Silverpop - Does CAN-SPAM Really Matter?, Part 1
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Does CAN-SPAM Really Matter?, Part 1

Bill Nussey, Silverpop
by: Bill Nussey (@bnussey)
04 February 2005

As a daily and enthusiastic reader of The New York Times, I was disappointed to read their February 1 article on CAN-SPAM entitled, "Law Barring Junk E-Mail Allows a Flood Instead" (subscription required). The theme of the article was, as the title suggests, that enacting CAN-SPAM was worse than having no laws at all.

The article really missed the point on several fronts.

First, it suggests, through quotes from Spamhaus's Steve Linford, that not requiring upfront permission on commercial email is akin to legalizing spam outright. While Steve and I would agree that commercial email should have upfront permission (like the EU and most of Asia require), I don't see how this translates into endorsing spam.

Second, it references only one company, Postini, on their view that spam is getting worse and implies that CAN-SPAM is to blame. While I don't doubt that Postini may be seeing increases in spam, I was surprised the article didn't quote AOL. Most B2C email marketers will tell you that AOL is the largest single domain in their list. So, isn't it relevant that AOL announced that they've seen huge drops in both inbound spam and user complaints about spam? In fact, a recent letter from the head of AOL's anti-spam group spells out a completely different view on the state of spam - this article is a must-read if you're in the email business.

Third, the New York Times article can't seem to make up its mind on the source of the spam problem. Is the problem that CAN-SPAM is ineffective because it allows unsolicited mail? Or is the problem that spammers will recklessly ignore laws and, for example, take your opt-out request as a form of validating your email address for their lists? You really can't have it both ways - either spammers are law abiding but the law is wrong or spammers will ignore the law so what difference will any law make?

One element, however, I do agree with is that spamming is about economics. But rather than simply quote some 21 year old criminal spammer who claims there is a ton of money in spamming, let's look at what CAN-SPAM really does (assuming spammers will pay some attention to the law). CAN-SPAM forces them outside the US - this raises costs and complexity of doing business materially. CAN-SPAM also makes it illegal to harvest email lists from the web. As any email marketer will tell you, building the list is far more expensive than delivery.

So, CAN-SPAM takes a big chunk of profit away because lists are no longer free. And, based on every article I've read, it appears CAN-SPAM is now forcing many spammers to hire lawyers to keep themselves out of jail. So while a spammer may be able to make over a hundred thousand dollars a year as the article claims, what does it cost the spammer to make it? And, even if the hundred thousand dollars is pure profit, how many people will find it worth the cost of having to live on the run, constantly trying to evade the wrath of a few multi-billion dollar ISPs and their lawyers? Wouldn't it just be easier to take that $60K job as a technician or, even simpler yet, con old ladies out of their life savings and get away with a million dollars?

The fact is that CAN-SPAM won't stop spam any more than speed limits will prevent anyone from ever going faster than 55 mile per hour. However, legislation coupled with technology will continue to raise the cost of being a spammer. In the end, if we are lucky, only a few die-hard spammers will continue to pursue their trade and maybe, just maybe, our inboxes will start to get smaller again.




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