Spam Worsening after CAN-SPAM Legislation

Unsolicited commercial email, usually referred to as "spam", is a growing problem for people and organizations using the Internet to communicate. A study conducted by Stanford University in December 2004, documented how the average Internet user must spend approximately 10 working days per year just dealing with spam. The cost to businesses alone, in 2005, is estimated to be $17 billion in the U.S., and $50 billion worldwide. These costs are incurred primarily due to lost productivity and computer network upkeep, to say nothing of worker frustration, security problems, and spoiled email usage by Internet users at home.

The U.S. federal government's response to the problem so far has been to wait many years and then pass the CAN-SPAM Act, which took effect in January 2004. Since then, spam has gone from making up 50 to 60 percent of all email, to now reaching a staggering 80 percent. Some fear the problem will eventually make email unusable.

Critics of the government's legislation complain that this exacerbation was to be expected, given that the law may have prohibited the use of fake return addresses, among other restrictions, but it provided bulk advertisers with the government-sanctioned ability to send out any spam as long as they follow the rules. In fact, the legislation made it legal for spam mailers to continue to place the burden upon the recipients of the unwanted messages, who must manually opt out of each individual mailing. This is unlike the approach taken by Europe and Australia, where bulk emails can only be sent to people who have opted in, by providing explicit authorization to receive such messages.

In addition, if and when an American citizen tries to abide by the intended procedures of the CAN-SPAM Act, and replies to a spam message asking to be removed from the spammer's mailing list, then this simply informs the spammer that that particular address (which they purchased or harvested off the Internet), is legitimate, with a live human on the other end. This of course only encourages them to continue abusing the address and selling it to other spammers.

Defenders of the U.S. legislation counter that one single law cannot stem the rising tide of spam, and that the law is making possible lawsuits against bulk mailers — lawsuits such as those pursued by Microsoft, Yahoo, and AOL. Critics of the CAN-SPAM Act point out, in response, that the lawsuits appear to have done little or nothing to reduce the burden of spam upon the Internet. Even Senator Conrad Burns (a Republican representing Montana), the chief sponsor of the bill, admits that the government agency responsible for enforcing the measure, the FTC, might need some nudging.

An additional weakness in the legislation is that prosecutors must demonstrate that the merchants involved knew that their products and services were being advertised via illegal spam. Sadly, there is yet to be a single real test case of that happening.