Top Mistakes of some anti-spam advocates

Saying the problem with spam is about the cost of a single spam

The physical cost, at least in the USA, of a single e-mail is insignificant. We've worked hard to make it that way. In most cases, in fact, everything is paid for flat rate so the cost of an additional e-mail is really zero. But even if you factor in all one's internet and computer costs and try to work out the percentage of resources devoted to an E-mail it works out to a tiny fraction of a penny.

This is nothing you'll ever get people really worked up about, and certainly nothing worthy of drastic action such as punishing innocent people, shackling the network or calling in the government.

The real cost of spam comes only because there is so much of it, so much that it overloads ISPs, fills up mailboxes and makes people scared to reveal E-mail addresses in public. The cost includes the human time wasted dealing with it. But no single spam ever made anybody in the USA lose an extra penny of real money.

Saying that spam is commercial or "UCE

Many people use the term UCE (unsolicited commercial E-mail) to refer to spam. But this is wrong for two reasons. One, spam is really only an issue because it's sent in bulk. Mathematically it's easy to show that non-bulk E-mail can't ever overload our servers or make a significant impingement on our mailboxes.

Secondly, while the vast majority of spam is sent with commercial motive, it's not inherent. I've gotten religious spam, political spam, charity spam and even tragedy spam, when somebody mails everywhere they can because they are desperate to help their sick child or some other personal problem. One of the most common types of spams is scam-spam, already illegal, such as an offer not to sell you something, but to give you TWENTY-TWO MILLION DOLLARS hidden in a Nigerian bank.

Third, there is even the odd UCE that's not undesired or otherwise worthy of blocking. When I used to run a company, sometimes I would get unsolicited mail written just for me saying, "I'm really interested in your firm because the work you are doing in xxx is what I've always wanted to do. Got any openings?" Written personally for me (rather than blanked mailed to a list of employers) this is UCE but it's desired and not spam.

Calling for state law to ban spam

A lot of people pushed for and got state laws to limit or ban spam. These laws are almost all unconstitutional. States shouldn't be regulating such a location-independent thing as E-mail. It's a bad precedent you don't want to set. Much of the time, I send an E-mail and have no idea what state the recipient is in. Do you want to change it so you are required before sending E-mail to find out what state it's going to and then learn and obey the E-mail laws of that state?

You may like the anti-spam law but are you willing to grant the states the power to pass any e-mail law their legislatures desire? What about the anti-indecency laws New Mexico tried to pass?

Calling for federal law to ban spam

First of all, now that there are dozens of state laws, people should take a look and see how much they've cut down the volume of spam for people in those states. The answer is they haven't done so at all. Even if you were convinced that laws were the answer, it's hard to argue now that they can work.

Most of the federal laws are probably unconstitutional too, and passing and fighting for or against them will be a counterproductive waste of time and not stop any spam.

Is government regulation of E-mail the answer? Is it something you want to encourage? I think it's a last resort, and we aren't even close to having exhausted all the other resorts. Spam's been around a few years now, a long time in internet time, but a blink of an eye in the world of laws and society.

Even the USA's federal government is limited in what it can do. Spammers can quickly move to other countries to attack.

Expecting the laws will punish many spammers

The truth is that the junk fax laws, and the junk phone call laws, have been remarkably ineffective. I've taken junk phone callers to court, and won, and heard the judges say I'm the only such case they have ever seen. And the calls keep coming. Those laws are not a model of success.

Now we have 23 state spam laws and and far as can be told, they haven't even dented the problem, just caused strife and legal battles.

Calling for law that regulates commercial E-mail

A combination of a couple of the above mistakes, the problem here is that it means we allow the law to dictate things about the content of our E-mail. One E-mail would be legal and another illegal based simply on what the E-mail says. Wow, is that a bad direction to go.

What the law does, if anything, should be based on the manner of sending, not the message.

Many people think that because most spam is commercial, and because commercial speech is less protected under the 1st amendment, it's the thing to regulate. Bad news. The supreme court said you can't take that approach. They said that if you have a larger problem, of which commercial speech is just one part, you can't go after just the commercial speech because it is less protected.

Trying to get too encompassing a definition for spam

If you want to regulate something, either with law or privately, you want to get everybody behind you. That means you should seek a minimal definition of the evil you are trying to stop that still solves the problem, not a maximal one.

Many want to define spam as anything they don't like or didn't ask for. Many want to claim that any traffic sent to their machine without their invitation is an invasion of their property or theft of their resources.

Bold claims, and claims that will never get universal support. We live in a society where communication is open by default. We created an internet based on flat rates, using the system that I pay for my half of the connection and you pay for your half, and we don't attempt to account for the cost of individual packets or messages. A lot of people believe in those principles.

To top it off, our systems of law and justice are based on the principle of letting some of the guilty go unpunished to avoid punishing the innocent. We do it with murderers and we must certainly do it with spammers. We have to expect that any fair system we design, that fits our longstanding principles of justice, will not catch every bit of spam.

That's OK, because we just have to get 99% of it to turn it from mailbox destroyer to occasional nuisance. While nothing angers an anti-spammer more than a spammer who tells him to "just hit delete," the truth is that if you got one spam a week instead of 15 a day, you would be much more sympathetic to the idea of just hitting delete. Especially if the alternative is making a weapon so strong it punishes the innocent along with the guilty.

That's why I've pushed the definition of "mass mail from a stranger." It covers 99.9% of all the spam I've seen, and covers as close to zero of the legitimate mail I can think of. (A stranger is somebody you've never had wilful contact with.)

Punishing the innocent

While it's within everybody's rights to refuse to talk to anybody, it's also true that in the absence of the spam problem, we would prefer to simply have open E-mail systems without complex filters and blacklists.

As such, we should try to keep the "collateral damage" to a minimum, and base our principles on fairness and protection of the rights of the innocent rather that rigid adherence to rules.

For example, many feel closing open relays is vital to stopping spam, and have blacklisted or otherwise put pressure on sites that have them, even if those sites are themselves victims of the spammers more than anything. Some have gone too far and blacklisted relays that have not yet been used to send spam, and some ISPs have kicked off customers with open relays who use other techniques to stop the spam going through their system. In most cases, the benefit of the doubt should be given.

You may conclude that it is necessary to punish the innocent to win back uncluttered e-mail, but you should always do it with regret, make exceptions, and stop doing it once you find another way.

Assuming anybody who's not 100% with you is pro-spammer

It's remarkable how often this happens in any fight, where people on the same side, who differ on the details, start viewing their less-than-completely approving allies as a greater enemy than the real enemy. Many of the philosophies above, though clearly not pro-spammer, have elicited that reaction. You have to work hard that "If you're not with us, you're against us" is not just fallacious when other people say it.

Feeling spam is the worst problem on the net

Spam is evil, no doubt about it, but have some perspective. Is it worthy of all the legal energy being spent on it -- pointless legal energy which ends up pitching allies at one another's throats in legal battles -- compared to other problems the net has which need attention? Fight spam, but keep it in perspective.