Frequently asked questions about spam

Q. Isn't spam protected by national Free Speech laws?
No. Free speech guarantees you the right to say what you want, within reason; it does not guarantee you a platform to make yourself heard in. My daily newspaper will take any commercial advertisement, subject to two constraints: (a) it must fit within their advertising guidelines, and (b) the advertiser must pay for the costs of distribution. Spam fails on both of these counts.
Furthermore, different countries have different free speech laws. What may be legal in one country may be entirely unlawful elsewhere. Even in the U.S., where there are strong explicit free speech protections, the Supreme Court has upheld many restrictions on speech, far beyond the stereotypical example of shouting "Fire!" in a crowded theater.
There have been no serious challenges to the U.S. junk FAX law, which restricts the ability of advertisers to send unsolicited messages to FAX machines, on the ground that the cost is borne by the recipient.
Lastly, there are many commonsense restrictions on the freedom of speech. For instance, abusive phone calls are considered harassment and no one would try to argue that restrictions on them would impinge on freedom of speech. As another example, you can not be forced to pay postage on paper junk mail sent to you. Every medium is different; common sense dictates that different rules apply to handing out free leaflets in the park and calling people in their homes. It is time to enforce some common sense on the Net.
Q. Isn't blocking spam censorship?
No. Censorship is blocking information based on its content. Spam-blocking merely keeps the content in its proper place. My local public library has a bulletin board where people can post for-sale ads and business cards; they would be rightfully upset at someone who inserted an advertising flyer inside every book on the shelves, which is the equivalent of posting a notice to every Usenet group.
It would be censorship to try to restrict advertising from all parts of the Internet. However, asking someone to pay the fair costs of their actions is not censorship, it's simple economics.
Q. Commerce is on Usenet and the Internet to stay. Aren't anti-spammers just anti-commerce in disguise?
No. Protecting users from spam makes the Internet more conducive to commerce, not less. Employers are more likely to let their employees read Usenet at work if the newsgroups remain topical and functional. Using e-mail for business is much easier if mailboxes aren't clogged with extraneous material. People are much likelier to take Net commerce seriously if they don't think of the Net as a cesspool of scams, questionable products, and pyramid schemes.
Many of the people fighting spam are already conducting commerce on the Internet. Some of us are even old hands at it. We want to promote responsible commercialization of the Internet, not an all-out land-grab. Right now, spammers are using unethical tactics, stealing resources from sites and users, to try to get a leg up on people who follow the rules.
Q. Isn't spam just the same as traditional paper advertising (third class or "junk" mail)?
No. Third-class mailers pay a fee to distribute their materials. Spam is the equivalent of third-class mail that arrives postage-due. Real people pay real money, in the form of disk space charges, connect time, or even long-distance net connections, to transmit and receive junk e-mail and newsgroup postings. Unless we utterly overhaul the Internet's mail and news software to charge a mailing fee, spam is taking advantage of the cooperative nature of the Net.
Indeed, spam is most like junk FAXes, which are sent at the convenience of the sender and the expense of the recipient. With third class mail, if you don't want it, you throw it out, and it takes very little time. If you are interested, you open it. Spam email costs you and your provider money to receive whether you ever read it or not.
Q. Then isn't spam just the equivalent of traditional telemarketing?
No. Traditional telemarketers are closely regulated by law in many countries. For example, in the US, they are prohibited from calling businesses, and they are required to stop calling anyone who asks to be put on their "do-not-call" list. Spammers do not follow these, or any of the other, restrictions on telemarketers. If you complain about spammers, they just harass you, and if you call their provider, you get indifference much of the time.
The difference again is who pays the cost - a telemarketer will have to staff up, rent phone lines, and pay monthly and often per-minute phone charges. Telemarketers cannot call collect. A spammer gets a throwaway account or a free trial disk, or signs up with a mass-mailing company, and blasts a message at hundreds of thousands of people.
In many ways spamming resembles those automated calling machines that became popular with telemarketers a few years ago. They programmed the machines to dial their way through entire prefixes, and frequently the machines hung people's phone lines and literally wouldn't go away. Likewise, spammers get email address lists and run through them. I [Scott] used to run a public mail node, and I get messages on a weekly basis for defunct accounts, and they're all spam.
Spam can be viewed as machines harassing people in a way which is very cheap for the machine and a substantial burden to the people.
Q. There is a central clearinghouse you can write to to get your name taken off of most direct-mail-advertisers' mailing lists; is there an equivalent for electronic advertising?
No. A few people have advertised such a service (generally through spam!), but people who tested them with new e-mail addresses made up for the purpose found them flooded with spam within a few weeks.
There is just no enforcement mechanism for such a list. If we compiled a list and gave it to the spammers to delete, chances are they would just add all of the addresses to their target lists.
Q. Is spam legal?
Maybe.
Part of the problem is that the explosive growth of the Internet, and the very recent rise of professional spammers, has moved much faster than the laws, or the knowledge of the people who are supposed to enforce them. For example, most people at the US FCC, which has jurisdiction over interstate junk faxes, don't even know what junk e-mail is, let alone how the laws they enforce apply to it. (The FCC's Consumer Litigation department can be reached toll-free at 1-888-225-5322)
Many people think that spam can be shoehorned into the provisions of the U.S. anti-junk-fax and telemarketer regulation laws (US Code 47.5.II), but to our knowledge this has not yet been tested in court.
There's a good chance that spam is illegal under various U.S. state laws. For example, a case has been brought against a spammer based on the Washington state junk fax law. The Washington law defines a telefacsimile message as "the transmittal of electronic signals over telephone lines for conversion into written text." Check your state law if you would like to sue a spammer.
In the U.S., everything not explicitly illegal is permitted. Until a court makes a decision, or Congress passes a law, spam may be legal here. However, there are plenty of precedents in common and tort law that find similar activities illegal. In a nutshell, spamming is theft of service, and theft is illegal without needing special laws.
In some countries, unauthorized use of computing resources is a crime. [If you know about legal issues with spam in other countries, please let us know!]
Another part of the problem is that many people want as little government interference in the Internet as possible. Although the Internet has its roots in a U.S. Government network, it is currently a cooperative coalition of commercial carriers. It is far better for the carriers to agree on the rules than for the government to step in and set up inflexible laws.
Yet another facet is the international nature of the Internet. If one country passes laws against spam, professional spammers will just move abroad, the same way that the phone sex lines moved to the Carribean after the U.S. regulations on them became too restrictive.
Q. Where can I advertise?
You can advertise on anything you own - your own Web site, any mailing lists you run (as long as people sign up voluntarily - note that much spam amounts to mailing lists people are signed up to without being asked), any newsgroups that belong wholly to you. You can't advertise on other people's mailing lists without their permission, on public newsgroups (by and large), or using other people's e-mail boxes, any more than you can put a billboard up in somebody's front lawn.
Q. Can I advertise on the biz.* newsgroups?
Basically, no. See the BIZ Newsgroup FAQ for details.
Q. What does "spamvertise" mean?
It means to "advertise via spam."
Q. Can we create a "postage stamp" system for e-mail and eliminate spam by making it cost too much to send it?
It seems extremely unlikely. In order to successfully handle postage on every e-mail sent today, someone would have to build an electronic payment system that is 10-100 times bigger than the biggest payment processors in the world, and suceed in making a profit on transactions of just a few cents each. See John Levine's paper on e-postage for more details.

We thank the following people who have contributed to this document:

Donald E. Eastlake 3rd
Alan Thew
Christina Schulman

Scott Hazen Mueller / E-mail me & Aliza R. Panitz / buglady@ability.net