When the Federal Trade Commission held hearings on Internet privacy last June, I described spam as the "hangnail of electronic commerce." Four months later, after enduring, with millions of others, a commercial email deluge, I think spam has progressed from annoyance to plague.
"If I found out that you like horses, would you object if I sent you an email about saddles?" Al Mouyal, CEO of Electronic Direct Marketing, asked me at an off-the-record session on junk email Friday at the Center for Democracy and Technology in Washington, DC.
Mouyal explained that I could "opt out" - meaning that the email would contain instructions on how to stop the emails. He also assured me that all his direct-market emails are labeled as commercial advertisements. Unlike the fly-by-night, get-rich-quick scams assaulting my inbox every day, he said, his are legitimate ads.
Sounds like responsible marketing, right? Maybe. But unsolicited commercial email raises serious questions about privacy, time management, and business practices in the digital age.
As an online journalist, my email address is posted on a commercial Web site every day. Perhaps because I am so easy to find, I get 10 to 40 spams a week. Not only is the number growing, but more and more come with clever subject lines that suggest the mail might be from readers or sources or someone I know. Just before writing this, I got an email with the subject, "Nice day?" I opened it up to find: "Hope you're having a superly NICE one today, a better one tomorrow, and great ones every day after that." Nice sentiment, but the real intent was to offer to teach me how to send bulk email.
Teach a man to fish, and he might pollute the ocean.
Because I make my email address public, perhaps I have fewer defenses against spam than others. For instance, marketers could deduce my love for horses from legitimate sources, like my homepage, or from a story I wrote. But if that information were sold by my riding teacher, or if my websurfing activities revealed that I frequented horse-related Web sites, it crosses the line between publicly-held information and private matters. As for the less refined online marketing, it costs only about US$11 to buy a list of thousands of email addresses.
And, though I seek email from the public, I don't do it to widen my shopping opportunities, and certainly not to get rich quick.
Half of the people online collect their email at work or at school. The time spent reading and deleting spam is often on the clocks of businesses and universities. As email technology becomes more sophisticated, marketers will have the ability to send large video and audio files to augment their product pitch. This will only cost more time to read and delete spams on company or school time. And it will cost more money, especially in rural areas where the connection rates are much higher.
Privacy advocates point out that the more cost in time and money spent to read and delete spams, the more likely legislation restricting spam will be upheld in court. Efforts are already under way in Congress to curb spam, and the Senate plans to hold hearings on the issue later this fall.
One bill, the Electronic Mailbox Protection Act, sponsored by Senator Robert Torricelli (D-New Jersey), would outlaw fraudulent bulk emails like those making get-rich-quick pitches. The bill would ban sending email from a fictitious source and using technologies to prevent recipients from filtering the email. Repeated sending of email despite pleas from recipients to stop, distributing email addresses without prior notice, or registering domains for the purpose of sending unsolicited email would also be outlawed. Violators would face civil penalties of up to $5,000.
Torricelli's bill, supported by many privacy groups, is drafted narrowly enough to go after only bad actors. This is an excellent start, but it does not address the larger and more complex debate over legitimate unsolicited email. The answers to basic questions - how intrusive is unsolicited commercial email? What constitutes spam? - are ultimately subjective. I may decide I don't wish to receive a message about a saddle sale, but someone else might want that information.
Regulating unsolicited commercial email is an especially sticky issue because commercial speech is protected under the First Amendment. When the Supreme Court struck down central provisions of the Communications Decency Act in June, it placed the burden squarely on the shoulders of the recipients of information. The court found that the virtual town crier could say whatever he or she wanted in our virtual town square - the rest of us could cover our ears or leave the square. With that precedent, it may be difficult, as in the case of spam, to shift the burden from the recipient to the sender.
The answer, as we always say, may lie in technology - with fancy filters, digital signatures, and service providers trying to keep one step ahead of the spammers. Or it may lie in an "opt-in" plan in which people receive free email accounts in exchange for putting up with spam, or are compensated in some other way. But requiring people who cannot afford to pay for email to read ads seems a bit elitist. Legislation applying, at the minimum, Federal Trade Commission rules on fraud and unfair trade practices to fraudulent spammers seems a good first step.
But there is always a danger of a CDA-like scenario when regulating spam. All it takes before parent groups enter the fray is a child receiving one of the handful of spams I get each week that begins with "If you are under 18, do not read any further."
After hearing Mr. Mouyal's pitch, I told him that I would not mind receiving an email about saddles from him. But I've changed my mind. I'd like to opt out now.
