@Info.Policy: Can FTC really can spam?

Robert Gellman

If you have an e-mail address, you are likely a spam recipient. At the end of 2003, my spam count was 150 to 200 messages per day. That's about the time Congress passed the 2003 Controlling the Assault of Non-Solicited Pornography and Marketing Act. Today's question is whether Can-Spam is likely to be enforced.

The average spam recipient has no remedy under the new law. You can't file a lawsuit or class action because the Republicans who control Congress hate trial lawyers. There will be a criminal case now and then, but the Justice Department is busy with more pressing matters.

Otherwise, enforcement mostly falls to state attorneys general and to the Federal Trade Commission. We have already seen some aggressive moves against spammers by the states, and I expect more. What can we expect from the FTC?

My guess is not much. A few high-profile cases will be brought largely for the purpose of attracting publicity. But any actions by the commission are likely to have little effect on most spam.

Why do I think FTC enforcement won't work?

The same day the spam bill cleared Congress, FTC issued a report on deceptive weight-loss advertising. Despite what the commission called 'unprecedented' enforcement efforts, the advertising is still widespread. In other words, FTC failed to carry out its statutory responsibility to stop deceptive advertisers. It lamely asked publishers and broadcasters to reject the advertising.

If we look closely at other areas where FTC is supposed to protect consumers'such as credit repair and mail fraud'we are likely to find that the commission is not doing any better than with weight-loss advertising. It is a dilettante agency, flitting from one high-profile issue to another, but accomplishing little for consumers.

What can you do? Don't plan to remove your spam filters any time soon. Thankfully, my Internet provider filters out more than 99 percent of spam without capturing much regular mail.

What's interesting is that the so-called legitimate spammers'the direct marketers of the world'supported the federal bill because they think it will open e-mail boxes to their messages. They dream of being able to send advertising without paying for printing and postage.

But the same filters that capture the pill and porn spam will also capture advertising from regular businesses. Those who use filters will see neither the ads nor the newly required opt-out facility that must be included with commercial e-mail. The advertisers will receive few opt-outs and claim that people don't object to e-mail advertising. We may end up with more and more spam being killed by more and more filters.

The best you can hope for from the new law is that you may someday have a chance to serve on a jury in a criminal case against a spammer. The bad news is that the antispam law doesn't include a death penalty.

Robert Gellman is a Washington privacy and information policy consultant. E-mail him at rgellman@netacc.net.

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