OPINION
Are We Ready To Throw Spammers in the Slammer?

In fact, there are so many anti-spam acts flying around Washington that spamerati -- groups and private citizens who opine or blog on the matter -- are cautioning the bills could have unintended and unfortunate consequences, including blocking political speech while letting legitimate commercial establishments effectively spam with impunity. The Coalition Against Unsolicited Commercial E-Mail (CAUCE), a citizens group, recently sent an open letter to Senator Conrad Burns (R-Montana) protesting the terms of his proposed CAN SPAM act, saying it will do nothing to stem the tide of spam and could undermine the First Amendment.

All of this raises the question: Do we really know who the spammers are? Based on lawsuits by AOL and others naming specific individuals and establishments, the answer seems to be, largely, yes. The larger issue is how we should act on that knowledge.

Fine Line

Despite the seemingly anonymous quality of the junk that arrives in your inbox, we know quite a bit about those who spam. The header of any given e-mail message contains information about where that particular message originated. Your ISP, or your e-mail provider if you use a free service like Hotmail or Yahoo (Nasdaq: YHOO) , knows even more. Large Internet service providers, such as MCI (formerly Worldcom) and AT&T (NYSE: T) , can track whether certain parties are sending bulk e-mail, whether e-mail is being forwarded from an illegitimate user account, or whether an e-mail server on a home machine is illegally communicating with the ISP's machines to send large amounts of mail. That information can be sliced and diced, and patterns can be divined.

The question then becomes what to do next. If, as many contend, a few large providers are responsible for the majority of spam, the answer might be as simple as prosecuting those entities and effectively forcing them out of operation. If spam originators are clients of AOL or another large ISP, it probably means putting pressure on large service providers to discipline those customers or cut them off entirely.

Then there is the gray area. One of CAUCE's arguments is that even if anti-spam laws are passed, some legitimate outfits that spam will continue to do so with impunity because, for one thing, they own the pipes. If the Microsoft (Nasdaq: MSFT) Network sends out what amounts to an advertisement to users of its service, can those users really bring any legitimate claim against MSN? CAUCE argues that present legislation would allow such annoying but legitimate infarctions.

The Spam Police

Another factor is that network officials have for some time worried about abuses of centralized Internet control. Each attempt by an ISP to track and punish users for distributing content risks harming the Net as an open communications medium. Even inadvertent blocking of content happens on a daily basis.

A few days ago, I received an e-mail from the editor of a political Web site that has been a vocal critic of the U.S. government and its policies. The editor told me by phone that several times in the past three months, registered users had not received the site's e-mail mailing. Several times he had contacted AOL, which apologized profusely and fixed the problem, only for it to crop up again days later. MSN's Hotmail and Yahoo provided no explanations for apparently dropping the group's messages for days or even weeks at a time.

I don't think there's any scandal here, but the point is that even well-intended bulk-mail filtering has the ability to shut down legitimate organizations communicating with their constituencies. An ISP with lax ethics conceivably could target organizations it wished to block.

Big Brother Future?

The folks at CAUCE believe an opt-in policy should be mandatory, allowing users to specifically state from whom they wish to receive content. Theoretically, such a strategy might shut out both the cowardly spammers and the respectable organizations whose newsletters nonetheless amount to harassment, while protecting groups whose users have specifically requested e-mail.

It sounds like a sensible plan, but I fear the actual course of events will result in greater crackdowns on individual sources of spam by ISPs and greater centralized policing of e-mail. That could be a bad thing if it starts to endanger the freewheeling nature of e-mail and the Internet at large.