Friday, March 10, 2006

Presentation by Heon: "You've Got Spam Mail."

You come home after one-week vacation in Orlando, during which you did not check your email, and when you check your email at home, you find that you’ve got 128 emails, but 90% of them are spam or junk emails. How do you feel? It is a reality, not an imaginary scenario at movies.

The Mail Abuse Prevention System (MAPS: http://www.mail-abuse.com/) defines "spam," IF: 1) the recipient's personal identity and context are irrelevant because the message is equally applicable to many other potential recipients; 2) the recipient has not verifiably granted deliberate, explicit, and still-revocable permission for it to be sent; AND 3) the transmission and reception of the message appears to the recipient to give a disproportionate benefit to the sender.

There are two email marketing methods – opt-in and opt-out. The “opt-in” system asks the consumers if they want to receive marketing materials before sending them. The “opt-out” system is the minimum acceptable standard, where the consumers have a viable way of discontinuing the reception of unwanted marketing emails. I think some spam mails do not have even the minimum standard of discontinuing the reception. I strongly support the opt-in system for the marketing or advertising emails, as I encourage the strict government regulations on spam mails.

Other than legal control on spam mails, individuals can also control the spam emails by filtering spam. An email user can customize his or her email account to block specified senders, or create general rules to filter certain emails. This method, however, uses the resources of the system, and sometimes filters out non-spam emails as well. Another type of filter employs the use of lists. This kind of filter works by automatically blocking any emails sent by a specific domain on a designated list, and list by MAPS, “Realtime Blackhole List,” is the most widely used. However, some people are against these lists because they are completely unregulated. It is possible that some ISP, who have unwittingly hosted a spammer, have had their entire network blocked, inconveniencing their innocent customers.

Another suggestion is to create an “e-stamp,” in a nominal amount per e-mail, and mail without the stamps would be blocked automatically. Innocent consumers may be a victim of e-stamp, and so e-stamps should be charged only to a sender who emails to a large number of recipients. E-stamp can reduce spam, if we think of the economics of spam. The response rate to unsolicited e-mail marketing is extremely low, but the costs of sending bulk emails are also negligible. Instead, the huge costs are shifted to businesses and consumers who use the internet, by upgrading storage space or using filtering software.

In 2003, Congress passed Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act). This act is primarily directed towards unsolicited commercial email sent through fraudulent means by illegitimate marketers. The act legalizes a class of spam that complies with certain requirements for truthfulness, denies a private right of action, and largely preempts state legislation related to spam.

I think CAN-SPAM Act adopts the minimum standard to reduce spam. While the CAN-SPAM Act restricts a minimum degree of spam, the Act is not enough to reduce spam. The act denies a private right of action under this act. The act preempts stronger state laws. Some states adopted more strict anti-spam regulation, like requiring labels on subject lines. The act also legalizes spam from legitimate marketers under opt-out system.

The common concerns regarding the constitutionality of state’s anti-spam laws are whether the laws violate the Commerce clause or the First Amendment right of free speech. The courts have held that the anti-spam statute met the requirement of the Commerce clause, because the state’s substantial legitimate interest in regulating spam against the burden on interstate commerce.

Spammers also challenged state anti-spam statutes under the First Amendment. However, privates actors, like ISP, may adopt whatever viable means they find to block spam without running afoul of the First Amendment, because private actors are not a government entity. In order for state actors to regulate speech, an important state interest must be articulated. One interest in regulating commercial speech is cost-shifting from the spammers to the consumers. The court also accepted that the government has interests in protecting the privacy of individuals in their homes and protecting consumers against abusive and fraudulent solicitation.

5 Comments:

Anonymous Anonymous said...

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8:42 AM  
Blogger Syed Ali said...

"One interest in regulating commercial speech is cost-shifting from the spammers to the consumers. The court also accepted that the government has interests in protecting the privacy of individuals in their homes and protecting consumers against abusive and fraudulent solicitation."

I am wondering what costs there are that need shifted. I do agree that spam emails are annoying, but I am not sure that I have incurred any costs because of them. What type of costs are you talking about? Is it just that extra storage space is needed by some? If so, is this cost high enough for the courts to take action?

I am also not sure how the government's interest in protecting privacy in the home can result in the regulation of spam. Is spam being sent to me a violation of my privacy? I know that the junk snail mail that I get is not considered such a violation.

10:21 AM  
Blogger duffee said...

Good job...here is the question I asked in class:

Aren't there concerns about enforcing anti-spam legislation? I don't know how effective the stronger anti-spam statutes have been in those states that had such statutes, but it seems to me that if there is no threat of effective punishment, then there is little likelihood that spammers will stop this conduct. How could the government set up a scheme that is enforceable?

2:09 PM  
Blogger Scott Walker said...

Heon- Are email servers used by all large institutions? Otherwise, there is the problem of larger companies and schools paying for the large email distributions.

2:19 PM  
Blogger Aaron said...

This is a quick question. Sometimes spam comes because you sign up for certain websites ... like Yahoo Personal Greetings. DO you invision some type of law someday removing these types of spam.

3:50 PM  

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