Now that it's become obvious that the Can Spam Act is actually making the spam problem worse, it's time for Congress to admit its mistake and do the only thing it can do. Repeal the "Yes, You Can Spam Act" before the Internet chokes to death on the unsolicited commercial e-mail it encourages.
Earlier this week, the New York Times noted that since the Can Spam Act went into effect in January of 2004, spam has gone from an estimated 50 to 60 percent of all e-mail to as much as 80 percent. And many observers now agree with what some of us have been saying all along -- not only is Can Spam not the solution, it's part of the problem.
The fatal flaw of Can Spam of course is that it requires junk e-mail recipients to opt out from the spammer's mailing list. As I've pointed out innumerable times, this means the law actually encourages us all to click on links e-mailed to us by strangers, a very risky behavior in the era of spyware and phishing scams. So opting out isn't merely impractical - it's dangerous.
The result has been what I've called "Legal Spam" -- junk e-mail that, at least as far as the recipient can tell, meets the Can Spam Act's requirement for unsolicited commercial e-mail. Spammers who would otherwise be at risk of violating tougher state anti-spam laws -- which Can Spam preempts -- are therefore protected. Bulk e-mailers aren't even forced to label their junk messages with "ADV" to at least make filtering unwanted messages easier. And enforcement of Can Spam is left primarily to the FTC, which doesn't have the resources to go after more than a handful of offenders. It's small wonder then that the spamming business is booming.
But why not fix the Can Spam Act instead of repealing it? In theory, at least, it would certainly be possible to change the law to an opt-in approach like the anti-spam laws in a number of other countries. But I have my doubts that it is politically feasible. There are a lot of loopholes built into the Can Spam Act, and the lobbying interests that put them there - most notably the Direct Marketing Association - haven't gone away.
Besides, the fact is that even without the Can Spam Act, we have all the laws we need to go after the worst offenders. The zombie networks, the phishing scams, the Nigerian hoaxes, etc., all represent crimes that violate criminal laws here and around the world. If Congress really wants to do something to fight spam, it should come up with some more money for the law enforcement agencies to deal with such crimes. (For example, I'd suggest those funds earmarked for tracking down copyright infringers for the music and movie industries could be better spent on more serious Internet crimes.) But that's probably wishing for too much. At this point, though, surely it isn't too much to ask that Congress admit its mistake and repeal the Can Spam Act.
Read and post comments about this story here or write me at Foster@gripe2ed.com.
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