Soon we will have new federal anti-spam legislation, which preempts the patchwork of state legislation. Assuming the President signs it (which he will), life should get a lot easier for email marketers next year. One law, not 37. No weekly trips to small claims court by corporate lawyers to settle lawsuits from “spambulance” chasers. This law is good for business.
Yet consumers won’t see a bit of difference as a result of the CAN-SPAM Act.
The CEO of a leading anti-spam firm told me last week the amount of fraudulent email — phisher attacks, sent with the sole purpose of defrauding recipients — had increased from 4 percent to 14 percent of the total spam volume from June to October. The general manager of a major ISP told a group of retailers his service now gets over 4 billion email messages per day. He estimates about 10 percent of that is legitimate (non-spam) email.
Spewing out billions of messages is so cheap and easy for spammers that even if legislation reduces the number of spammers by half, clutter in the average inbox won’t be affected.
The question, then, is not whether we can get rid of some spammers. Unless legislation can significantly reduce the total spam volume, it won’t have any impact on ordinary citizens’ inboxes or reduce costs for ISPs and other mail gateways.
Below, a few scenarios to evaluate the new legislation’s impact on solving the spam problem (i.e., significantly reducing the volume of unsolicited email). Can our new federal legislation or any other legal approach we could dream up rid our inboxes of enough clutter to make the slightest difference?
Scenario 1: We Catch ‘Em and Hang ‘Em Out to Dry
During a recent conversation with a Microsoft executive, I learned that to find one of the suspects the company’s pursuing with its highly publicized lawsuits against purported spammers, it had to file 15 subpoenas.
Nevertheless, let’s assume the government can find spammers, the spammers are within jurisdiction of U.S. courts, and a highly public case is made of prosecuting them. Will this stem the flow of spam? How many is the government going to pursue and catch? 10? 20? Maybe 50 in the first year (one per week)?
Law enforcement cannot possibly catch all spammers. A few well-publicized examples of heavy-handed government prosecution, however, might have a chilling effect on spammers’ deceptive practices. And that brings us to scenario number two.
Scenario 2: Spammers Decide the Risk Isn’t Worth the Fun
What happens when law enforcement decides it’s going to come down on drug pushers in a particularly bad neighborhood? After a while, the pushers determine they can’t make a living in that neighborhood any more and move their activities to another location. As long as there are customers willing to buy, there will be people willing to risk selling illegal drugs.
Spammers operate in virtual neighborhoods. They constantly roam the Net looking for customers and hosts for sending out their solicitations. Sometimes the hosts know they’re harboring spammers; often they don’t. If we shut down one Net neighborhood, spammers will find another. If we make it too hot to operate within the U.S., they’ll set up their operations overseas.
Will strong legislation cause some spammers to take down their shingles? Sure. Will it affect our inboxes? That’s highly unlikely. Those committing fraud (14 percent of the current spam volume, as referenced above) and some pushing pornography and get-rich-quick schemes are illegal under existing laws. They’ll simply keep switching Net neighborhoods, always staying one step ahead of law enforcement.
Scenario 3: Legitimate Companies Clean Up Their Acts
Say we’re not able to rid the world of spam sent by the shadiest characters; surely we can make honest businesses clean up their acts. No contest. The threat of visible and costly lawsuits will undoubtedly have an impact on how legitimate corporations send customer marketing and communications email. But will this make a difference in our inboxes?
Take a quick look at the stuff you’re getting right now. How much of it is from “legitimate” companies you don’t want to hear from and can’t stop with a simple unsubscribe email? How much is from companies you’ve never heard of and with whom you would (presumably) never do business? If my inbox is any indicator, the unsolicited junk dwarfs the email messages I’ve signed up for and actually want. The CAN-SPAM Act will ensure companies I’ve heard of will honor my unsubscribe requests, but that’s not the problem with my inbox.
Why not just pursue those hawking their wares using spam, the actual sellers of Viagra and pornography? Go after the money trail, and the supply will dry up, right?
Although this may stem Viagra shipments originating within the U.S., it will neither stop fraud nor shut down servers hosting pornographic images. Legal or not, the fraud can simply originate overseas, placing it beyond the reach of U.S. law enforcement.
A couple weeks ago I opened a phisher email purporting to be from Citibank. I clicked a link to see where it would take me. I didn’t land on the intended Web page that would have asked for my personal information to steal my identity. Instead, I landed a jump page that, in broken English, said the original page was no longer available. A few second later I was forwarded to a page filled with Cyrillic characters. All I could decipher was that I had landed on a Russian Web page.
This final example illustrates the complexity of the problem we’re facing. Net neighborhoods are virtual and distributed. Spammers exploit a core attribute of the Internet, namely that they can hide or falsify their identities and broadcast mass email virtually for free from anywhere on the globe that sports an Internet connection.
Although preemptive federal legislation will simplify life for legitimate businesses that use email in their marketing, it won’t be a panacea for solving the actual spam problem. Will there be any less spam in your inbox in 2004 as a result of the CAN-SPAM Act? Don’t hold your breath.
For more on the CAN-SPAM Act, read Ben Isaacson’s column here.
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