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Jewish World Review April 22, 2003 / 20 Nisan, 5763

Jonathan Turley

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Consumer Reports

Congress Must Send Spammers a Message | If the Internet had existed when Moses came down from Mt. Sinai, there might have been an 11th Commandment: "Thou shalt not spam thy neighbor."

In fact, some faithful might have asked Moses whether the 10th might be better directed at spamming than coveting. Unlike some harmless fantasy featuring the neighbor's wife or goods, spamming imposes huge costs on the system and society.

America Online recently sued 12 individuals and companies that are clogging its subscribers with unwanted, unsolicited e-mail. AOL has reason to worry; those spammers alone are reportedly responsible for more than 1 billion such messages, and this new form of pollution threatens one of the greatest technological advances of this generation.

The five AOL lawsuits, filed in federal court in Alexandria, Va., may lead to important insight into the workings of these shadowy operators. But, without congressional action, they may do little to stem the tide of spam.

Despite anti-spam software, spam is expanding exponentially. In 2001, according to one industry study, spam represented roughly 8% of all Internet e-mail. By last year, that percentage was at more than 40%. For some users, it can be as high as 90%.

Spam now costs American businesses about $9 billion a year in lost productivity and screening. Many users currently receive the equivalent of a discount catalog of junk mail with a single legitimate message buried within it. Few people have the time or inclination to sort through hundreds of spam messages to find the one e-mail that is not marketing discount Viagra or a Russian wife.

As a result, some people are abandoning e-mail and returning to conventional mail and telephone communications. This is already occurring in countries such as Japan, where people are giving up cell-phone services because 90% of text messages are now spam.

As the AOL lawsuit illustrates, spammers have changed subject lines, routed e-mails through foreign servers, adopted fictitious names and taken other deceptive measures to get through to computer users. One growing subset of spammers are called spoofers, who use subject lines that feign familiarity to trick users into opening spam messages.

When legislation has been threatened, spammers have cloaked themselves in the 1st Amendment, insisting that any prohibition on spam would violate guarantees of free speech.

In the last year, however, both the practical and legal positions of spam have changed. Spam now is a real threat to the medium of Internet communications. In this sense, it is like virtual pollution. The Internet is a common resource that will be lost unless we protect it.

This is a situation analogous to Garrett Hardin's classic economic model, "The Tragedy of the Commons." Under this model, a group of people live around a commons green in which any individual can introduce cattle to graze. So each person brings more and more cattle until, finally, the commons area is destroyed.

The Internet is a type of virtual commons that is being destroyed by a small number of people who individually are acting rationally to maximize profits. Their collective actions, however, will ultimately kill the resource they are exploiting. Likewise, the first federal environmental statutes were enacted in the 1960s after a failure of private property interests and state laws in stemming pollution in common resources like air and water.

This is one area where a useful distinction can be drawn between commercial and political or religious speech. Commercial speech is protected, but it is not given the same range of protection as political or religious speech. Congress could prohibit forms of spam and impose criminal penalties on the worst of them: pornographic images that pop up without a user opening the e-mail, exposing children to the images.

Barring political spam ads would raise constitutional questions, but there is little need to do that: With spam less popular than the Ebola virus, savvy politicians aren't likely to use it.

For commercial spammers, however, the 98% rejection rate still allows a hefty profit on the 2% return. The U.S. government has sued a porn site spammer in Illinois who made $1 million a year on such a margin. The suit accuses the spammer of using innocuous subject lines like "Wanna Hear a Joke" to get users to open a link to his porn site.

One solution would be federal legislation that prohibits forms of spam and imposes heavy financial penalties on both spam operators and the advertised businesses. The European Union chose this course in May. In the U.S., lobbyists have effectively killed bills banning forms of spam in the last two sessions. Members of Congress need to be prodded to ban this virtual pollution.

Just remember to use the telephone; their e-mail inboxes are full.

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JWR contributor Jonathan Turley is a law professor at George Washington University. . Comment by clicking here.

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© 2002, Jonathan Turley