Spam, Legislation, and the First Amendment

This was my reply to email from Mick Dennis regarding my participation in the Great American Pink-Out.
In-reply-to: <> (
Subject: Re: Thanks and by the way...(RE:SB1618)
References: <>


You wrote:

1. How can you really define 'junk' without having law enforcement agencies applying the interpretation to individuals to whom may not have the original target of the legislation (Remember: the current laws against private encryption were the result of laws intended to protect military grade encryption during 1945 and were misplaced to 'whack' on guys like Phil Zimmerman;)

Even though I don't like the crypto export laws, it was entirely correct for the government to attempt to apply them to the export of PGP. PGP is, in fact, within the realm of military-grade cryptography. The laws are out of date, but it is up to Congress to fix that, or the courts to rule that the laws are unconstitutional. The executive branch does not have the authority to decide which laws it thinks are "appropriate" and only enforce those. (Of course, in actuality they do this all the time.)

What they did wrong in the Zimmerman case was to keep him under indictment for an extended period of time, without having any real evidence against him, and without pressing charges. They were deliberately and with malice harassing him.

Anyhow, we're way off the topic at hand.

I don't believe that legislation is the answer to spam. However, it looks like we're going to get some anyhow. The choice is between a terrible law and a law that isn't too bad.

Anti-spam legislation can't be based on content. It would never pass a First Amendment challenge. I don't even care about the content. I doesn't matter to me whether someone I don't know emails me an advertisment for a vacuum cleaner, or their vacation photos. The point is that they have wasted my time and money by sending me unsolicited email. If they only sent a few pieces of email to a few people, I wouldn't consider it a problem. If ten thousand people on the internet each sent unsolicited email to ten other randomly-selected people, I probably wouldn't even notice. But thousands of spammers are sending unsolicited email every day to millions of people.

The defining characteristic of spam isn't the content anyhow. It is that the same piece of email is sent unsolicited to thousands of people, and that the source of the email has been deliberately falsified, and that the spammer has (in >99% of cases) fraudulently used a third party's mail server to distribute the spam.

The First Amendment does not guarantee the right to falsely identify yourself.

The First Amendment guarantees you the right to free speech. It does not guarantee you the right to force other people to pay to get your speech. Under normal conditions, internet mail (SMTP) puts most of the costs of email on the recipient. This is a much different situation than postal mail.

Also, note that spammers almost always make unauthorized use of a third party's mail server to deliver the spam, rather than their own machine or even their ISP's machine. This activity is already a violation of Federal law, so we probably don't need a new law specificly about this. However, it is probably a useful concept in formulating a legal definition of spam.

Even for postal mail, where most of the costs are borne by the sender, the courts have allowed some legislated limitations on the exercise of free speech. For instance, advertisers are not allowed to send me postal mail if I register on an "opt-out" list. But spammers generally don't support such lists, and in cases where they give email addresses for "remove" requests, they often add the addresses they collect from such requests, rather than removing them.

2. Who will be responsible for enforcing the new laws? The same folks who are trying to push the Clipper initiative down our throats? How can we trust them to be responsible for enforcing junk mail laws appropriately when 'we' scream 'they' can't be trusted to use the Clipper chip responsibly?

Since when can the government be trusted to do anything in a responsible manner? But I don't see you railing against their enforcement of traffic laws. Where do you draw the line between the laws you trust the government to enforce, and those you don't? All laws are about rights of one kind or another, and typically protect the rights of one party by restricting the rights of another.

An argument that anti-spam laws are unenforceable would potentially hold much more weight that the argument that you don't like those who would be responsible for enforcement.

3. Any initiative to limit any form of communication on the Internet destroys the true 'freedom' offered by the Internet. The ability of anyone to communicate ideas to a vast majority without fear of government retribution. (And its just damn unconstitutional).

There have to be limits on First Amendment rights; otherwise you can use the First Amendment rights to trample on all of the other rights.

You have the right to buy radio and television spots advertising your product (or religion, or whatever). You can use billboards, bus stop benches, or many other commonly-accepted forums. But the First Amendment does not guarantee your right to force your message on people in any manner you prefer. You can't grab people walking down the street and force them to listen to you. In most cases, you can't even stand on the street corner with a megaphone yelling your speech.

Similarly, you do not have the right to distribute your speech on the Internet in any manner that you happen to find convenient. There are appropriate forums on the Internet for broadcast messages, including web pages, UseNet, and IRC.

Without some sort of controls on spam (but not necessarily legislation), the lop-sided economy of email will eventually result in your receiving a thousand pieces of spam (or more) for every email message you actually want. And the spammers will continually evolve new tricks to thwart any kind of filtering you try to use. It will render the email system completely useless to you. When this happens, will you still argue that the First Amendment guarantees a right to spam?

I respect your desire to affect a change, I simply question how deeply you've thought through your position.

I've actually thought it through quite a bit. I just haven't had time to document my position on the web. Very likely I will put this email thread on my web page.

IMHO, legislation about spam will simply push spamming offshore. A true solution to spamming requires economic and technical changes to the email system.

The DNS system now has experimental support for authentication. Once this is in place, it will be possible to eliminate most email with fraudulent machine identifiers in the "from:" headers. This won't authenticate message down to the user, but will at least make it possible to track down what machine was used to inject the spam into the internet.

Note that I am not suggesting that the government mandate the use of authentication. This is something that individual sites can voluntarily choose to use or ignore. However, I am free to reject unauthenticated messages. By analogy, I could refuse to accept mail from the post office that was not postmarked.

A bigger step is to integrate micropayment systems with email. Historically there has been a minimum cost of an electronic transaction somewhere between about 10 and 50 cents. But several universities have built prototypes of micropayment systems that can reduce the transaction cost to under one cent. Eventually, I'd like to see this technology made available for use in the email system.

For example, I could specify that I am willing to accept email addresses on a list of my friends and business associates free of charge. However, I could charge anyone else 20 cents to send me email. If I received unsolicited email that I actually found worthwhile (such as your email which I am currently responding to), I would refund the 20 cents. For spam, I would simply throw away the email and keep the 20 cents.

I'm not sure that 20 cents is the correct amount; I've just picked it arbitrarily. Various people would choose various amounts, and would undoubtedly fine tune them over time.

You would probably configure your mail software with a default value of how much you're willing to pay to send a piece of email, and the mailer would tell you if it was inadequate for a recipient and offer the choice of meeting the recipient's "postage" requirement.

I don't know whether you would have been willing to pay 20 cents to send me your email, but as I consider it I've spent much more than 20 cents worth of my time composing this reply, so I wouldn't have to think twice about whether I'm willing to pay that much to send it to you.

Eric Smith

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Last updated June 14, 1998

Copyright 1998 Eric Smith

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