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How Will Laws Against Spam Work?
By Gerry Patterson
The Australian Department of Communications IT and the Arts has unwisely decided to outlaw spam, and so far there do not seem to be many dissenting voices. Sentiment against spam is almost universal. Although I have also on numerous occasions voiced anti-spam sentiment, I consider that laws against spam will not work. Worst of all they may even be counter productive.
There ought to be a law against it ...
Ed: This article was published in September 2003, Since then another article entitled The Spam Tide Rises, published in January 2005, examines just how effective anti-spam legislation has been. The following article is presented here in its' entirety as originally published. Some of the references are dated. But by and large it has stood the test of time.
Despite the widespread hostility towards spam and the apparent support for anti-spam laws, legislation will not work. Not only will the laws fail to prevent spam, they will have many undesirable consequences, including a possible increase in criminal activities associated with spam and a wide-spread disrespect for the law. The following is some of the many reasons that will render anti-spam legislation unable to address the complex problem of spam.
- Spamming is not really a serious offence: Although the activity of spamming may be associated with many criminal activities, and is undoubtedly anti-social and discourteous, the practice itself is undeserving of the rage and indignation that is commonly directed towards it. The principal (and possibly only) argument for outlawing spam is economic. This argument correctly identifies that the cost of e-mail is borne largely by the recipient. Although a case can be made for penalising spammers within such narrow economic criteria, the activity by itself is a trivial misdemeanour which should not be compared with crimes such as fraud, theft, vandalism or assault. When spammers do engage in criminal activities (most often fraud), they can be prosecuted for such crimes using existing laws. There is no need for a special law against spamming.
- Spam can be prevented: Apart from user-education, the most
effective counter-measures are:
- Do not display e-mail addresses on The Internet in a format that can be easily parsed by robots. Rather than display mailto: tags, CGI scripts can gather e-mail from potential contacts via a website. This would have to be the single most effective counter-measure.
- Use block-lists as well as your own access db, and keep up to date with developments. It is difficult to forge the source IP address of e-mail. Known sources of spam can be rejected by the mail host.
- Lodge an incident report on spam that gets past the mailhub. A formal complaint to an upstream provider sometimes leads to the spammer's account being terminated. This will not stop a true professional, but it will slow him down. If the provider does nothing, then notify one of the public block lists.
- Anti-spam laws will be difficult or impossible to enforce: Although it is easy to identify a spammer's netblock and general locality, it can be difficult to discover his true identity. Before a spammer can be prosecuted however, he must be identified in real life (IRL). The questions arise: Who is going to carry out this investigation and identification? And more important, Who is going to pay for it? If the business sector is not willing to hire professional mail administrators to prevent spam from getting through the mail host, they will not bear the far greater cost of hiring professionals to investigate incidents of spam. Unless law-enforcement agencies pick up the tab, there will be no funding for spam investigations. The amount of effort required for such investigation would be orders of magnitude greater than that required to simply block spam at the mail host.
- It requires uniform international laws: The Internet is a
global network. Only uniform global legislation can combat spam. In view
of the fact that the world cannot agree on binding international laws
against War Crimes, Genocide, Torture, Chemical and Biological Warfare
(CBW), Nuclear Proliferation (to name a few), it would be remarkable
indeed if we obtained universal agreement on laws against spam.
International law is a gigantic tin of worms. Although there appears to be a general consensus that we need to have international laws on some important matters, there continues to be political and/or commercial impediments to obtaining universal endorsement of treaties and conventions about such matters. There are many excuses given for the failure to reach agreement. For example: the powers that be in the USA consider themselves above the need to ban research into CBW. The current administration cite the need to continue research into this form of warfare, despite the Geneva Convention. They say they need to do the research in order to protect themselves against a possible attack. Likewise, they claim that American soldiers only fight on the side of righteousness, and since they also consider the American legal system to be the best in the world, they contend that American military personnel must be exempt from any international laws concerning war crimes.
On the question of nuclear proliferation, it seems that those in the nuclear club are all in favour of NPT, whereas those wanting to get into the nuclear club are not in favour. Two nations (Pakistan and India) have definitely achieved nuclear status, by ignoring NPT and it is suspected that others may have secretly achieved nuclear status ... and so it goes.
Of course a brief discussion such as this could not go into the many complex reasons that such attempts at international law have failed. The point is that international laws are not working and, considering the views of the current US administration, they seem increasingly less likely to work. It would be a supreme irony if having failed to agree on matters of such gravity, we succeeded in framing international laws against spamming, an activity, which when compared to nuclear proliferation, war crimes, genocide and CBW seems about as serious as farting in lifts (i.e. offensive but not exactly life threatening).
In any case there seems little chance of such an international agreement about spam. Even in the FatherLand of spam, the United States, it seems law-makers are incapable of passing uniform legislation. In the USA the regulation of spam is the responsibility of individual states, and the legislation, where it exists, varies considerably from state to state. - The law will not deter spammers: Contrary to the assertions of the pro-legislation lobby, anti-spam laws will have little effect. This is because although a small number of amateurish or foolish spammers may be prosecuted, the majority of spammers will avoid prosecution. As a consequence they will consider themselves too clever and the authorities too slow and dim-witted to prosecute a case against them. Unfortunately the inevitable failure of the authorities to take effective action will only further inflate the undeserved high opinion that spammers already have about their own cleverness.
- Legislation may lead to an increase in criminal behaviour: Although spammers are often associated with criminal activities, at present not all of them do so. It is true however that spammers go to considerable lengths to disguise their identity because of the antipathy directed towards them. If spamming is deemed to be a criminal offence, spammers will strive even harder to conceal their identity and they may become even more likely to employ criminal means IRL (e.g. identity theft, credit card fraud etc) as well as electronic vandalism in order to conceal their true identity, and avoid prosecution. Furthermore, having crossed the line into criminal behaviour, a spammer may feel less constrained by the laws of the land, and willing to participate in criminal activities that have been, but till now have not always been, associated with spamming (e.g. fraud, trading in dangerous and illegal goods, child pornography etc). Legislation will not prevent spam, but it will drive the activity permanently underground, and make it an integral part of the growing black economy, ultimately becoming a valuable addition to the arsenal of the criminal underworld.
- Unenforceable laws engender disrespect for all laws: A law
which is constantly and flagrantly disobeyed brings disrepute to the
entire legal system, and can have the entirely undesirable consequence of
encouraging further lawlessness. It can even lend a buccaneer image
to the law-breakers. In times of economic instability, this could also
serve as a recruitment aid into the black economy. Unemployed workers can
see how easy it is to disregard the rule of law and if they have the
appropriate skills, become gainfully employed in the black economy. A
classic historical example of this was the attempted prohibition of
alcohol in the previous century. This was a fiasco of epic proportions,
which not only failed to prevent the consumption of alcohol but may have
encouraged it. Behaviour which may have previously been perceived as
tawdry was "spiced-up" by association with "colourful" criminal
characters. Criminal organisations flourished as a result of the trade and
new revenue streams. Many criminals had their reputations enhanced by the
outlaw image that participation in bootlegging lent them. Drinkers could
experience a vicarous thrill just by imbibing some of their product. As a
result, some obscure ethnic societies previously known only to European
emigrants became vast multi-national criminal empires. None of which would
have happened without the impetus of absurd and unenforceable laws in the
United States. These silly laws ultimately provided a huge cash injection
into the global black economy, and kick-started modern organised
crime.
And in the case of spam, which we are considering here, it will not be possible to sweep such a failure under the carpet. No amount of spin-doctoring or false statistics will hide the ineffectiveness of laws against spam. The dismal failure of any anti-spam legislation will be prominently displayed in billions of inboxes -- 24x7 -- 365 days per year. This will become possibly the world's largest ongoing negative marketing campaign for the incompetence and stupidity of law-makers and law-enforcement agencies. It is a challenge that most prudent law-makers should think carefully about before donning the gloves and stepping into the ring with an opponent that is fast, hard-hitting, quick-stepping, dancing and well-known for hitting below the belt.