Quick FAQ
(An expanded version of our FAQ is here.)
Some Actual Questions Posed via "Comments@CAUCE.ORG":
- Isn't the bill censorhip... a violation of the First Amendment?
- What are you people... anti-business Communists?
- This is just more stupid and dangerous government regulation!
- Won't the spammers just go offshore?
- A civil case without criminal penalties... Who will ever bother to sue?
- You talk about Costs. What costs? My email is unlimited...
- Why can't you just hit <DELETE> and be done with it?
"Isn't the Smith Bill censorhip... a violation of the First Amendment?"
Not true. The Smith Bill doesn't outlaw commercial speech, it only says that if you want to advertise you have to pay the costs and not force those costs onto others. The junk fax law was challenged in court on First Amendment grounds and the court upheld the law because it is not censorship... it's about making the advertiser bear their own costs. The other bills make the recipients bear the costs.
When spammers try to hide their destructive and often illegal activities behind the First Amendment, it is helpful to remember the words of Federal Judge Stanley Sporkin in the case of Turner Broadcasting v. FCC:
"[They] have come to court not because their freedom of speech is seriously threatened but because their profits are; to dress up their complaints in First Amendment garb demeans the principles for which the First Amendment stands and the protections it was designed to afford."
The Smith Bill is hardly a total ban on unsolicited commercial email; UCE will be permitted under the Smith Bill, but only if junk emailers bear the minimal burden of making sure that their messages only go to people who have expressly agreed to bear the costs. In summary, we think one of the best analyses of this theme comes in a famous case about junk postal mail. In the Supreme Court's decision in Rowan v. U.S. Post Office, the court held:
"Nothing in the Constitution compels us to listen to or to view any unwanted communication, whatever its merit. . . We therefore categorically reject the argument that a vendor has the right under the Constitution or otherwise to send unwanted material into the home of another. . . We repeat, the right of a mailer stops at the outer boundary of every person's domain."
"What are you people... anti-business Communists?"
Far from being communists or anti-business, we believe that commercial ventures who can't survive without subsidies should go the way of the dodo. It is the junk emailers who can't make a profit without stealing from us all, making all recipients subsidize their operations. There's a long tradition in this country of making commercial enterprises bear the costs of what thay do to make money. For example, it would be far cheaper for chemical manufacturers to dump their waste into the rivers and lakes... however "externalities" (as the economists call it) are bad because they allow one person to profit at another's -- or everyone's -- expense. Economists have long known and understood that the marketplace is about efficiency, not propping up failed businesses. The death of unprofitable businesses is the essense of capitalism, the essence of the free market. So long as junk mailers can't pay their own way, we all must fight to make sure that we don't pay their way for them.
"This is just more stupid and dangerous government regulation!"
No. Unlike the blatently unconstitutional Communications Decency Act, which put the government in a position of policing the Net, our law empowers individuals to take control of their own mailbox again. Our legal system says that you can't sue someone unless you have a clearly established right to do so, and this law gives people that right. Unlike other efforts at "policing" the Net, this law doesn't create any bureaucracies or boards or committees to decide what's morally good or bad. Instead it clearly defines a deceptive and unfair business practice that is damaging and costly to consumers and gives them a legal right to take the perpetrators to court. The Smith Bill places enforcement in the hands of the consumer, not in the hands of any government agency.
Most of us involved in CAUCE are long-time "Net Activists" who are zealously protective of the anarchy of the Net, especially in the face of regulation by the government. However, it is helpful to remember that CAUCE is a group of ISP administrators and technical experts whos have realized that technical solutions are inadequate. Unlike some efforts at internet-related laws, this is being requested by those experts most familiar with the technology. That's what makes this law different: it is one being requested by the Net Community rather than something being imposed on the Net Community. We are also concerned about limiting our effort to only e-mail, and this bill is tailored to do that. This law won't harm legitimate Net commerce, but it will make advertisers accountable for their actions. It creates an incentive that's not there now -- a n incentive for commercial e-mailers to attract willing subscribers and leave unwilling recipients alone. And it places the enforcement mechanism in the hands of the consumer rather than a regulatory body.
"Won't the spammers just go offshore?"
It is true that US law can't effectively reach people who are operating completely outside the US; that's a problem with nearly all US law. However because the focus of the Smith Bill is not where the email came from but on whose behalf the spam was sent, the law will apply to the advertiser... who more often than not is US-based. If somebody's entire operation is completely offshore, there are few US laws that could be assured of getting them, no matter how broadly the law is written. Even if Congress prohibits email forgery or other techniques of that sort, those regulations wouldn't effectively reach outside the US. Given that Internet connectivity outside the US has problems with high cost, much stricter government control, unreliability of some overseas connections, and very narrow bandwidth, there's less potential that foreign ISPs will be overrun with spammers looking to relocate.
"A civil case without criminal penalties... Who will ever bother to sue?"
The benefit to this law is that because the offense and the damages are clearly stated in the statute, you can take this kind of a case to a Small Claims court -- for very little hassle and very low cost you can get a judgment. Then what? There are numerous collection agencies who have specialists in pursuing these judgments (they've been doing it for junk faxes for 10 years). You get a judgment for, say $500, and the collection agency might pay you $300 for the right to collect whatever they can.
The reality, of course, is that most people won't need to sue because the potential risk and cost to spammers will be felt even if only one one person is motivated to bring a case. If one case can result in even one law suit for upwards of $1500, it doesn't take many people to fight to make it no longer worthwhile to spam. And as one anti-spam activist's email signature line reads:
When the Smith Amendment passes,
My girlfriend will be very happy.
She's expecting me to buy her a 5 carat diamond ring
with the proceeds.
"You talk about Costs. What costs? My email is unlimited..."
The question of cost highlights the flawed assumptions by those who engage in junk email marketing, and those who defend it. It is not always apparent to the end user, much less the junk emailer, that there are many different places along the process of transmitting and delivering email where costs are incurred. In the Internet world, "cost" equals many different things besides money charged on a metered basis.
For example, for an Internet service provider, "cost" includes the load on the processor in their mail servers; "CPU time" is a precious commodity and processor performance is a critical issue for ISPs. When their CPUs are tied up processing spam, it creates a drag on all of the mail in that queue -- wanted and unwanted alike. This is also a problem with "filtering" schemes; filtering email consumes vast amounts of CPU time and is the primary reason most ISPs cannot implement it as a strategy for eliminating junk email.
ISPs purchase bandwidth -- their connection to the rest of the Internet -- based on their projected usage by their prospective user base. For most small to midsize ISPs, bandwidth costs are among one of the greatest portions of their budget and contributes to the reason why many ISPs have a tiny profit margin. Sans junk email, greater consumption of bandwidth would normally track with increased numbers of customers. However, when an outside entity (e.g., the junk emailer) begins to consume an ISP's bandwidth, the ISP has few choices: 1) let the paying customers cope with slower internet access, 2) eat the costs of increasing bandwidth, or 3) raise rates. In short, the recipients are still forced to bear costs that the advertiser has avoided.
"Cost" also grows in proportion to volume. Recent public comments by AOL are a useful point of reference: of the estimated 30 million email messages each day, about 30% on average was unsolicited commercial email. With volumes such as that, it's a tremendous burden shifted to the ISP to process and store that amount of data. AOL has a half-dozen full time staff dealing with junk mail-related problems. Other companies with dedicated "abuse" staff include, MCI, Sprint, AT&T, Hotmail, Erol's, Earthlink, CompuServe, Prodigy, Concentric, and many more. So the expenditures by companies to defend themselves from junk email and to keep their systems properly functioning amid the onslaught is not at all insubstantial... and the costs are passed on to you.
For more information about costs to ISPs, please refer to a recent article from InternetWeek.
"Why can't you just hit <DELETE> and be done with it?"
Unfortunately, pressing Delete may make the problem disappear from your mailbox. But by the time you get to press the key, the costs associated with that piece of junk email have already been extracted from your pocketbook. Hitting Delete is a little like hitting the "snooze" button on your alarm clock: you may have bought the appearance that all is well, but it only works for a few minutes... and the more you hit it, the deeper in trouble you are.