Why CAN-SPAM Won’t Work

Nobody disputes that the U.S. needs a law to stop unsolicited commercial e-mail before 2004. Not even the spammers themselves.

While I’m glad our representatives finally got a law to the President’s desk, the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) law won’t do much good in stopping the onslaught.

The law, designed mainly to provide recipients a way to opt-out, pre-empts the anti-spam laws of 35 states. Many of these laws require spam to be opt-in, a crucial step to stopping one of the main sources of victim addresses – harvesting from the web and newsgroups. As of January 1st, however, all bets are off. Instead of empowering users, the law blocks individuals from suing the spammer, instead reserving the privilege for states and ISPs.

The opt-out nature of the law also gives “one free shot” to spammers, as reported by CAUCE (no permalink). The law is extremely lenient on “truthful spam” – spam that doesn’t misrepresent facts. This has the effect of legitimatizing the spam industry, an industry that has been characterized by many illegal acts in pursuit of its profits.

The primary problem with a law like the CAN-SPAM is that it ignores the fact that most spammers use tactics that are illegal now, today. Most spam, even from spammers working in the U.S., is bounced from country to country, rendering it virtually untraceable. Most spam uses subject lines designed specifically to evade anti-spam filters. If you tell a spammer to remove you from their mailing list, it gets you added to 50 more. All the passage of this would accomplish is ensuring that more spam will hit your inbox in 2004.

If my testimony isn’t enough, here’s some from Dr. Jason Catlett of Junkbusters Corporation, about a very similar bill Congress debated on in 2001.

Since the President has indicated that he will sign this, there is very little hope for a fix for the problems – for now. However, let me leave you with a word of warning – if the FTC decides to establish the Do-Not-Spam list, do not add your address. Doing so would be like hanging a neon sign on your inbox.