• by Mark Naples , March 11, 2004

If you follow this space, you know that I have been in favor of the intent of Can Spam, the federal Can-Spam Act, which took effect in January. Since our industry has seemed hamstrung to do anything meaningful ourselves, I have been in favor of the idea that the U.S. Federal Trade Commission (FTC) at least provide a template for enforcement--a starting point.

The actual effects of Can Spam seem negligible at best, or unintended at worst. Many people have complained that Can Spam has actually increased the amount of unwanted email they receive by as much as 10 percent, attributing that increase to marketers realizing that the new law allows them to send email messages without permission, as long as they honor requests from users to be removed from future mailings. Brightmail recently concluded that 60 percent of all Internet email sent in January was spam, and that's after the passage of the Can-Spam Act and a 2 percent increase from December 2003.

The rise in spam has enabled critics to point to our inept, meddlesome government, which clearly has no idea what it's doing when it comes to the digital world. I've wondered if these critics haven't been misguided, since, if nothing else, Can Spam might provide a jumping off point to solving the problem.

But it may be the only thing it provides. Wednesday's announcement that the coalition of the largest Internet Service Providers (America Online, Earthlink, Microsoft Corp., and Yahoo!) reveals precisely what the limits are to Can Spam. I'm not saying that it's less of a jumping off point. But their lawsuits clearly reveal that it offers a leap into the abyss.

The Wall Street Journal reported that "industry analysts questioned whether the suits would be more effective than other efforts to control spam, or unsolicited commercial e-mail. As one sign of the limitations, all but seven of the 222 defendants in the six lawsuits were unnamed, because the Internet providers haven't yet confirmed their true identities."

That's right kids. There is plenty of hubbub over thess lawsuits. But, the "Big 4" have very little idea about who it is that they're suing.

This is commonly called grandstanding. It looks good on paper, and it positions the companies involved as white hats. But what does it mean? I think it means next to nothing, in terms of how much spam we'll all see in our mailboxes. Can Spam turns the lights on and makes the roaches go back under the cupboards. This lawsuit is the "Big 4" running into the kitchen swinging a broom at the roaches, while exclaiming that they're doing something about the scourge of spam. That's all it is.

Is that meaningful? Let's approach the issue mathematically. If there are 222 defendants in the six lawsuits, and only seven defendants are actually identified by name, I'd say it's roughly 3 percent meaningful, which is to say, not very.

Granted, these companies have to do SOMEthing. They formed a coalition; that's what we do in Washington, after all.

As reported in the New York Times, Michael Allison, the chief executive of the Internet Crimes Group, an investigative firm that has helped Internet providers track down spammers, claims that the lawsuits are a piece of a broader solution. "You can't not sue," he said, adding, "You have to sue. You have to put people in jail who are the most egregious. And you have to filter out spam at the ISP level. It is the combination of methods that will knock these people down and bring us back to a level of sanity we can deal with."

You can't not sue? That's right. You almost have to sue when you have no idea what you can do that would actually be productive.