“I’m actually very impressed with what Muris and Swindle have been doing in the first
months of their tenure,” said Junkbusters’ Catlett. “The FTC has been mumbling aloud
since 1997 about their authority to prosecute spammers for fraudulent headers and
data. Under Pitofsky, nothing was done, so it’s very welcome to see some action even
five years later.”
But others lack Catlett’s faith in the FTC’s power to crack down on bulk e-mailers.
According to MAPS’ Mitchell, the FTC lacks the resources to prosecute even a fraction
of those who use fraudulent headers.
“The problem… is obvious,” according to Mitchell. “There is so much [spam with
bogus header information], and while the FTC can expend resources tracking down
and prosecuting a few mailers, it will do little-to-nothing to stem the flow.”
Professor Sorkin sees the FTC as completely irrelevant to the spam debate. “The FTC is
concerned with misrepresentation and deceptive practices,” he said. “That’s their
mandate, but it’s not the spam problem. They just happen to come into contact with
spam as they’re investigating fraud.”
But Catlett is not so quick to write off the commission’s role, which he admits to
seeing as a primarily symbolic one. He imagines the agency prosecuting a limited
number of high profile cases. The bulk of the problem, he says, could be solved with
very specific laws about accurate header information and return addresses, combined
with a private right of action for consumers and ISPs.
Catlett says, “I have said for years that a law giving individuals who are spammed the
right to sue spammers is essential to keeping spam down to a tolerable level.”
Industry Stands Quietly By?
The nation’s top digital marketers, meanwhile, have already entered the complex legal
debate surrounding spam. Many, such as the leadership of the Direct Marketing
Association (DMA), are eagerly trying to save the reputation of ethical marketing
online and if possible, to preempt the need for government regulation of the process.
As we have seen, however, efforts at self-regulation have thus far been fruitless. The
bad actors, after all, aren’t members of organizations like the DMA. And while the
DMA’s president and chief executive H. Robert Wientzen has come out strongly against
legislation, there are indications that he may be at odds with his constituency.
“Hopefully there’s going to end up being some real federal legislation,” says Rodney
Joffe, founder of Web hosting firm Genuity, president of CenterGate Research and a DMA
member.
Joffe is angry that Weintzen has consistently defended the right of marketers to send
unsolicited e-mail to Web users. He believes that the credibility of legitimate
marketers has been seriously harmed by the lack of a federal spam law. And he believes
that a large number of DMA members feel the same way.
“Basically, he’s tried to hold back the tide and protect that field for marketers,”
Joffe said. “The problem is that he ends up representing the attitude of the little
spammers all over America.”
“My membership fees, a good portion of them, go toward lobbying against legislation
that I support,” he continued. “It’s an old boys network.”
So what kind of law does Joffe want? “Some kind of opt-in,” he said. “There has to be
a process that lets a Web user say, ‘Hey, I want your information.’ It can’t be done
by sending an e-mail that says, ‘Hey, do you want my email?’ In 1994, when the first
spam occurred, we never even thought about issues of scale. Now we have to.”
It wasn’t possible to determine whether a majority of the DMA’s
5,000-plus members disagree with the organization’s public stance, but if Joffe’s
claim turns out to be even partly correct — and the DMA’s lobbying efforts change as
a result — then the chance that a federal law will pass in 2002 is that much greater.
Global Jurisdiction
If and when the U.S. passes laws aimed at stemming the flow of unsolicited e-mail,
there will remain the formidable challenge of blocking spam that originates beyond
international borders. Unfortunately, this is probably an issue for the more distant
future.
“What has to happen in the long term is for all countries to ban spam,” says
Junkbusters’ Jason Catlett. “This will happen in the same way that international
copyright treaties ban counterfeiting and copyright infringement.”
Until then, spam fighters will focus on trying to control the domestic situation.
Catlett insists that the largest part of the problem can be tackled in that manner.
“The vast majority of spam,” he said, “is still sent from the U.S. to the U.S.”
Editor’s note: Zachary Rodgers is associate editor of ChannelSeven.com, an internet.com site, where
this report first appeared.