Tags: law, politics, spam
First off, I am totally against this so-called US “anti-Spam legislation.”
This stance may piss off quite a few would-be Mark Steel fans out there, but before you make up your mind that I’m a complete ass, please read the reasoning behind why I’m against it.
I’ve been thinking about the issue of “Spam” quite a lot after writing this page on the 30th, and I’ve had a bit of a change of heart regarding the issue of New Jersey Rep. Christopher Smith’s H.R. 1748, the so-called “Netizens Protection Act of 1997.” Without linking to the Bill itself, and to the sites supporting it, there is no way for me to objectively tell you why I am against this legislation.
As well, I decided to change this page entirely. Yes, I admit, it was a bit too inflammatory. Those of you who responded nicely about the issue are thanked, beforehand.
And after reading your reading your letters, now I wish to rebuff a few arguments. You see, I’ve read your reasoning, and it still doesn’t mean much in the grand scheme of things. This proposed law will make some changes, but not in the manner that most of you think. A lot of you who responded were not looking at the “Big Picture,” so here’s a bit of it for you.
I am in no way claiming that this is the entire “Big Picture,” but it’s assuredly a lot larger than what most of you bothered to think about. I think I’ve addressed every issue that was brought up. If I missed something, e-mail me again. Be nice about it and I’ll cover it, too.
One of my core political beliefs stems from reading way too much of the works of certain “founding fathers of America” like Thomas Jefferson and Benjamin Franklin. You see, I was a history buff as a child. I admit that the older I get, the more I forget. But I do remember that all of them stuck to a single idea. I think Henry David Thoreau stated it most eloquently in his paper, “Civil Disobedience.”
“That government is best which governs least.”
The United States Code Title 47, Section 227 is an Amendment to the Communications Act of 1934, and looking at the proposed law, it doesn’t seem like such a bad idea. However, thanks to the number of Lawyers in D.C. posing as Elected Officials, things have to be spelled out specifically, or else they’ll leave, as they say, a loophole by which a violator can prevent him or herself from being prosecuted.
The unfortunate fact of the matter is, when you spell things out explicitly in a law, you leave more loopholes for “extenuating circumstances.” These days, people are much less concerned with the “spirit of the law” and much more concerned with the “letter of the law.” Proof of this is in the Clinton/Gore campaign scandal, and the bipartisan agreement that Tennessee Senator Fred Thompson’s council give up the fight. It doesn’t make Clinton innocent, but that’s another story altogether…
The enforceability of H.R. 1748 is in question for several reasons. A lot of you have complained about Usenet messages in our correspondence, but let me be the first to inform you that this law does not, in any way, shape, form or fashion, address anything with regards to Usenet and newsgroups. It only addresses the issue of Unsolicited Commercial E-mail.
“Our own stats indicate that almost 80% of Usenet and 20% of email is nothing but Spam. Obviously this is a major drain not only on our infrastructure but everyone else’s as well. It must stop…”
– Ed Kelley, AT&T WorldNet Service Customer Care, Forums Manager
That being said may change a lot of your minds by itself. If not, keep reading. Oh yes, there’s more. Lots more.
One of the largest problems on the Internet is that it’s often hard to tell where a Spammer is from and to whom he or she is sending these messages, regardless of whether or not Section 227(d)(1)(C) is amended as proposed. Logic would hold that since this will become of issue only within the United States, the Bill cannot address the problem of International Spam.
You may think that’s all fine and good, that the majority of Spam does come from inside the United States. But supposing this Bill does become Law, there is nothing to stop an American from putting a machine at a remote location anywhere in the world, and running all Spam and business through that country. The violator can still be a silent partner, still reaping the profits of his labours.
Many people say “Oh, no, that kind of thing is too costly for most Americans.” They are incorrect in that assumption. All they have to do is build a simple machine, ship it somewhere in the world for around $60 US, and put it on the subnet of a willing Internet provider. The average cost for this type of venture is around $200 US, not including business registration by their “partner,” of course. Giving the provider a percentage of the profits reaped by this “business,” the need for business registration and paperwork can be overlooked entirely.
Discarding that, no company in the United States is barred from using any “advertising company” they wish. This proposed law only affects the spammer, and not the company they’re “marketing for.” Nothing stops a would-be business owner, who wishes to market his company in the United States, from going to a Spammer in some other country and having them send these “unsolicited advertisements.” This section of the proposed law states that the “identity of the business, other entity, or individual sending the message” and their respective contact information must be listed “at the beginning” of the “unsolicited advertisement.” This does not, however, disqualify the foreign entity from promoting anyone they wish. The promoted company will be held without guilt, as the foreign Spammer, being a marketing company, was actually responsible for the Spam. And to make matters worse, not only can they not be prosecuted because they are a foreign entity, they complied explicitly with the proposed Law.
Bad loophole, isn’t it?
Thanks to the “letter of the law,” the wording of Section 227(b)(1)(D) creates a problem in itself, and I can think of no way to rectify it. As Internet Providers gain more and more users and the domain name registration databases grow larger and larger, a simple typographical error on the part of an “advertiser” will not necessarily be returned as undeliverable – it’s likely to actually go *to* someone.
As far as adding “knowingly” to the first line (“…to knowingly send…”), that seems a good idea, but as the violator will most assuredly say “I didn’t know” in his defence, he will be found innocent of “knowingly” sending the Spam except my a massive preponderance of evidence.
Regarding the current U.S.C. Title 47, Section 227 — it’s quite tough for an individual or company to find anyone to take action against a violator. The burden of enforcement for these laws falls under the umbrella of the FCC. Your liaison used to be the Public Service Commissions in your respective states, however, many states are doing away with them. Even if this new Bill becomes Law, who will you call to report the incident?
And even if you do find someone to take your claim and begin to help you get your damages, it’s impossible to *force* anyone to *pay* the amount of the rendered judgement. Many people will say things about “Oh, well, having a default of several thousand dollars on their credit report won’t look too good!” You’d probably be amazed to know how many of your elected officials have filed bankruptcy. I guess proponents of this line of thinking aren’t aware of the current laws regarding Bankruptcy, which can effectively erase any sort of “bad marks” on their credit except for the bankruptcy declaration itself. There are plenty of institutions out there to loan money to recent bankruptcy filers. So what’s that going to hurt?
People just don’t think about what laws cost. There’s all that time that it’s just a Bill, being passed about amongst elected officials, taking up time and taxpayer money. And then when it’s passed, there is additional time and effort spent writing up informational and educational materials for those who are planning to enforce the law. Then additional government funding must go to the enforcement groups responsible for upholding the law. And it’s never enough… They always need more.
And then there’s the already overcrowded court system (not to mention the jail system). Think of all the petty lawsuits this bill will create. Think of how much wasted time and money will go to that. Think about how much each court member has to be paid to try the case. You go to court, you’re probably going to be taking up the time of at least twenty people. Figure twenty people at an average of about $9 US an hour. Add up each employee who has anything to do with this case, and the time it will take each one of them, singularly to do their job. Figure around five hundred hours spent on each case. Multiply your hours times your average rate. Now think of this from a nationwide standpoint. Use a conservative figure, like maybe one hundred petty cases per month. There are twelve months in a year. The sum to your American court system, just for the small, petty lawsuits… Only $5,400,000 US.
And that’s a very conservative figure. Americans, as we have to admit, are litigation crazy. I would venture to say that this conservative estimate of $5,400,000 US will more like be $54 Million US in the first six months of enforcing the law.
And how much of that money does the court get back? Just the sum of their court costs and paperwork fees, which never amounts to enough to support them.
So, now… What if HR 1748’s amendments *are* passed … Will the FCC hold the burden of responsibility for this law, or will a new Enforcement body be created? Will the costs of enforcement be offset by taxing your Internet usage, or will they simply raise your US Federal taxes more?
Do you complain about your taxes? Do you support this bill?
If you answered “yes” to both questions, I can’t help but wonder what logic brought you there.
Especially if, after reading this article and Bill in question, you are still under the mistaken impression that UCE will be “illegal.” It isn’t. This Bill only gives you the “right” to sue a spammer, which is ridiculous at best. At last check of the US Civil Law System, you can sue anyone for any reason at any given time you wish in a Civil Court, right?
I have been using the Internet for many years now, and feel that this type of Invasion into what is largely a private sector, International body is unwarranted. I have no quarrel that unwanted e-mail and Usenet messages are a problem — I hate them, as well. But this a problem which can be taken care of in the Private sector without government intervention.
Proof of this is in Aegis.net’s disconnection of one CyberPromotions, Inc. Since CyberPromo’s denial of service, as well as quantcomm.com and a few others (which have brought up legal issues regarding contract violations), the amount of Spam in my mailbox has decreased astoundingly. Before these denials of service, I was getting a solid ten messages a day of e-mail Spam. Now I get two or three a week.
“Spamming is the scourge of electronic-mail and newsgroups on the Internet. It can seriously interfere with the operation of public services, to say nothing of the effect it may have on any individual’s e-mail mail system … Spammers are, in effect, taking resources away from users and service suppliers without compensation and without authorization.”
— Vint Cerf, Senior Vice President, MCI
If more companies were willing to use their right to enforce Terms of Service Agreements and Acceptable Use Policies, and to refuse service to these companies and individuals responsible for Spam, the problem would simply not need to be addressed by any Government.
One of the other, similarly annoying things about the supporters of this bill is some of the supporters, themselves. Many of them showed so much defiance last time an Internet-related Bill came up. Remember all those pages, white on black, bearing the Blue Ribbon of the EFF? Remember all those people saying “Keep your laws off my Internet!” over and over, and having candlelight vigils to the Death of Free Speech on the Internet when the Communications Decency Act was initially passed? Why on Earth are they now running back to the US Government for help about spam, when they spoke out so fervently against the intrusion before?
Not all Spam is for-profit — much is passed around from the same well-meaning idiots trying to promote a cause. That being that, I can’t help but wonder if some peoples’ idea of Free Speech and Expression is strictly limited to anything that doesn’t annoy them. If that’s the case, they should be ashamed of themselves.