Just Say Yes: Drug Trafficking Treaties as a Model for an Anti-Spam Convention
Boone-Lutz, Samuel, The George Washington International Law Review
On July 24, 2005, Vardan Kushnir, notorious for sending spam1 to most of Russia's 17.6 million Internet users, was bludgeoned to death in his Moscow home.2 The reaction of the Russian media to Kushnir's murder was nothing short of jubilation,3 and while Kushnir's murder was ultimately attributed to a simple robbery,4 this visceral response illustrates the feeling many people have for spammers.5 In addition to being a nuisance, spam has a serious economic impact on consumers and corporations.6 Both consumers and Internet Service Providers (ISPs) must shoulder the burden of spam prevention, either through direct monetary costs or the more indirect impact on their productivity.7 Spam is also a common vehicle for fraud and other crimes.8 Most alarmingly, the proliferation of spam may cause some to abandon the use of email altogether.9
In response to the threat posed by spam, several countries have adopted legislation aimed at curbing its use. These laws vary greatly in their stringency and success rate, but all have ultimately failed to put a stop to spam. This failure is due largely to the global nature of the Internet and the ease with which spam can be sent from virtually anywhere on earth. Nations with spam problems have begun to recognize the international nature of spam and, as a result, have developed a patchwork quilt of bilateral and multilateral agreements. These ad hoc agreements are steps in the right direction but, because spam is a truly global problem, a comprehensive, global, solution is needed. Since the problem of international drug trafficking is analogous to that of spam on many levels, the international community should adopt a convention on spam modeled on earlier drug trafficking agreements.
This Note discusses the problem of spam and proposes the use of existing drug trafficking agreements as a model for an international convention on spam. Part I of this Note discusses the nature of spam, including its negative impact on society. Part II explains domestic approaches to spam regulation in the United States and Australia-countries whose contrasting approaches to spam are emblematic of the various forms of domestic legislation. Part III examines the recent proliferation of bilateral and multilateral antispam agreements. Part IV discusses the failure of existing solutions and the need for a more comprehensive international solution. Finally, Part V examines the international approach to drug trafficking, explaining why these existing treaties are an ideal model for an anti-spam convention.
II. SPAM AND ITS NEGATIVE IMPACT
A. What Is Spam?
While opinions differ on how to define spam,10 in its broadest terms it is best defined as "unsolicited bulk email dedicated to electronic advertising-the Internet equivalent of the conventional junk mail that lands on your doormat most days of the week."11 While many consider unsolicited email containing religious or political messages as spam,12 regulation of spam has been limited solely to commercial email.13
The lack of a clear definition for spam has made it difficult to precisely measure the amount of spam filling inboxes every year.14 Nevertheless, consensus suggests that the volume of spam is large and increasing.15 In 2003, a Senate committee warned that more than 2 trillion spam messages were expected to be sent in that year alone.16 A 2004 United Nations spam conference suggested that spam comprised seventy-six percent of all email worldwide.17 One anti-spam software company recendy reported that its filtering software blocked twelve pieces of spam per second.18 Whatever the measure, it is evident that spam makes up a considerable amount of all email traffic.
B. The Negative Impact of Spam
1. Impact on Use and Enjoyment of Email
Perhaps the most palatable effect of spam on the average email consumer is that it "makes the Internet less friendly [,] and e-mail less useful. …