No to Spam, No to Regulation
While junk E-mail is a serious problem, it's important not to play into the
hands of those whose goal is governmental regulation of the Internet. There
are people who believe that business as such is evil, and whose goal is not
to stop fraud and mailbox stuffing, but to keep business of the Net.
There are many who define the object of their opposition as "UCE," or
unsolicited commercial E-mail, and wish to outlaw it. The Smith Bill (HR
1748) specifically targets unsolicited E-mail advertisements, regardless of
quantity, and would place no restriction on bulk E-mail which has no
advertising content (e.g., religious tracts or political diatribes).

The backers of this view often hold that there is an exception in the First
Amendment to the U.S. Constitution, that "commercial speech" is not free
speech. In this regard they are no different from the backers of the
Communications Decency Act, who claimed that "dirty" speech is not entitled
to protection against the government. They often ridicule free speech by
putting the misspelling "free speach" into the fingers of its advocates.

Some of these people are even more blatantly statist, and a disturbing
number of these people are seeking to turn the anti-spam movement into a
wedge for the worst kinds of governmental abuses. It is not unusual to see
posts on net-abuse newsgroups advocating stormtrooper-like raids on
suspected spammers, or suggesting that spammers should be reported to the
IRS because they might not be reporting their income. Some of these people
take an ominous pleasure in calling themselves "Net Nazis."

These people have goals of their own to pursue. Some are so single-mindedly
anti-spam that they can't put the issue into context; they would rather live
in a police state than receive one piece of unsolicited E-mail. For others,
it's more likely that stopping spam is the excuse, and that a regimented
society (in which they expect to be the regimentors, of course) is their
goal. The effect is the same either way.

Any form of content regulation of E-mail is a violation of the rights of the
sender, and inconsistent with the principles of a free society. Moreover, it
opens the door for more regulation, such as the attempt to regulate
information on commodities trading (see the Institute for Justice page on
this subject).

A favorite argument of regulation advocates is that if restraints on E-mail
are implemented by civil rather than by criminal law, then such restraints
do not constitute regulation, because it is the recipient's choice to sue or
not; hence (they claim) bills implementing civil action merely provide
"individual control."

While it's embarrassing to think that such an argument has to be refuted,
it's given so often that its advocates may hope to give it credibility by
sheer repetition. It can be answered briefly. Action by a court is
governmental action. The fact that someone has to ask the government to act
does not change this. People will recognize this quickly enough in other
areas of life. If the Communications Decency Act were rewritten so that
people could be sued rather than prosecuted for "indecent" Web pages or
newsgroup posts, no one would claim that such a law wasn't governmental
censorship. Creating a legal setting in which people can be sued on the
basis of the content of their messages is content regulation; no amount of
evasion can change that fact.

The alternative to content regulation is not a wide-open field for spammers.
Rather, several approaches can be taken which are consistent with individual
rights; some are appropriate for private action, others involve government
within its limited proper sphere of protecting individual rights. The key to
any valid approach is the principle, "Freedom of the press belongs to those
who own one." No one has the right to appropriate other people's property
for his own use. No one is required to give a forum to others.

The following approaches are consistent with a pro-individual rights
response to junk E-mail:

1. Identification of the perpetrators. This is already being done to a
significant extent.
2. Refusal to accept E-mail from sites which tolerate or promote
unsolicited bulk mailings. End users and service providers should both be
actively involved in this. Some ISP's believe that this is the job only of
the end user; but blockage of such sites by service providers sends a
stronger message and saves users a great deal of effort. It is not
"censorship" to refuse to deliver mail from irresponsible senders; their
right to speak does not imply a right to have others accept their mail.
3. Aggressive enforcement of anti-junk-mail policies by service
providers. This is happening, and getting better in spite of the impatience
of many recipients. As the upstanding majority of ISP's kick them off their
systems, the bulk mailers will have to migrate to the few sites that allow
anything; and it will become easier to identify and wall off the
perpetrators.
4. Continued technological improvement in mail filtering. Many sites are
reluctant to let their users specify their own procmail filters, because of
the processing cost and security issues. procmail is, in any case, far too
complex for the average user. The creation of simpler and safer filtering
programs would help people to cut out unwanted mail.
5. Better policies and technology regarding mail forwarding. Most junk
mail is filtered through third-party relays to make it harder to trace. All
Internet sites which relay mail should have software which identifies the
source of the mail in the "Received" header. Many are choosing not to permit
relays of outside E-mail at all.
6. Civil and criminal action within the framework of existing law. There
are existing laws against fraud, which in themselves could cover a large
proportion of junk E-mail. Some major services have won lawsuits against
spammers who forged their domain names. Legal precedents establishing the
right to collect from a mailer who imposes extraordinary costs on a site
(e.g., by relaying thousands of messages through it) would help to stop much
of the rest.
Chipping away at the concept of freedom of speech will only undermine all
our freedoms. If there is an exception for "commercial speech," there might
as well be one for "dirty speech," "hate speech," or just plain unpopular
speech. Content regulation is neither necessary nor justified.

The Internet is a relative bastion of freedom in a regulated world; by
finding technological, user-based, and ISP-based solutions to junk mail
rather than begging Congress to take over, we can keep it both free and
usable.



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Addendum, October 20, 1999:
One proposal currently before Congress would create a national opt-out
registry; people signing up to the list would be able to take action against
anyone sending them unsolicited commercial mail. This is a bad idea for
several reasons:

a. It pressures people who don't want their mailboxes filled with spam --
that is to say, almost everyone who has an E-mail address -- to place their
addresses in a government-administered list. Governments almost invariably
abuse any significant collection of information that they are handed.
b. It defines the issue in terms of commercial mail, not bulk mail. I've
already covered the reasons why this is the wrong approach, and a threat to
free speech.
c. It creates an aura of legitimacy for spammers who target anyone who
isn't on the government's list.
It has been argued that a similar list exists for opting out of junk U.S.
mail, and that this has caused no problems; but the analogy fails. Paper
mail is self-limiting, since it costs the sender something for each
additional copy. Thus, there is no overwhelming pressure on people to get on
this list, and I suspect most people aren't even aware of it. (I wasn't,
until it was mentioned in a news article.) The existence of a national spam
opt-out list would place tremendous pressure on people to add their
addresses to it.

The proper role of legislation is to define and defend property rights and
punish fraud and theft. Placing the government in the role of national
E-mail administrator is not consistent with the principles of freedom.


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Also see Brad Templeton's essays on spam.


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Updated October 20, 1999
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