion Piece

If you have an in box, you're probably being bombarded with unwelcome solicitations for get-rich-quick schemes, methods to improve your love life, and ways to cure baldness, whether you've got hair or not. These frequent and frequently fraudulent e-mails--spam--are the bane of the Netizen's existence. Battling the perception that Washington is out of touch on tech issues, some members of Congress have heard the frustrations of their constituents and are determined to act.

One of the first bills introduced in Congress this year is an anti-spam measure that, according to its sponsor, will free Netizens from having to spend time and money identifying and deleting unwanted messages. Texas Democrat Gene Green's bill would require spammers to identify their mailings as such, to refrain from using misleading subject lines to trick recipients, and to abide by consumer requests to be taken off their lists. A separate bill by New Jersey Democrat Rush Holt would ban spam from finding us on our Internet-ready wireless phones. But it's far from certain that these measures will pass. A bill similar to Green's proposal passed in the House but died in the Senate last session, and these bills may do the same.

And that would be a good thing. No one, except the spammers themselves, denies that spam is a serious problem. America Online has testified that 30 percent of its e-mail traffic is spam, and has dedicated a half-dozen employees to fighting it. Along with personnel costs, the spam ties up massive amounts of server memory and precious processor time. No matter how an ISP deals with the problem, it's bound to result in higher monthly rates for its subscribers. Sometimes, significant spam volume can actually shut an Internet service down, as Verizon Communications learned in December when tens of millions of spam e-mails crashed its mail servers, slowing or stopping the delivery of valid e-mail to hundreds of thousands of subscribers. Yet even if the legislation did what it was supposed to do and eliminated these problems, it would still be bad law.

In deciding the 1997 case Reno v. ACLU, the Supreme Court issued one of the most important rulings in the short history of cyberlaw. It ruled that content on the Internet, like content in print media, should enjoy the broadest First Amendment protection. A potent argument against anti-spam legislation can be made on the grounds that such legislation violates this First Amendment protection, since it either bans commercial speech altogether, or is content-specific, because it bans only solicitations. The argument raised by the ACLU and other members of the First Amendment lobby is that spam, like junk mail in our offline mailboxes, is a nuisance that still must be protected.

It's true that one could craft a piece of anti-spam legislation that ducks these First Amendment worries. By shifting the focus away from banning spam altogether to making the spammers (as opposed to ISPs or users) responsible for its costs, legislation could make spam too costly to work. Anti-spam advocates like Ray Everett-Church, head of the Coalition Against Unsolicited Commercial E-mail, argue that the Telephone Consumer Protection Act, which regulates telemarketing and prohibits delivery of unsolicited faxes, provides a model for how to do this. The junk-fax law "is about making the advertisers bear their own costs," he says.

As the election has just reminded us, however, the Supreme Court has the final say in this country, and until advocates like Everett-Church can get a case up to that court to modify Reno v. ACLU, the law is quite clear. And while it's a great idea to have advertisers bear their own costs, legislation introduced to date attempts to do that by allowing you and me or the ISP to sue the spammer, which merely shifts the enforcement burden to the citizenry. The goal is to reduce the costs to e-mail users on the Internet with this legislation--but instead, the result may be a tidal wave of lawsuits that will exact a real cost from our court system. Even finding an attorney who shared a hatred for spam and took the case pro bono would hardly solve the problem: there would be far greater cost in lost time than was ever lost simply deailng with the junk e-mail. Worse yet, spam knows no boundaries: costs of litigation go up substantially when the offenders are outside the United States.

It's no surprise that many in the Net community see anti-spam legislation as a doomed endeavor, something likely to do far more harm than good, and something probably not even necessary, thanks to increasingly sophisticated filtering technologies that let users control what reaches their mailboxes. In light of this advancing filtering technology, Aaron Lukas, an analyst at the Cato Institute, calls a spam ban "superfluous at best."

Of course, even the best filters leave something to be desired. Spammers have been fairly proficient at figuring out ways to evade technology traps, and filters can block mail you'd like to receive as well as mail you wouldn't. In the case of Microsoft's free Hotmail service, it was recently revealed that the filters Microsoft has applied to prevent spammers from using Hotmail can actually prevent innocent users from sending some of their e-mail, without those users ever knowing the messages failed to go out.

Filters are a partial solution to the spam problem. But they're not a complete solution. And though the legislative attempts to crack down on spam are misguided, it would be just as misguided to dismiss the government's role in controlling spam.

Not surprisingly, many of the scams that use spam are the similar to scams that telemarketers and junk mail operators have been using for years--pyramid schemes, false sweepstakes, etc. Along with the Securities and Exchange Commission and the various state attorneys general, the Federal Trade Commission recently concluded its fourth year of Project Mailbox, an effort to crack down on criminal solicitations that increasingly use e-mail or a Web site. Earlier this month, the FTC announced that the crackdown had led to more than 300 convictions and plea bargains in 2000. While 300 may not seem like much given the massive volume of spam on the Internet, the participants in Project Mailbox insist that at least they're putting out of business the most predatory criminals among spammers. That may not be much solace to one of those half-dozen employees at AOL scrambling to block spam, but it's good news for anyone who has ever been duped in a scam.

To be sure, Congress may yet craft a bill that protects the First Amendment rights of spammers, tackles the issue of international operators, and avoids a backlog of court cases, while still finding a way to allow users to control their inbox. But in the meantime, the federal crackdown on fraudulent spam is a good step in the right direction. Officials at the FTC have testified before Congress that there's more they could do, if they had the staff and money to do it. President Bush has not yet released his fiscal year 2002 budget so it's not clear whether the FTC will get its wish, but White House aides have made it clear that few agencies outside the Defense Department are likely to get budget increases. That's music, no doubt, to spammers' ears.