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Business Technology: Clear Policies Needed To Fight Spam

The question before the house: In the escalating battle against the noxious flow of spam, is bad legislation better than no legislation at all?

Two examples of ill-conceived legal solutions come to mind: one from several years ago, and one that will become real on Jan. 1. In the former attempt at enacting anti-spam legislation back in 1998, both the House and the Senate wrote their own versions, but neither of those versions ever passed the other chamber and therefore never became law. The inside-the-Beltway reasons behind those nonpassages are not really worth exploring except for those suffering from insomnia, but the real significance of these stillborn attempts is that since 1998 they have been cited probably several million times in the spam/anti-spam battles. That's pretty impressive staying power for something that never really formally existed. But what's a lot less impressive is that these "laws" have been cited those many million times NOT by the recipients they were devised to protect but rather by the spammers themselves, whose junk mail makes reference to "Bill S.1618 Title III passed by the 105th U.S. Congress." That pathetically feckless attempt to control this hog on ice mandated that spammers include a "remove" feature in their missives, which is about as efficacious as the Food and Drug Administration saying that the makers of hot dogs can put birds' beaks and horses' hooves and other delicacies into their wieners as long as they admit they're putting that stuff in there.

Which brings us to today, with barely three weeks to go until the debut of anti-spam legislation from the great state of California that former governor Gray Davis autographed a couple of months ago. Now, I'm confident that I despise spam as much as the next guy, but this California law makes that state's triple-your-car-registration-fee fiasco seem almost sensible. While its philosophical intent might be laudable--eradicate all unsolicited E-mail of every type that arrives in California or originates in California or passes through California (or mentions the word California???), whether that's one person sending an E-mail message to somebody she met on an airplane or a company that purchases a list of names of people who've opted in for particular types of information--it's so sweeping in its reach and so ill-conceived in its design that the only "winners" will be class-action litigators.


After a long dry spell, hosts of small firms across the country are starting to take on workers again--a significant step in an economic recovery that hasn't seen much job creation. ...The hiring has been spurred by Bush administration tax cuts and a new eagerness by banks to court small firms. But the biggest factor is improving sales.

-- Dec. 4 front-page news story in The Wall Street Journal

I can understand a state wanting to raise revenue through legitimate means, but this goes so far beyond that norm that it's actually rather scary. Consider this: The law also requires that you know which E-mail recipients live in California, which ones have mail servers that reside in California even though the recipient might live elsewhere, and other hair-splitting scenarios. Or, say you see an interesting item on a news site--can your company forward that to someone in California without that person's permission? What if your friend is in Nebraska, but the item originated with a reporter in California? Each and every DavisGram could cost you or your company $1,000--do you think there's maybe one or two tort lawyers out there doing the math and checking to see if your company's been naughty or nice?

I loathe spam and would love to see sound, proper, clear policies that set some rational boundaries around it and appropriate repercussions for those who cross those boundaries. But California's proposed laws will cause more headaches than they would relieve. Neither Californians nor the rest of us who'll be hobbled by this crazy legislation deserve this unhealthy and unappetizing gelatinous ground-something composite, and we should work together to scrape it off our plates and into the trash where it belongs. Because substituting dog food for spam is not an improvement.

Bob Evans,
Editor in Chief

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