When Congress passed the Can-Spam Act in December 2003, legislators were undoubtedly hoping to replicate the slam-dunk success of the Do Not Call Registry. But spam is likely to prove harder to tame.
First, giving a spammer a list of verified e-mail addresses and telling him not to spam them is like giving a 3-year-old an ice cream cone and telling him not to lick it. To a typical spammer, a Do Not Spam list would be akin to the Holy Grail. The fact that it would be illegal to spam addresses on the list would be no deterrence. While the majority of telemarketers run legitimate businesses and are eager to stay on the right side of the law, Lois Greisman, associate director of the Division of Planning and Information in the Federal Trade Commission’s Bureau of Consumer Protection, says that between 50 percent and 80 percent of spam is fraudulent and thus already illegal.
Second, a large percentage of spammers send spam from outside the United States. That spam tends to originate from (or at least get routed through) servers in places that are very unfriendly to U.S. law enforcement. For instance, the FTC would have a tough time collecting a fine from a spammer operating in Uzbekistan.
Naturally, a lot of antispam vendors believe that they can help solve at least the first problem. Chicago-based Unspam, for example, would have the FTC use its one-way hashing technology to encrypt e-mail addresses on the Do Not Spam list. E-marketers would run their lists through the same software and any resulting hashes that matched the Do Not Spam list would have to be dropped from their lists. The company says that its software would be able to detect suspicious activity related to the verification of e-mail addresses against the Do Not Spam list.
The jurisdiction problem may be a tougher nut to crack. Although telemarketers who violate the Do Not Call list can be tracked down through their phone numbers, Greisman points out that it’s more expensive to find spammers. And the investment is likely to be for naught since spammers tend to hole up in parts of the world that are least likely to permit extradition. “One thing we cared about enormously with Do Not Call was that we have real enforcement teeth at the end of the day, and we do,” she says. “Spam is a whole lot more challenging.”
Whether that challenge can be met is a good question?and one that the FTC must address when it issues its Do Not Spam report to Congress this month.