Scott Tibbs
Hoosier Review, August 25, 2003
Back to opinion page.
Should there be laws against "spam"?
The Howard Dean campaign recently apologized for sending unsolicited bulk mail, otherwise known as "spam". There is an interesting tidbit in the MSNBC article on this matter:(Emphasis added is mine.) This isn't surprising in the least. The Indiana Legislature exempted political calls from the wildly popular "no-call list". Newspapers (some of the most aggressive telemarketers) were also exempted. I'm sure this has nothing to do with the fact that newspaper opposition to the "no call list" would have made it very difficult to pass.
There are some signs that politicians see spam as a cheap and effective way to reach voters. For example, out of about a dozen bills introduced in Congress that promise to regulate commercial spam, not one attempts to restrict political e-mail messages.
The reason "spam" is a problem is that there is virtually no incremental cost to adding hundreds or thousands (or more) e-mail addresses to an e-mail list. Telemarketers can only talk to one person at a time and are paid and hourly rate for doing so. Junk mail sent through the Postal Service costs extra for each piece of mail sent. Even at bulk rates that could be expensive. This is not the case with "spam". The bulk of the cost of "spam" is borne by those who receive it, and the networks that are inundated with it.
Laws against "spam" are not necessarily a bad thing. Spammers drain bandwidth of Internet Service Providers, causing them to incur more expense. It costs business money as their servers are forced to deal with increased unsolicited traffic. Individual users can use filters in Web-based e-mail accounts like Hotmail, but the "spam" is still delivered and Microsoft must still bear the cost of handling it. Deleting junk e-mail also causes lost time on the job that could otherwise be spent on work-related activities. Home users have their hard drive space taken without their permission, and their time is wasted downloading unwanted e-mail. Furthermore, "spam" advertising pornographic Web sites is becoming more and more aggressive, including pictures of nude porn "actresses" or "actresses" engaged in various sexual activities. From a libertarian perspective, there is clear harm from "spam" and it is reasonable to punish those who cause that harm.
The obvious wrinkle in legislation against "spam" is the brazen hypocrisy of politicians exempting themselves. If this is a free speech issue, why should we create special classes of speech? While it is true that the First Amendment was written specifically with political speech in mind, the Constitution does not distinguish between commercial and political speech. While it may be reasonable to argue voter participation in the electoral process is enough of a "compelling state interest" to exempt get-out-the-vote phone banks from "no call" lists, the use of political spam (especially for fundraising purposes) does not meet that criteria. Any anti-"spam" legislation that exempts political junk e-mail should be rejected.
While my first reaction to federal anti-"spam" legislation is that I would rather such things be handled by the states, it is reasonable for this to be federal legislation. Two reasons for this are that "spam" falls under the Interstate Commerce Clause and that "spam" may not fall under the jurisdiction of state laws if the mail originates in another state. The major problem with anti-"spam" legislation is that it will likely not be effective. The state of Indiana passed a law regulating "spam" this legislative session, but the flood of unsolicited junk e-mail to Hoosiers has not abated. The "spammers" have not even abided by the requirement that they place a tag in the subject line indicating that it is an advertisement! If "spammers" move offshore, they will be beyond the reach of U.S. law.
The solution to this problem may need to be technological. Large Internet service providers and Web portals like MSN, Yahoo, and America Online are working on solutions to stem the flood of junk e-mail. SamSpade.org is an excelent resource for tracking the source of junk e-mail through the IP numbers in the e-mail headers.
Perhaps another solution is to open up civil courts to lawsuits in response to "spam". The record industry is making a dent in illegal trading of copyrighted music files by filing lawsuits against individual users. If Internet Service Providers (especially giants like AOL/Time Warner and Microsoft) start winning civil judgments against "spammers" the incentive to "spam" would be reduced. If Internet Service providers are held accountable through civil lawsuits for lax anti-spam policies, they would have an incentive to crack down on "spammers".
While solutions are being considered, "spam" is unfortunately here to stay. But perhaps the flood of junk mail can be stemmed by the creativity of the Internet. Whatever the solution is, that solution is at least a few years away.