Anti-spam laws attempt to address the problem of spam, but their enforcement varies widely. The CAN-SPAM Act regulates commercial email in four areas, including accuracy and honesty, opt-out requests, and identification. However, many spammers operate outside the US and ignore the law. European anti-spam laws are broader but also suffer from varying interpretations and lax enforcement. Despite the efforts of the IT community, spam remains a significant problem, with over 135 billion spams sent every day.
Anti-spam laws are attempts by lawmakers to address the problem of spam, which poses a very real threat to millions of users of electronic communications devices around the world. In the United States, the CAN-SPAM (Controlling the Assault of Non-Solicited Pornography and Marketing) Act was passed by Congress in 2003 to address email spam. The European Union passed anti-spam legislation in 2002, but the specifics of these laws vary greatly from country to country. The first anti-spam laws were enacted in the late 1980s and early 1990s, but were ineffective because offenders remained outside the jurisdictions of existing governments.
CAN-SPAM effectively passed the many anti-spam laws that had been passed by states and focused primarily on email spam or unsolicited commercial email. In the United States, as in many countries around the world, free speech is a guaranteed right, which means that most speech, however offensive, cannot be banned. Therefore, CAN-SPAM attempts to regulate this form of commercial speech in four main areas, both technical and contextual. These four areas also highlight the top four objections to spam.
One of the characteristics of illegitimate spam is that it is deceptive. CAN-SPAM countered by demanding honesty. First, the header information must be accurate. Spam often forges header information to give the impression that it was sent from a legitimate company. CAN-SPAM’s second important provision also highlights deception: subject lines must be accurate and truthful, and may not mislead the recipient into opening the email.
Another characteristic of spam is that it is ubiquitous. Before most anti-spam laws were enacted, the general rule was that once a spammer got hold of an email address, the only way to get relief was to change it. The third component of CAN-SPAM, therefore, is that recipients must be provided with a way to opt-out of receiving further email. However, many believe that spammers do not honor opt-out requests; instead, spammers are believed to view an opt-out request as confirmation that an email address is active.
CAN-SPAM finally requires that commercial email must be identified as commercial in nature and, if justified, also be sexual in nature. The email must also include the sender’s identity and physical address.
When CAN-SPAM was enacted, it effectively replaced existing state laws; in fact, individual states wishing to enact stricter legislation are barred by the act from doing so. CAN-SPAM is observed only by legitimate companies; the multitude of CAN-SPAM offenders break the law with impunity outside the United States. To date, there have been fewer than 100 successful prosecutions under CAN-SPAM. However, statistics show that the spam wave has leveled off since CAN-SPAM was introduced and the incidence of sex spam has actually decreased slightly.
Anti-spam laws in Europe are slightly better; broader than American law, they attempt to deal with spam in many different forms, such as faxes and text messages, not just email. An obvious flaw in law enforcement is the lack of a uniform standard for enforcement. The laws are open to varying interpretations by member countries, and the actual penalties imposed vary widely. The UK, for example, has particularly lax enforcement, with a bureaucratic maze imposing delays of a year or more in bringing an anti-spam case to trial and minimal fines.
Even with the restrictions and limits imposed by anti-spam laws, spam remains hugely popular with legitimate advertisers because it’s virtually free to send, but that also means that anyone who can string a sentence together – and many who can’t – can flood million of people. of mailboxes with unwanted messages at the click of a button. Email spam is also often the delivery vehicle for phishing scams and malware. It is estimated that over 135 billion spams are sent every day, which represents over 90% of the daily email flow.
Despite the statistics, however, anti-spam laws are notable for the degree to which they are not enforced. In 2005, two years after CAN-SPAM was enacted, it was estimated that approximately 1% of all commercial marketing email sent in the United States was compliant with the law. Compared to the hundreds of billions of spam emails sent worldwide every year, there is hardly any enforcement effort. While the laws set compliance standards for legitimate marketers — those marketers who also spend billions of dollars on more traditional forms of advertising — spammers whose emails are for illegitimate purposes continue to send their emails with impunity. Users around the world are better protected from their schemes thanks to the efforts of the IT community, which develops and implements anti-spam technology that prevents most spam from reaching e-mail inboxes.
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