Updated: 24 September, 2000


Junk e-mail and spam - discussion

(How to Get Rid of Junk Mail, Spam, and Telemarketers)

In 1997, this website presented a discussion of pending anti-spam legislation by Murkowski and by Smith. In debating the merits of these bills, the following letter thoroughly describes some of the problems and pitfalls if such legislation:
On Monday 8/11/97, Mike wrote:
I believe some of the comments on your site are not accurate. The existing anti-fax legislation is NOT "99.9% effective" in curbing junk faxes -- quite the contrary.
Let me explain - in addition to my own personal experience which clearly indicates otherwise, I add these comments:
#1 It's much cheaper to send UCE than it is faxes; nonetheless, junk faxes are still a very, very serious problem - and with e-mail, UCE will be even more prevalent than junk-faxes because:
a) The sender can be much more anonymous than with faxing; there is virtually no easy way to track down offenders via e-mail unlike faxing or telephone solicitation - and they can change IP addresses and hosts with a fraction of the cost it would take to change telephone lines or telemarketing shops.
b) The infrastructure of the Internet is worldwide - so US legistlation will not be effective; Spammers can move around more quickly - and therefore the fax-related provisions don't carry the same weight for e-mail. It's not practical to operate an overseas junk-fax business, but there is NO additional costs involved in moving a UCE operation overseas.
#2 Virtually every ISP in the world reserves the right to edit, restrict and/or view the content of information passing through their systems. This has not been adequately challenged or overruled. In fact, existing court cases and precendents reinforce the claim that computer networks are "private property" and therefore can be tresspassed upon, and are not subject to claims of Freedom of Speech violations. As an ISP, I reserve the right to censor or filter anything coming onto my property. Your claim that Murkowski's bill would be ineffective because ISPs would be sued by spammers who filter their posts has no precedent or grounds IMO. In every case that I'm aware of, including the landmark AOL dispute, the ISPs WERE allowed to filter and censor their content as they deemed appropriate - so I don't believe your arguments are accurate or viable (and you cite no evidence to prove your claim). You are spreading mis-information on this issue. You claim that as long as a spammer properly tags his e-mail that he is immune from cancelling - this is patently false.
Fred, I suspect you are blinded by the assumption that just because Cyberpromo endorses Murkowski's bill, that it's bad - you are wrong, and I'm unaware of any endorsement by Cyberpromo of the bill in the first place.
#3 As I said in my previous message, the problem with Smith's bill is the damage amount, which makes it infeasible to take action (either civilly or criminally) against spammers, and due to the anonymous nature of the Internet, it makes it a major undertaking to even identify spammers to take action against -- requiring cooperation from both the prosecutor/plaintiff and the individual ISP - which may be overseas and immune in the first place before you could even find out who was involved.
#4 Most of the problems you site with Murkowski's bill are also present in every one of the other bills, including adequate protection on an International level, non-commercial spam, etc. I don't believe any of the bills "legitimze spam" as you claim. In general, the idea that one could be liable for 'non-commercial' spam is ridiculous in itself. If someone accidently misspells the receipient e-mail address should be he liable for $500? That's crazy in my opinion - and we all know, the problem is commercial spam, not non-commercial. Any bill that includes "non-commercial" messages in the regulation WILL be struck down and ruled unconstitutional - period. "Non-commercial" traffic which would otherwise cause harm is already restricted under existing "tresspass", "malicious mischief", "destruction of private property" and "denial of service attack" legislation.
However, let's consider the scenario here. Almost all the bills would supposedly force spammers to "appropriately label" their messages. I'm an ISP, and I also coordinate the activities of two other major ISPs, representing over 100,000+ users. I can tell you that as soon as we can effectively filter spam, we will... and so will every other ISP - especially the smaller ones who can't spare the resources. If users cry "foul", they can go to "spam-friendly" ISPs, and those of us who filter the obnoxious messages will end up with more customers as a result of our policies, which are overwhelming supported by the majority of net users. NOBODY is going to tell me what I can and cannot do with MY computer networks - that is unconstitutional!
You claim the spammers will take legal action against ISPs who filter? I beg to differ, and I welcome the time when things are turned around and the burden is on THEM to take legal action as opposed to us having to sue them to stop. Hallejulia! Just like it is now for us, it will NOT BE FEASIBLE for them to sue each and every ISP who filters out their junk - they might be able to go after CIS, AOL and the other big guys, but they can't sue every little ISP in the country, and if by some chance AOL, CIS or a big ones lose (which is highly doubtful based on current precedents), we'll continue to attract users from those systems who don't want annoying UCE.
No matter what happens, there will continue to be an administrative overhead on the part of the ISPs to filter spam and enhance security. No bill will put an end to that. The most we could ask for his some SERIOUS CONSEQUENCES mandated by the government against those who forge headers and hijack mail relays, and the only bill which does this is Murkowski's.
Furthermore, the $11,000 damage amount associated with Murkowski's bill makes it very risky to not play by the rules. The $500 of Smith's bill is a joke - it won't stop anything.
Irregardless of what bill gets passed - if one of them does, chances are spammers will be forced to label their material - and as soon as they do, ISPs will finally have a way of filtering them out. The backbone providers may not do the filtering, but each individual ISP will - this is a certainty! As a result, as has been exhibited in the past, spammers will seek some method of circumventing the filters - and the only way to do so would be to violate the regulatory rules. Under Smith's bill, they face a whopping $500 penalty - not enough to motivate anyone to sue them; however, under Murkowski's bill, the amount is $11,000 - even if one person sues under Murkowski's bill, it can hurt them badly.
Even if ISPs were nailed for e-mail filtering (which WILL NOT HAPPEN), all they would have to do in order to be legal & constitutional is set up a second, un-filtered POP server and offer their customers the option of going through the filter or not - so your arguments over spammers suing ISPs is invalid. I'll gladly set up a second, unfiltered mail relay - even though I don't know any customers who would want such. And what will happen is spammers will create incentive programs to maintain "mailing lists" of users who OPT-IN, and under this scenario, they can probably get away with avoiding the labelling of their ads, calling it a "private, by-subscription mailing list" which would be protected by the first amendment. If Bob invites me to e-mail him, then it is no longer an issue of UCE, and I won't need to label it "X-Advertisement:", and it falls outside the boundaries of ALL the existing legistation. This is a problem that will surface in the future -- see below.
Now let's address the OPT-IN, OPT-OUT issues. Neither one is essentially very effective. We already have OPT-IN working - it's called a MAILING LIST. None of the existing pending regulation (as far as I know) addresses the issue of subterritiously subscribing a third party to a mailing list, or verifying the authenticity of OPT-IN processes, so OPT-IN is not a feasible method of curtailing spam either. This is a GLARING loop hole in all the bills that the spammers will exploit.
OPT-OUT is a joke as we both know - because by the time you've opted out of one list, your address has been pressed on a CDROM that's on it's way to 1000 would-be spammers for $49.95.
No bill currently pending is an effective solution, but Smith's is especially useless, because there is really no incentive for spammers to operate responsibly. Think about it - forget about Cyberpromo and the IEMMC - they are not the problem; they are big, yes, but they are easy to hit. The problem comes from the jerk in Baton Rouge, who operates "Bob's Promotion" and is subcontracted by the big boys, and uses a different dial-in account and mail relay each time he spams. By the time you get his spam, he's already somewhere else, working on the next deal through another ISP. He's not worried about $500, but $11,000 will make him think twice - and it will make him worth catching. Smith's bill will do more to increase spam than anything else - it will force the big companies to operate via thousands of little "sub-contractors" who can't be caught. This is EXACTLY how the telemarketers and junk-fax companies have continued to operate.
Companies like Cyberpromo don't do junk faxes anymore - not because they can't - oh, they most certainly can. But they want to charge BIG BUCKS for big promotions, and their egos motivate them to promote themselves as much as their clients - which doesn't work under the existing legislation - they'd have to go into hiding and spread the money around (in shell companies) to continue faxing & telemarketing. They don't do that anymore because they can have their cake and eat it too with e-mail, more profitably - they can build a mega-corporation that they couldn't do with faxing. Maybe Smith's bill will hurt Cyberpromo because they will be the first ripe target, but ultimately, Cyberpromo, having no alternative, will sub-contract with a million little guys who will do their dirty work, and nothing will change.
Anyway, this is my take on the issue - and it's not simply from the perspective of an annoyed end-user. I've had my mail relay hijacked numerous times; I've had people run SATAN against my networks and try to break in. I administer several dozen servers across 3 T1s and 1 E3 in Europe.
If I were interested in spamming, I'd most certainly support Smith's bill, and I suspect that Cyberpromo secretly wishes for the Smith bill to pass over any of the others because it ultimately is the one with the most loop holes and easiest to circumvent. You your brain and THINK! Of course they're not going to endorse it - because everybody hates them - they're probably claiming they hate the legislation (Smith's bill) - it's a bit of reverse psychology on the gullible Internet community. You guys need to read all the legislation before it's too late. You need to remove the inaccurate generalizations you have about Murkowski's bill from your site. You want to give Smith's bill some TEETH? Make the potential damanges 5 figures or more, and I'll be all in favor of it.
I tried to make my survey relatively objective - in the next version I'll most certainly put the other bills on the questionnaire - I have no prejudice against them and no reason to downplay their significance. Personally, I think Smith's bill is the worst - because I have seen it have no affect on junk faxes - and you are wrong if you claim otherwise. Give me a mailing address and I'll send you a thousand junk faxes I've received in the last few months prior to me changing my fax number. I'd like to see you try to sue all 1000 of these different companies, each for $500 and not go bankrupt.
-- Mike

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Copyright 1995-2004 Fred Elbel. This material may be freely used and distributed only for non-commercial purposes, with credit. Nothing in this web site should be construed as legal advice. This web site is provided for information purposes only. Opinions presented are those of the author (or of other contributors as indicated). Trademarks and copyrighted items remain the property of the owner.