Monday 31 October 2005

Jury still out on CAN-SPAM

This fine chap, Dana Blankenhorn says The CAN-SPAM Act enables spam. Come again, Mr. B?
It legalized specific forms of spam, it overturned stiffer state laws, and it has gone unenforced. The primary enforcement of this "law" has come from private parties. Microsoft, which urged the act's passage, has been the most aggressive ... The likelihood of this being effective in stopping spam is nil ... Shaming corporations into policing their distribution channels and re-sellers would get rid of another hunk. [more]
I think Dana goes too far. This open letter says why...

1. CAN-SPAM sets a good minimum behaviour bar

Few laws please all the people all the time, but CAN-SPAM does bring some useful tools to the spam fighting table, including making the following illegal:
  • harvesting
  • forging headers
  • misleading subjects
  • contracting with spammers (and ignorance is no defense)
It also enables law enforcement to "follow the money" so offshore spammers and those who contract with them aren't safe.

2. Legitimate, permission marketing is not spam

I simply can't agree that "the CAN-SPAM act has done more to enable spam than any other act by anyone." It did not legalize any form of spam that I recognize. I can't understand how you can feel like that, unless you are of the opinion that any form of permission direct marketing is bad. True, it gives no remedy to those who have inadvertently given permission to resell their email address to 3rd parties, which has been better addressed here in the European Union.

3. Civil enforcement and state pre-emption

As to private or civil actions, that's a good thing in a capitalist society. These are organizations that are more motivated to go after spammers than Big Government.

I don't agree that CAN-SPAM has "gone unenforced." All the high profile actions to date have been against the state laws (now largely pre-empted). There are several CAN-SPAM actions in the pipeline right now.

Gathering evidence, finding spammers, and prosecuting them takes time. If you'll pardon the pun, the jury's still out on CAN-SPAM. I'm much more hopeful than you that it and other laws will significantly dissuade spammers.

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