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Legislate Away Spam? Not Likely

Analysts and activists agree legislation is unlikely tto stem the tide of unsolicited E-mail
Waiting for legislation to put a stop to spam, or at least slow it down? Don't hold your breath.

Research analysts and anti-spam activists are in agreement: Beating spam won't be easy, and the bills that may make their way through Congress this year won't solve the problem.

Gartner analysts Maurene Caplan Gray and Adam Sarner have posted an online brief that takes the pending legislation to the woodshed. While they noted that the continued rise in spam has prompted several lawmakers--including Sens. Charles Schumer (D-N.Y.), Ron Wyden (D-Ore.), Conrad Burns (R-Mont.), and Rep. Zoe Lofgren (D-Calif.)--into introducing or promising anti-spam legislation, the efforts will "end up regulating only the legitimate E-mail marketing industry. These bills will not stop spam," Gray and Sarner said in a statement.

Nick Shelness, an analyst with Ferris Research, a firm that tracks messaging issues, including E-mail and spam, agrees. "If legislation's passed, it simply drives spammers off-shore," he said, to locations where anti-spam penalties and regulations won't apply. The open nature of the Internet and its E-mail make political boundaries meaningless.

Even anti-spam activist John Mozena, the co-founder and VP of the Coalition Against Unsolicited Commercial E-mail (CAUCE), a group dedicated to fighting spam, is unconvinced that the Burns-Wyden bill (commonly called the CAN-SPAM bill) will do much.

"None of the bills that have been introduced are really the best way to take a whack at spam," he said. "Any law that gives the marketer one bite of the apple--even just one chance to spam a user before they request to be removed from the list--isn't going to work. There are too many marketers, and too many recipients."

But the fight isn't fruitless, Mozena claimed. Even if tough legislation passed in the United States shifts spammers overseas, "we still think it's worth our while to fight it. It doesn't mean that we shouldn't be cleaning up our own back yard first."

Mozena pointed out that a significant amount of spam originates in the United States or advertises products coming from U.S.-based companies.

And he sees hope in the way spam and anti-spam efforts have recently entered the discussion mainstream. "One of the things we have working in our favor is that the Internet is no longer a 'gee whiz' kind of thing. E-mail is something everyone uses every day."

Where six years ago CAUCE had trouble finding even one Congressman willing to tackle spam, the recent spam forum hosted by the FTC had several federal lawmakers in attendance.

But law alone won't cut it. The solution, he said, must come from a coordinated approach that relies on both legal and technological solutions. Among his suggestions: anti-spam laws that mimic those in place for marketing-by-fax, which forbid communication unless the parties have an ongoing relationship, and the ability of entire domains, such as a company's or ISP's, to preemptively opt out of all advertising.

Ferris Research's Shelness is much more pessimistic about efforts to curb spam. In fact, he sees no end in sight out as far as 2006. "Right now," he says, "I see no truly effective solution, including legislation, to the spam problem even as a glimmer on the horizon."

Although the grail of anti-spam would be Internet-wide deployment of signed messages to verify senders, that kind of change to the way e-mail is handled will take years. "If we could get to the point where public and private keys for digitally signing messages are as easy to obtain as doing a search on Google, we would have the technology to tackle spam. But I don't think that's likely by 2006."

Both Shelness and Mozena stressed that the real way to target spam is to hit spammers where they live: in their pocketbooks and profit margins.

"What we need are forms of attack that would increase the cost basis of spammers," said Shelness. "We may not be able to take enough spam out of the pipeline, but we can take out enough spam to make it uneconomical."

"The best way to fight spam is get rid of spammer profit," Mozena agreed. He even had an idea or two along those lines.

He would open up enforcement to include not just the Federal Trade Commission and various states' attorneys general, but also let recipients take spammers to court. "Now, enforcement is in the lightning-strike category," he said. "A spammer may get unlucky and be prosecuted by the FTC or a state's attorney general, but the chances are like the chances of lightning striking you. If recipients could take spammers to, say, small claims court, as they can to marketers who use faxes, there's a chance enough would prosecute to make spammers nervous."