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Irrelevant victories in the war on spam

By: Scott Bradner

On the surface it might look like there has been some real legal progress against spam of late. But don’t be fooled, these victories, real as they may be for the people involved, they don't mean much to you & me.

First, on March 3rd, the Virginia Supreme Court upheld the conviction of Jeremy Jaynes for violating a Virginia anti-spam law. The court said that there was no First Amendment right under the US Constitution to send spam. Then, less than two weeks later, Robert Soloway pleaded guilty to a collection of mail fraud, spam and tax charges. The government press release said that he had "sold spamming software and spamming services impacting millions of computers." (http://www.usdoj.gov/usao/waw/press/2008/mar/soloway.html) Then, less than a week after that, the US Federal Trade Commission (FTC) announced that online advertising company ValueClick had agreed to pay $2.9 M to settle charges that the company sent spam with misleading subject lines that violated the US CAN SPAM Act. (See "Can: to be enabled by law" http://www.sobco.com/nww/2003/bradner-2003-12-08.html) More good news may be soon to come, trial is about to start in a case the federal government brought against Impulse Media Group -- also over spam.

All that sounds good -- I can't say that I'm sorry when spammers get slapped about by the law -- but is all too rare. The remarkably impotent CAN-SPAM Act was signed into law in December 2003. This Act is supposed to be enforced by the Federal Trade Commission. (See http://www.sobco.com/nww/2004/bradner-2004-04-26.html) To say that the FTC has been careful in its approach to enforcing this Act would be misleading - a better word would be" lethargic" or maybe "comatose." It took the FTC more than a year to even define some terms in the law. (See http://www.ftc.gov/opa/2005/01/primarypurp.shtm) Since then there have been a few prosecutions mixed in with the self-congratulatory press releases. (See, for example a 2005 report in which the FTC says the Act is working (www.ftc.gov/reports/canspam05/051220canspamrpt.pdf). As far as I can see the Act is not working in this universe although it might be working in some other universe the FTC is talking about.)

As far as I can tell, the FTC has brought a few dozen charges using the CAN-SPAM act during the same time that Microsoft has sued about 130 alleged spammers. Maybe the FTC should subcontract its enforcement efforts to an organization that actually seems to care.

Spammers spam because they can earn a lot of money. Jeremy Janes was estimated to have made $750K/month in mid 2003 and Robert Soloway admitted making $309,725 in gross revenue in 2005. Couple a lot of money with a very small chance that the feds will get on your tail and the choice is easy. Turn off your spam filter for a few hours to see the impact of this easy choice - if I do that spam makes up more than 98% of the email.

So FTC press releases aside, there does not seem to be any actual interest in Washington to even try to fix this problem - so do not read too much into the recent developments on the legal front

disclaimer: Like all organizations Harvard employees anti-spam tools to try to cut down on the flood but has not, as far as I know, issued an official position on the topic so the above vent is my own.