New law says you 'can' spam

By Ray Everett-Church
Posted on ZDNet News: Dec 17, 2003 2:00:00 PM

COMMENTARY--After six years of wrangling over legislative ways to stop spam, Congress was still faced with a fundamental choice: Give consumers control over the growing flood of unwanted spam e-mail that fills their in-boxes, or give in to the powerful advertising and marketing industries who want to be the ones filling consumer in-boxes.

In the end, consumers lost.

The Can-Spam Act, signed into law Tuesday, is being touted as relief for the millions of consumers

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beset with unwanted e-mail. But careful readers will notice that the law is not called the "Can't-Spam" Act. There's a good reason: The law is little more than an instructional guide for how to keep pumping out millions of e-mails per hour while avoiding legal liability.

Can-Spam sets forth various dos and don'ts for the spammer who aspires to be legitimate. Do put your company's name and street address in the body of your advertisement. Don't use a fake return address. Do give people a method by which they can opt out of messages about your company's latest clearance sale on earth-moving equipment. Don't bother to ask whether the millions of people you are e-mailing could possibly even need your products in the first place.

This law is a result of the direct-marketing lobby's success in convincing Congress to redefine the spam problem as being about dishonesty rather than the negative effects of massive volumes of unwanted e-mail. Marketers argued that because most of the spam in consumer in-boxes is filled with fake headers, forged return addresses, and bogus opt-out links, outlawing those practices will make the "bad" spam go away and make room for "good" e-mail from legitimate companies.

Can-Spam sets forth various dos and don'ts for the spammer who aspires to be legitimate.

Legitimate marketers have long been frustrated by spam. Just as mainstream companies were discovering how much money could be saved by migrating ad campaigns from postal mail to e-mail, spam began to drive consumers crazy. Yearly surveys have shown consumers steadily growing both weary and wary of commercial offers received via e-mail. Companies have also been forced to invest millions in disruptive antispam filtering technologies which all too frequently block legitimate mail while letting spam pass through.

Yet marketers remain desperate to get into consumers' e-mail in-boxes, so swapping "bad" spam for "good" spam is what the Can-Spam Act is all about. Provided that each e-mail is truthful and provides an opt-out process, the law grants every marketer one free shot at e-mailing every American with a working e-mail address. The Direct Marketing Association calls this getting "one bite at the apple."

Unfortunately, the apple isn't that large, and marketers have very big mouths.

The danger in providing one bite to every would-be e-mail marketer is that when you look at the numbers, they foretell disaster. The U.S. Small Business Administration estimates that there are about 25 million small businesses in this country. If only 1 percent of those businesses sends a single legitimate e-mail message bearing an opt-out feature to every American, we will average more than 650 unwanted e-mails per day.

Provided that each e-mail is truthful and provides an opt-out process, the law grants every marketer one free shot at e-mailing every American with a working e-mail address...when you look at the numbers, they foretell disaster.

Could that many businesses decide to send spam? An editorial in a major marketing industry newspaper recently scoffed at the idea. But after years of telephones ringing at dinner time and receiving three copies of the same catalog in your mailbox, ask yourself how many marketing executives got their jobs based on their qualities of patience and self-restraint.

Unburdened by fears of legal liability for spamming, it is only a matter of time before increasing numbers of legitimate marketers turn to unsolicited e-mail as a low-cost alternative to sending out credit card offers and coupons for laundry detergent.

The direct marketing industry believes that the Can-Spam Act is a great victory. (By the way, so do several of the world's most prolific spammers.) But I believe that even legitimate marketers will soon come to realize what many have long feared: An unfettered right to spam will continue to erode the usefulness of e-mail as a communications tool.

The best we can hope for is that the Can-Spam Act will have little effect on the spam problem, and the world will continue to seek other methods of controlling the flood of junk e-mail. Meanwhile, as we enter this election season, when our congressional representatives tell us how they acted decisively to solve the problem of deceptive spam, we can all take comfort in knowing that deception in political campaigns is still very much legal.

biography
Ray Everett-Church is chief privacy officer for the antispam technology and consulting firm ePrivacy Group and serves as counsel to the Coalition Against Unsolicited Commercial Email.