Alright, cats and kittens, rockers and rollers…..we’ve been through the who, what, how, and why of spam, and what it takes to fight it. Now we’re going to look at how to stop it. For good.
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The CAN-SPAM Act of 2003 is the U.S. federal government’s attempt to regulate spam by increasing the risks (read: jail time and/or hefty fines) of sending spam.
First, let’s take a look at what the law is supposed to do.
Because commercial speech is protected under the First Ammendment, the CAN-SPAM Act cannot outlaw all commercial messages in any format (Pike, G.H., 2007, p. 15). What it can do, however, is put restrictions on the content and purpose of commercial electronic messages, including text messages.
So, if a direct marketer wants to be able to spam you without getting in trouble with the law, he or she must meet certain requirements:
- The message must include a visible, working opt-out function (Direct Marketing Association, 2004).
- The message must not contain misleading subject lines or content and must announce itself as an advertisement or promotion. (Direct Marketing Association, 2004).
- The body of the message must be relevant to and consistent with the subject line. (Direct Marketing Association, 2004).
- The “from:” line must accurately represent the sender’s identity (Direct Marketing Association, 2004).
- The message must contain an accurate postal address or phone number as an alternate means for the recipient to contact the sender (Direct Marketing Association, 2004).
- The recipient’s e-mail address must be obtained through legal means, meaning not through e-mail harvesting or from an illegally purchased list of e-mails (Zhang, L., 2005, p. 319).
- Sexually oriented messages must contain warning labels (Zhang, L., 2005, p. 318).
- And, of course, the e-mail must not contain illegal content (such as child pornography), any abusive, predatory, or obscene content, or be used to conduct identity theft (Zhang, L., 2005, p. 319).
As long as unsolicited direct marketing e-mails meet these requirements, the spam is considered legal.
This seems all well and good until you look in your spam folder and none of the spam e-mails contained therein seem to comply with CAN-SPAM. Chances are, they don’t. In 2006, a study showed that only 0.27% of all unsolicited commercial e-mail complied with CAN-SPAM (Pike, G.H., 2007, p. 16). I could not find a more recent statistic than that, but just imagine what those figures look like today, six years later!
Needless to say, CAN-SPAM draws a lot of criticism because spam is still with us, and in greater numbers—perhaps because CAN-SPAM tells spammers how to spam legally.
In addition to that major flaw, the enforcement of CAN-SPAM leaves something to be desired. Because it only has jurisdiction in the U.S., it has no effect on spam that comes from outside the U.S. borders—which, unfortunately, is where most spam originates (Pike, G.H., 2007, p. 16).
The other problem with enforcement is that, while spammers may recognize the risks of not complying with CAN-SPAM, the cost is not enough to deter them from noncompliance: sending an e-mail costs them nothing and hiding behind a botnet makes it harder for the government to find and prosecute them (Rutenberg, D.J., 2011, p. 237). In the words of one spammer: “I do not think it [the CAN-SPAM Act] will have any effect in the short run, [sic] it is a little convoluted, it is untested, and the reality is who will bother enforcing it. [sic] The price it would cost to prosecute a spammer is a lot more than the cost of spamming” (Vircom, 2004, p. 9).
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So, if CAN-SPAM isn’t doing the trick, how do we make it harder for spammers to spam?
Well, one idea that’s been around for a while comes from Bill Gates and Microsoft. First introduced in his 1995 book The Road Ahead, Gates’s idea to discourage spam effectively is a fee-based deterrent software in which e-mail from unfamiliar sources would be forced to offer up an amount of money—say, 30 cents per message—in order to deliver the e-mail (Maney, K., 2003). If you, the recipient, chose to open that spam e-mail, you would get the 30 cents. You could also choose not to accept the money if the message turned out to be from someone you knew. This method would make it more costly for spammers to send e-mails and thus not worth it.
A similar idea that has also been around for a while but is being more seriously discussed is an e-mail tax. Recently, Berkeley city councilman Gordon Wozniak proposed to add a tiny bit-tax to e-mail (hypothetically one cent per gigabit of e-mail) as a plan to provide revenue for the struggling United States Postal Service (Bradford, H., 2013).
The fringe effect of this tax would be that spammers would also have to pay an e-mail bit-tax, which may discourage them from trying to make money this way. While this method sounds promising, I wonder if this may not actually encourage spammers to use botnets and force unsuspecting users to pay the bit-tax for them or drive spammers to other spamming methods, such as web, SMS, or comment spam. I also do not like the idea of the internet (which is mostly free) being taxed. In any case, this solution could not be put into effect until the Internet Tax Freedom Act expires in 2014 (Bradford, H., 2013).
So what do you think? Would you support the e-mail tax to discourage spammers? Or do you think CAN-SPAM just needs to get more aggressive? Should CAN-SPAM require that all marketing e-mails must first be opted into (that is, a person must personally sign up for commercial e-mails) in order to be legal?
Until next time,
The Spam Champ
- Pike, G.H. 2007. The CAN-SPAM act: Not canning spam. Information Today, March 2007, 15-16.
- Rutenberg, D.J. 2011. Silence of the spam: Improving the CAN-SPAM act by including an expanded private cause of action. Vanderbilt Journal of Entertainment and Technology Law, 14(1), 225-252.
- Zhang, L. 2005. The CAN-SPAM act: An insufficient response to the growing spam problem. Berkeley Technology Law Journal, 20(301), 301-332.