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Most of us are fed up enough with spam to say, "There ought to be a law." But a libertarian argues against new congressional proposals to curtail unwanted e-mail.

Published June 11, 1997 7:00PM (EDT)

WASHINGTON -- for the first time, the campaign against spam -- those dreaded waves of unsolicited e-mail that clog mail servers and cost you plenty waiting for the unwanted downloads -- has reached the U.S. Congress. Two bills now wending their way through the House and Senate could spell the end of unwanted junk e-mail for consumers.

The House version, introduced by Rep. Chris Smith, R-N.J., has the support of Internet service providers, some of whom say they have been crippled by spam for hours or days at a time. Titled "The Netizens Protection Act," it would prohibit spam outright unless the recipient already has commercial relations with the sender or has asked to be placed on the sender's mailing list. Violators could be sued for actual damages or fined $500 per violation. Meanwhile, Sen. Frank Murkowski, R-Alaska, has introduced a less severe bill that would require spammers to label their e-mail as advertisements so Internet service providers and customers can use filters to screen them out. Murkowski's bill would also require spammers to supply truthful return addresses on their e-mail and to remove recipients from mailing lists within 48 hours upon request.

Defending spam is about as popular as defending pedophilia. But there are those who have principled objections to any kind of legislation limiting its free flow. Salon spoke to one of them -- Solveig Berstein, associate director of telecommunications and technology studies at the libertarian Cato Institute in Washington, D.C.

Why does the proposed anti-spam legislation make you uncomfortable?

My concern is that it's not clear to me that spam is, per se, wrong, even though it might cause the problem of clogging certain Internet service providers. So I'm reluctant to go to a statutory solution that bans it. Besides, there is already a pretty effective common law solution open to ISPs -- an ordinary lawsuit for trespassing after they've given the spammer notice that they're causing problems and to stay off their system. It's not a perfect solution because this is a new phenomenon and many spammers still haven't gotten the message that what they're doing might raise trespass concerns.

But I think that's changing rather quickly. From what I understand, Sanford Wallace, the ultimate Internet spammer, is under a number of injunctions from different Internet service providers and may have been effectively shut down. One of them, I think it was CompuServe, said essentially, "OK, we've had it with this junk. These are our servers, and if you send us any more of this stuff, you'll be trespassing. You'll be using our property without our permission." And they were actually successful in their lawsuit.

Do these proposed laws raise free speech issues for you?

Absolutely. I'm aware that the Supreme Court has given commercial speech somewhat less protection than noncommercial speech. But in my view, that's not consistent with the original intent of the First Amendment. At the time that it was drafted, the framers of the Constitution did not seem to distinguish between the two. So I think the free speech issues raised by a general ban on spam are pretty serious.

How do you feel about the proposals to automatically filter spam?

One problem with that is, in order for the filter to screen out unwanted e-mail, it first has to download it. So it's still going to take the time and the money to download it. Another problem is that many people want to receive some unsolicited e-mail from strangers. I have heard of a couple of solutions: One would filter out e-mails that have been sent to more than a certain number of people; that would allow you to get e-mails that are sent to you individually by strangers, and e-mails less likely to be spam and more likely to be business communications. Another solution is to have the ISPs charge to send commercial bulk e-mail. That might be a better solution because at least the ISPs are getting some kind of compensation for all the clogging. But I suspect it's still going to annoy the hell out of a lot of end users.

So what can be done for the spammed users?

What Internet users object to is the time and money they have to spend sorting through all this spam when they're downloading. On one hand, I'm kind of sympathetic to that. But on the other hand, individuals get a lot of e-mail they don't want, and only some of it is spam. So I'm not quite sure why they feel just because they don't want spam, they shouldn't have to pay for it, while they agree to pay for the other things they don't want. There's an inconsistency there. The problem isn't spam per se; it's the way e-mail services are priced. If you had a system under which people had to pay to send e-mail instead of just receiving it, you probably would not get spam, or at least not as much. It's possible that over time, a different way of pricing Internet services might control the problem.

What you're essentially suggesting is a form of postage.

Yes, and that seems shocking to many people because that isn't the way the service has evolved. But there's no inherent reason why e-mail service could not be priced that way, as opposed to the way it's priced now. The current system came about largely as a result of the way telephone access to local networks is regulated. But there's no reason why the current pricing policy should be written in stone. And there's no reason to think that the postage would be very much.

Rep. Smith says his bill is a natural extension of the Telephone Consumer Protection Act of 1991, which banned unsolicited junk faxes. He also points to the 1995 decision by the 9th (U.S.) Circuit Court, which ruled there is a substantial government interest in protecting consumers from having to bear the costs of third-party advertising. In that decision, the court also ruled that advertisers have no right to turn consumers into a captive audience that is incapable of declining to receive a message. What's wrong with that?

I think there are better ways to solve the problem. In spite of what the 9th Circuit decided, I don't think it's proper for the government to ban any kind of speech. The other concern I have is that we're really jumping in here before technical solutions and more imaginative pricing schemes have been fully explored. There are all kinds of issues coming up involving the Internet, and I'm worried that the statutory solutions are getting ahead of knowledge about what the problems really are.

How about the provision in Sen. Murkowski's bill, which would require spam senders to truthfully identify themselves?

There are some pretty strong arguments in favor of this. In order to prevent angry recipients from retaliating against them, a lot of spammers have taken steps to conceal their identities. Still, I'm not sure that anonymous e-mail is always a bad thing and I'm very nervous about outlawing it. Let's say a person is advertising information about abortion, and they're afraid that if they don't do so anonymously, they're going to be targeted by pro-life political groups or even threatened. I'm uncomfortable with a law that says these people can't protect themselves by concealing their identity in some way.

Is there a way to draw a distinction between commercial advertising and the more ideological or political advertising you're describing?

I think it's really impossible. Say the information about abortion is being sold by a publisher. Then, it's commercial because it's being sold. So it's really difficult to draw those lines.

Murkowski's bill would also require spammers to label their messages as advertisements so ISPs could use filters to screen them out. In addition, it would require spammers to remove recipients from mailing lists within 48 hours upon request and obligate ISPs to deny service to spammers who do not comply with the law.

I see some troubled waters ahead there. Often, it's very difficult for ISPs to block this stuff unless they go to the trouble of filing a lawsuit and getting injunctions. As a technical matter, it's really hard for them to do that. As a matter of general principle, I don't like the labeling requirements either. That can create an entirely new legal quagmire -- what if it's labeled incorrectly? Can you imagine the squabbling over that one?

How effective is spam as an advertising tool?

Apparently, it's pretty effective in getting a response from people. People are actually using spam to buy products. So on one hand, you have a community of people who object to it vociferously and sometimes even send spammers death threats. On the other hand, you also have people who are using it.

And there's another thing that should be mentioned here: Most of the spam that I've received has not been from major, established companies. I wonder to what extent most spam comes from small businesses. If you clamp down on spam, what will happen to small business? Will the little guy take the biggest hit from a ban on spam?

You suspect that these bills, both authored by Republicans, favor those big businesses that can sell things on their Web sites?

Exactly. They'll be the first up in a search engine for something. I guess I'm just very suspicious any time the legislature starts messing around with the Internet.

By Jonathan Broder

Jonathan Broder is Salon's Washington correspondent.

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