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August 21, 2003

Spam, glorious spam, spam spam spam

There's a debate at Reason about spam.

No, not the delicious drunk food that is so savory in a sandwich at 3:00 AM when you are wayyyy to drunk to cook anything tricky. But the unwanted email.

How do you deal with spam? A raft of government regulations? Ooooh, that's a bad idea. You start out trying to prevent starvation of a small segment of the population in 1932, you wind up in 2003 with a trillion dollars in social spending, a proposed new medicare benefit, and a permanent underclass that is typically overweight. So the government could probably control spam, but we might well turn our nimble, adaptive web into something resembling the Department of Motor Vehicles.

Our present technology isn't well suited to controlling spam, and the distributive technology of the web makes any centralized solution kind of silly. Nobody wants to pay for access to email services...

But what if there was a way to deal with spam without heavy handed federal intervention? What if we could just tweak existing laws a little bit and get a more or less private solution?

We can.

There is an age old common law solution that just might work to limit spam.

The doctrine of public or common easements might do the trick.

The ancient common law doctrine allows the public at large to pass through a private, or semi-private space, or even to use a space within the limits of fair or reasonable use.

A good example is a public easement for beach access. Where such an easement exists, anybody seeking to use the beach, within reason, can cross at a designated point to reach the beach. (A good album, by the way).

The easement isn't necessarily just for a thoroughfare. The beach itself may be privately owned, but in some places, a public easement to use the beach itself may be recognized. The hours of public use may be limited, and use may be restricted to reasonable, fair uses, such as sunbathing, swimming, surfing, frisbee, or maybe a cookout. But unlimited use is prohibited, and disrespect of the private property - attempting to stage an unpermitted rock concert on the property, for example - is also prohibited.

The doctrine of public easements is a bit vague, it varies from state to state, because it's a common law notion grounded on long held expectations, rather than on principles clearly delineated by the legislature. After all, the question of whether the public has always had access to a given beach is an intensely local and fact intensive question. Furthermore, many states don't even recognize public easements. But legislatures can and often do tweak property laws, so it wouldn't be hard to recognize a public easements doctrine applicable to cyberspace.

What makes me think the analogy works? Well, first, repeat after me: "Respect for property rights is the foundation of economic freedom."

Spam sucks up bandwidth, it eats up hard drive space, and it does so without asking 'mother may I.' Admittedly, the internet is a public place open to all manner of fair use - but then so is the village green, and you don't have a right to take posession of the whole thing to graze your cattle.

Moreover, spammers steal time. My time happens to be worth between $100 and $200 an hour, depending on how cleverly I can sell it. Who is willing to pay me for the 15 minutes I spent yesterday sifting through spam? I lost between $25 and $50, being forced to look at someone else's ads. Unlike snail mail, we don't have the opportunity to take a quick glimpse and chuck it out. If spam arrives at an address one uses for business, most all the spam has to be opened. Screening software doesn't work very well, and the spammers have gotten clever about titling their spams - so I'm now getting messages with titles like "re: your referral" and "financial details" that, when I open them, tell me that I can take some new herbal medicine to "grow a monster c***." To whom should I send my bill?

A more sophisticated view - one that Chicago Schoolers like Judge Bork and Milton Friedman might share - is that spammers, like free-range music "sharers" - are free riders, enjoying the benefits of others' labor in the marketplace, without having invested any significant capital or labor toward the production of the goods enjoyed. In the vernacular, we would call such a person "a thief." Even free market gurus Mike Epstein dislike free-riders...

Like the debate over music & video intellectual property, many spammers and intellectual property pirates stand in the Land of Libertaria to assert a one-sided, libertine view. "The music/video was published once, I should be allowed to make unlimited copies for me, and my friends." Likewise, "if you prohibit me from spamming, you violate my First Amendment rights to free speech.

This ignores the other side of the property/rights equation. Music, movies, and bandwidth are all forms of property. All three forms of property grant some type of fair use rights to all comers. When you buy a CD or DVD, you are generally allowed to burn a copy for personal use, to cite some of it in an academic work, or to show it to friends, non-commercially, in your home or workplace.

Likewise when you set up a server as a node on the internet. If you operate a server on a trunk, you expect that people will route traffic through you, in exchange for your right to route traffic through other servers in the web backbone. It's like a series of private toll roads - and the cost of travel is "you keep it open for me, and I'll keep my road open for you." As for your private email account -- well, you are like a cul-de-sac off the toll road. You expect some people will drive down your little side street to take a look-see, but when 40 semi-trailers start pulling down it and doing a three point turn every day, your expectations of private ownership have been violated.

The typical libertine libertarian argument against controlling spam is that First Amendment argument. It's a bogus argument, however.

It ain't free speech because I am forced to subsidize your speech. The argument that spam doesn't cost anything is being put to rest this week - there's so much SoBig email floating around the web that massive government and private systems are being clogged up and shut down. I know it's a virus, but it's a spam as well.

The public easement enforcement scheme would be pretty simple.

First of all, define what a spammer is, so that innocent large users are not implicated. I'd propose "any person who uses the internet to send unconsented, unsolicited mass emailings, of substantially the same materials, to over 10,000 email addresses."
- 10,000 is a pretty big number, but nothing compared to the hundreds of thousands spammers send.
- "substantially the same materials" could be defined as pitching the same product, referring to the same website or to the same series of web sites operated by a common business operator, looking to sell the same product.

Second, define what fair use is to protect the innocent - personal emailing, business solicitations where the recipient has consented to allow his or her email address to be used for such purposes.

Third, assign large statutory damages to a series of aggravating factors, each of which increases the automatically awarded damages when an offense is found. Something along these lines might work:

1. Any damages, plus a $100,000 fine for spamming.
2. An additional $100,000 fine if the spammer uses faked, jacked, stolen or defunct origination addresses, except where such origination address is lost through legitimate technical or business operations - such as the business closes, the server goes down, etc.
3. An additional $100,000 if the spammer's actual email address for "unsubscribe" purposes is not provided.
4. An additional $100,000 for failure to remove a person from the list used to generate the spam within 30 days, and if the spammer is not the person who generated the list of email addresses, then another $100,000 to be assessed against the person (or business obviously) who generated the list.
5. Finally, a jurisdictional element might be useful. Allow the suit of spammers to proceed in any physical jurisdiction where the spam email traveled. This is concordant with the basic standards of fair play and notions of justice -- if spamming is civil trespass to property, then the spam trespassed every step along the way, from spammer, to spamee.

I don't know if this would do the trick, but it seems to be a heck of a lot better than opening a new Department of Spamland Security, or just relying on the market to stay ahead of the spammers.

Comments, please?

Posted by Blackavar at August 21, 2003 11:05 AM | TrackBack
Comments
But is anyone really hurt by spam? People talk about how annoying it is - is it really more annoying than all that stuff you get in the mail? Now really, there's something the govt should regulate - junk mail. It probably sucks billions and billions of dollars out of the USPO just to carry it - money we know that the USPO never seems to have, hence the rate hike cycle. I get unwanted email all the time. I delete it. It's a matter of expending a few calories, calories that the scolds are telling me I get too many of anyway. Is it too much to ask people to do with spam what the do with unsolicited mail offers - throw them in the trash? Posted by: Roderick Coates at August 22, 2003 09:55 AM
You know, I used to feel that way. Then I finished school, and my time is worth $200 an hour. I spend 15 minutes deleting about 75 spams daily. Who is going to reimburse me the $50 I lose daily opening useless emails? It doesn't sound like much. There are 5 workdays in a week, rougly 20 in a month. That means there are 240 workdays in a year. 240 x $50 = $12,000 in lost billables. That's just me. I'd love to skip it, but I have to read the emails that arrive on my desktop - a lot of times my peers and clients communicate with me by email, so I have to open each and every one, and skim it. And the technological fixes definitely cannot keep up with the sophistication of the spammers - not yet anyhow. Yup, $12,000 in billables out the window, because some snake oil salesman wants to shill some mortgage viagra so I can refinance my bigger breasts right now with Carrot Ink. The other thing, an institutional cost, is how spam is getting to clog up bandwidth and storage space. SoBig, which in reality is just a big spam generator, has caused massive shutdowns all over the web. It sucks up bandwidth, which costs money; it slows down people who have legitimate uses - costing them money. The amount of spam enroute at any given time doubles every six months, according to experts I've read. (Hey, isn't that a corrolary of Moore's Law?) It doesn't take a genius to see that it's eating up wayyy too much space. So yeah, I'm pretty sure something has to be done. The problem is getting worse. Posted by: Blackavar at August 23, 2003 12:39 AM
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