Updated: 25 November  06:06 p.m. EST

Anti-Spam Legislation — No Easy Fix

by George W. Zobrist

In a 1970s Monty Python skit, a waitress badgered her customer to order canned meat for dinner. The customer finally said to the waitress, “I don’t want any SPAM!” (www.msnbc.com, 10/23/03). And so it continues.

Some analysts say that at least 70 percent of today’s e-mail is actually junk mail that so-called "marketers" are spamming. They estimate mail is costing businesses and consumers nearly $9 billion in wasted time and spam-fighting tools and efforts. What’s more, they estimate that lost productivity adds some $2/month to customers’ Internet bills, in addition to the time they waste dealing with unwanted messages.

The Federal Trade Commission (FTC) recently conducted an e-mail sampling and found that two-thirds of the messages sent were fraudulent. In addition, the Direct Marketing Association website estimates that nine billion spam messages are being sent every day, a dramatic increase over last year’s estimates (www.the-dma.org).

Internet Service Providers (ISPs) such as America Online, Microsoft and Yahoo have pledged to thwart spammers, while marketers have focused their lobbying efforts to fight spam regulation. One reason marketers don’t want restrictions is that, much like junk faxes, it is inexpensive to send advertisements by e-mail. Advertisers pay an estimated $500 per million messages, a miniscule fraction of the cost of sending surface mail, telemarketing or publishing print ads.

Does E-Mail Spam Differ from Other Unwanted Marketing?

Analysts have made several comparisons have been made between spam, junk faxes, telephone solicitations and unwanted surface mail. However, it's difficult to compare spam to the other three, since it's much easier to deal with the others. Consumers can disable fax machines to avert faxes, hang up on telemarketers’ phone calls, and discard surface mail. But, there are no easy fixes for e-mail spam. What’s more, e-mail messages, either wanted or unwanted, clog storage and require customers to spend time sifting through their overflowing inboxes, trying to determine which messages are legitimate and which are junk.

Current Legislative Efforts

On 25 November, the Senate unanimously voted to adopt the House version of the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act (S. 877). If the House accepts the Senate's minor technical changes, the bill will go to President Bush, who is expected to sign it and make it the first federal law designed specifically to combat spam.

The Can-Spam bill, which includes fines and criminal penalties for spammers, has received mixed reviews as the remedy for the nation's spam headaches. Some critics argue that the bill's "opt-out" requirement will allow spammers to continue to legally send spam, as opposed to requiring them to obtain "opt-in" permission before sending. The bill's co-authors, Sen. Conrad Burns (R-Mont.) and Sen. Ron Wyden (D-Ore.), however, issued a joint statement expressing confidence that, “this bipartisan bill will help to stem the tide of junk email that is flooding the nation’s inboxes." Said Wyden, “The CAN-SPAM law will help the Internet remain open for business and keep Americans’ in-boxes closed to inappropriate and unwanted spam e-mail.”

The CAN-SPAM Act includes provisions that would:

• Require senders of commercial e-mail to include an opt-out mechanism so the consumer can tell them to stop.

• Prohibit false and deceptive headers and subject lines — so that consumers can immediately identify the true source of the message, and so that Internet companies can identify the high-volume senders of spam.

• Triple the monetary damages imposed on spammers who engage in particularly nefarious spamming techniques — such as using automatic software programs to "harvest" e-mail addresses from Internet Web sites, and using "dictionary attack" software to send messages to a succession of randomly generated e-mail addresses in search of real recipients.

• Authorize strong, multi-pronged enforcement by the FTC, state attorneys general, and Internet service providers (ISPs) with the potential for multi-million dollar judgments.

Additional criminal provisions in the bill create several tiers of penalties, ranging up to 5 years in prison, for several common “spamming” practices, including:

• Hacking into somebody else's computer to send bulk spam

• Using "open relays" to send bulk spam with an intent to deceive

• Falsifying header information in bulk spam

• Registering for five or more e-mail accounts using false registration information, and using these accounts to send bulk spam

• Sending bulk spam from somebody else’s Internet protocol addresses.

Since 2000, several House bills have passed, but no Senate bill. As a result, Congress has to start from scratch each year, because unless both the Senate and the House pass a bill to get to the President for signature, the process must start over. Worse, much of the currently debated federal legislation would effectively rescind existing state legislation if it were to pass — even though in many cases, state legislation is much stronger than the currently proposed federal bills.

IEEE-USA’s Eye on Washington (Vol. 2003, No. 8, 5/23/03), detailed the Rid Spam Act (H.R. 2214). Essentially, the bill calls for:

• Identifying such mail as advertisements
• Providing opt-out provisions
• Providing a valid street address for correspondence
• Stopping e-mail address harvesting if the ISP has a policy against such activity
• Prohibiting falsification of message header information

Critics say such legislation will solve nothing. It may restrict deceptive e-mails, but it will do little to restrict legitimate but unwanted e-mail solicitation. Joanna L. Krotz of Marketing Intelligence (www.bcentral.com/articles/krotz/185.asp) cited five reasons why anti-spam laws won’t work. Those reasons are:

• By banning all unsolicited e-mail outright, First Amendment rights come into play.

• Spammers are beyond the law. Until recently, most spam originated in the United States; now much seems to be coming from offshore sources such as Korea, Eastern Europe and Argentina, to name a few. These foreign sources would simply ignore U.S. law.

• Spammers are adept at covering their tracks. Sanctions or civil penalties might discourage some large operators, but state budgets are already strained, and states have minimal resources for prosecution. The bottom line is that laws designed to reduce spam ultimately will strain taxpayers.

• Spam legislation may actually throw out the good with the bad. Systems that filter messages may filter wanted messages, such as legitimate replies and order confirmations.

• A “do not e-mail” list could actually be useful to spammers, who would request a copy of such a list saying they do not want to send e-mail to anyone on it. Guess what would happen?

Krotz’s argument is that only global partnerships will be able to stop spam effectively. Unless action becomes a worldwide effort, U.S. legislative efforts will be for naught.

IEEE-USA’s Position

IEEE-USA supports legislation to reduce unsolicited commercial e-mail on the Internet, stating that spam causes many problems, which, in turn, increase end-user costs and decrease productivity. Spam-related problems include:

• ISPs need additional storage capability
• Network traffic increases
• Users need appropriate computer resources to filter and delete unwanted e-mail
• Legislators need coordination with the public for regulating unwanted e-mail

For More Information

Several websites offer information on spam and related legislation. Try:

• www.spamlaws.com/federal
• www.news.com
• www.internetnews.com
• www.the-dma.org
• www.cauce.org
• www.bcentral.com/articles
• www.ieeeusa.org
• www.norton.com

The issues are complex. The remedies remain elusive.

 

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Dr. George W. Zobrist is professor emeritus at the University of Missouri-Rolla, Department of Computer Science. He is IEEE-USA's Member Activities editor.