Law 897:  Jeff's Amash's Assignment for October 4, 2006

Can Anything be Done About Spam?

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• An Introduction to the Problem of Spam

• What is spam exactly?

  • According to Wikipedia.com, "E-mail spam is a subset of spam that involves sending nearly identical messages to thousands (or millions) of recipients by E-mail."
  • Spambolt, a company that sells software for Spam filtering, offers this definition: "The term Spam refers to unsolicited, unwanted, inappropriate bulk email."
  • www.mail-abuse.com takes a different approach to defining spam when it states that "An electronic message is 'spam' IF:
    1. The recipient's personal identity and context are irrelevant because the message is equally applicable to many other potential recipients; AND
    2. the recipient has not verifiably granted deliberate, explicit, and still-revocable permission for it to be sent; AND
    3. the transmission and reception of the message appears to the recipient to give a disproportionate benefit to the sender.
  • Finally, The Federal CAN-SPAM Act of 2003 (discussed below) defines spam as "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)."
  • As you can see, simply defining what spam is is not clear cut.  Can you see the important implications that this fact alone has on the shape that solutions to the "spam problem" should take (i.e. focusing on content vs. consent)?

• Who is responsible for spam?

  • Up to 80% of spam targeted at Internet users in North America and Europe is generated by a hard-core group of known professional spammers whose names, aliases and operations are documented in Spamhaus' Register Of Known Spam Operations (ROKSO) database.
    • Spamhaus, an international non-profit organization "whose mission is to track the Internet's Spam Gangs," publishes a number of spam-blocking databases that are used by ISPs, businesses, universities, and others to protect over 600 million internet users.
    • Spamhaus also publishes a "Top 10 Worst ROKSO Spammers" List.  To find out who specifically you can blame for most of the spam you receive, take a look here: http://www.spamhaus.org/statistics/spammers.lasso
  • According to an MSNBC.com article published in 2003, "While the dirty work is done by secretive, faceless computer jockeys who are constantly evading authorities, lots of companies with names you know profit, at least tangentially, from their efforts."  Take a look at: Who Profits From Spam.

• The Consequences of Spam

  • Spam by the numbers.  Also glancing at the spam filtering statistics of oreilly.com gives an idea of the effect that spam can have on a single mail server.
  • In case the annoyance of it all wasn't enough, here are a few more reasons why most people think that spam is bad.
  • Believe it or not, spam can often be quite effective for spammers.  A recent study showed that spammers can make money off spam messages that promote stocks.  Read about the study here:  http://www.technologyreview.com/read_article.aspx?id=17348&ch=infotech&sc=&pg=1

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• Some Legal Solutions to the Problem

• Federal Legislation

  • After lobbying for a uniform federal solution by the Direct Marketing Association, a group with few friends amongst anti-spammers, the CAN-SPAM Act of 2003 (Public Law 108-187) took effect on January 1, 2004.  Skim through its provisions and read the summary of it below.
    • "The Controlling the Assault of Non-Solicited Pornography and Marketing Act requires unsolicited commercial e-mail messages to be labeled (though not by a standard method) and to include opt-out instructions and the sender's physical address. It prohibits the use of deceptive subject lines and false headers in such messages. The FTC is authorized (but not required) to establish a "do-not-email" registry. State laws that require labels on unsolicited commercial e-mail or prohibit such messages entirely are pre-empted, although provisions merely addressing falsity and deception would remain in place."  http://www.spamlaws.com/federal/summ108.shtml#s877
  • Federal actions for CAN-SPAM offenses:
    • FTC Shuts down Four Spam Rings:  http://news.com.com/FTC+shuts+down+four+spam+rings/2100-1030_3-6115948.html?tag=sas.email
    • Oklahoma man wins $10 million judgment against spammer: http://www.cauce.org/node/68.  (The decision in this case was based on both the Oklahoma spam statute as well as CAN-SPAM.)
  • Anti-spam organizations have largely responded negatively to CAN-SPAM, arguing that it does too little, calls for opt-out provisions in spam emails (as opposed to disallowing all spam unless a person opts-in), and it has been suggested that it actually encourages spamming.  Undoubtedly, looking at the spam statistics above, spamming has not been substantially deterred by the Act.
    • Spamhaus.org position on CAN-SPAM: http://www.spamhaus.org/position/CAN-SPAM_Act_2003.html
    • The Coalition Against Unsolicited Commercial Email (CAUCE) position on CAN-SPAM: http://www.cauce.org/node/82
    • Finally, take a look at CAN-SPAM is Stupid and browse some of the links from there (I recommend taking a look at the Wired News article).

• State Legislation

  • Until 2003, when CAN-SPAM came into effect, regulation of unsolicited commercial email was a matter solely of state law.
  • Check out Professor David Sorkin's summary of States' spam laws, and in particular, take a look at Michigan's anti-spam statute, MCL 445.2501 et. seq.
    • It has been said that state spam laws are harsher on spammers than CAN-SPAM is.  After reviewing CAN-SPAM below, do you think that's true?  What, if any, differences do you see between the Michigan law and the federal law?
  • State spam statutes have on several occasions been unsuccessfully challenged on dormant Commerce Clause and First Amendment grounds.
    • Dormant Commerce Clause: Read Ferguson v. Friendfinders, 94 Cal. App. 4th 1255 (2002).
    • First Amendment: Read the case that establishes a standard for first amendment protection of commercial speech generally (written before e-mail spam existed), Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980).  Optional: For a case that applies Central Hudson specifically to spam legislation, read White Buffalo Ventures v. University of Texas.
    • Questions:
      • Why do you think statutes prohibiting spam have largely been upheld against dormant commerce clause and first amendment objections whereas pornography laws have been struck down by almost identical arguments?
      • In regards to Central Hudson, is it clear that spam constitutes "commercial speech" (and should therefore be entitled to some first amendment protection)?  Is all spam "commercial speech"? 
  • CAN-SPAM did NOT eliminate all state regulation of spam.  Section 8(b)(1) of CAN-SPAM states that "This Act supersedes any statute, regulation, or rule of a State... that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto."
    • Read: Jaynes v. Commonwealth of Virginia (News report of the case can be found here: Anti-Spam Conviction Upheld)
    • Do you agree with the Jaynes court's preemption analysis?

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• Some Other Solutions to the Problem  

• Despite some victories, the international nature of spamming (recall how many of the top 10 worst spammers were from the U.S.) makes it difficult for legal solutions to have a substantial effect on spam.  For example, read Crime Rings Discover Spam.
• Technical solution?
  • (Optional) Take a look at technical solution to the problem of spam, written in-part by Benjamin Chiao (the School of Information student auditing our class):  Using Uncensored Communication Channels to Divert Spam Traffic.
    • Do you think that it's a good idea to have two separate channels for email - one for personal email and another one for spam?  Does it seem like the "open channel" for spam is an all-or-nothing proposition (that is, if you want to receive some specific types of spam then you still have to deal with searching through all the spam on the open channel that you don't want)?
• Market-based solution?
  • Do you think a market based solution (i.e. requiring an "email stamp" to send messages) would be a good solution?  Is it something you'd be willing to pay for if you thought it would stop or significantly reducing spamming?
  • Read this article about the spam situation in Canada, which argues that a market-based approach is not enough.
• No solution?
  • Do you think we can ever find a complete solution to the spam problem or do you believe that spammers will always be able to develop ways to get into our mailboxes?  Or, perhaps, do you believe that spammers should be free to spam (short of acting fraudulently) as much as they want?
• Have fun with spam?  (optional, as fun in law school always is)
  • You think you've got it bad?  At least you're not this poor schmuck
  • Spamwars game (I in no way condone the shooting of spammers, but it does go to show the position that spammers have come to occupy in American society).
  • Go to www.spamusement.com for more of the cartoon illustrations of actual spam subject headings featured on this page.

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