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Constitutional Law

: Meeting the Sin Laws

Spam

By C.S. Wiggins

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This week's issue of The New Yorker includes this article, entitled "Damn Spam." Written by Michael Spector, the article explores the federal government's attempt to rid -- or at least curb -- that most-annoying affliction suffered by e-mailers across the globe: spam. Mr. Spector notes some interesting facts:


Spam?s growth has been metastatic, both in raw numbers and as a percentage of all mail. In 2001, spam accounted for about five per cent of the traffic on the Internet; by 2004, that figure had risen to more than seventy per cent. This year, in some regions, it has edged above ninety per cent?more than a hundred billion unsolicited messages clogging the arterial passages of the world?s computer networks every day.
...

The original Spam (a contraction of ?spiced ham?) is made by the Hormel Corporation, which sent enough cans of it overseas during the Second World War to feed every G.I. In a celebrated 1970 Monty Python skit, a diner tries repeatedly and in vain to order a dish, any dish, without Spam. She is drowned out by a group of Vikings in horned helmets, who chant the word dozens of times??Spam! Spam! Spam! Spam! Spam! Spam! Spam! Spam!??eliminating any possibility of rational thought. The word was rapidly adopted by computer programmers as a verb meaning to flood a chat room or a bulletin board with so much data that it crashes.

Definitions vary, as does the line between spam and annoying but legal ads. (Like pornography, however, which has profited greatly from the ease and privacy of electronic junk mail, you know it when you see it.) Few companies could function without attempting to stop spam from invading their employees? in-boxes. The costs are not always easy to assess, but several studies have found that in the United States more than ten billion dollars is spent each year trying to contain spam. The success rate of such anti-spam efforts usually exceeds ninety-five per cent, but spam behaves on the Internet in much the same way that viruses do when they infect humans: it might take a million of them to attack an immune system before one gets through, but one is enough. The same is true of e-mail. The more spam that is blocked, the greater the volume spammers will need to send in order to make money. ?If you used to have to send fifty thousand pieces of spam to get a response, now you have to send a million,?? John Scarrow, the general manager of anti-spam technologies at Microsoft, told me. (Spammers usually need to send a million e-mails to get fifteen positive responses; for the average direct-mail campaign, the response rate is three thousand per million.)


I'm somewhat familiar with the Controlling the Assault of Non-Solicited Pornography and Marketing Act, which is referred to as the CAN-SPAM Act. As the article correctly states, this federal law (passed in 2003) requires people who send e-mail advertisements to offer recipients the opportunity to decline future messages. And the violations are stiff. Enforcement usually raises questions about preemption and free speech. Here are a couple of skirmishes: this one from the Fourth Circuit, and this one from the Fifth Circuit.

Even if you're not a Monty Python fan, you've gotta pick their spam over this stuff.

Full post as published by Meeting the Sin Laws on August 05, 2007 (boomark / email).

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