Spam after CAN-SPAM: How Inconsistent Thinking Has Made a Hash out of Unsolicited Commercial E-Mail Policy

Article excerpt

INTRODUCTION

The authors of the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (hereinafter, "CAN-SPAM" or the "Act"), (1) the first United States federal law placing restrictions on the use of unsolicited commercial e-mail ("UCE"), or "spam," were asking for trouble. First, the title of the Act rings of Orwellian doublespeak. Second, its content has drawn ire from all sides except, for the most part, the direct marketers who are the ones being regulated--and that is not a good sign.

Despite the considerable fanfare that accompanied the Act's passage, including high profile lawsuits by Internet Service Providers ("ISPs") against unnamed John Doe spammers, (2) the reactions of both anti-spam activists, and of spammers, to the new law suggest that the Act has not had--and will not have--much effect in stemming the rising tide of spam that is clogging e-mailboxes the world over.

Some of the apparent weaknesses of CAN-SPAM as an effective tool to thwart spam arise from dubious drafting decisions, while others reflect the endemic shortcomings of any attempts to control spam by national legislation, given the inherent fluidity and anonymity of e-mail distribution through the Internet. In addition, long delay in enacting legislation--even flawed legislation--may well be responsible in part for the enormous explosion of spam that has made its control all the more difficult.

Spam is a serious problem on many fronts, but a more sophisticated analysis of spam and its related phenomena, than that performed by the authors of the Act, is necessary. Solving the spam problem requires undertaking philosophical, historical, technological, and economic analyses of the market forces that are at play. Only after considering the dynamic interplay of these factors will it likely prove possible to arrive at an effective solution to the spam problem.

I. THE ACT

Although Congress had been considering different anti-spam measures for many years, (3) it was slow to pass a legislative response to spam. (4) But in the face of an overwhelming public perception that spam was proliferating at an unacceptable rate, (5) recognizing that spam was imposing massive cumulative costs on American business and consumers, (6) and noting the inconsistent, and often stringent, state laws regulating spam, Congress finally acted in late 2003 to create a national standard for the acceptable use of e-mail solicitations. (7)

The Act recited a compelling list of Congressional Findings. Among these were:

(1) The rapid growth in the volume of UCE threatened the convenience and efficiency of e-mail; (8)

(2) UCEs accounted for more than half of all e-mail traffic; (9)

(3) Most UCEs were fraudulent or deceptive; (10)

(4) UCE resulted in costs to recipients of UCE, including the costs of storage and costs associated with the time spent accessing, reviewing, and discarding the mail; (11)

(5) UCE was costly to ISPs, businesses, and educational institutions because of the need to increase storage or bandwidth or both; (12)

(6) The receipt of a large volume of UCE increased the chances that wanted e-mail would be discarded or ignored. (13)

(7) Many states had enacted mutually-inconsistent versions of anti-spam legislation that had not alleviated the spam problem and were difficult to enforce. (14)

CAN-SPAM attempted to address these identified problems in two ways: (1) by requiring that all commercial e-mail promulgators operate on an "opt out" basis, i.e., they must provide recipients of a commercial message with a reliable means to elect not to receive any future mailings from the particular sender; and (2) by restricting certain common and deceptive practices employed by spammers, so as to provide greater transparency and accountability for senders of commercial e-mail.

The "opt out" provisions of CAN-SPAM are provided in Section 5(a) of the Act. …