No doubt about it, SPAM is a problem. Is legislation the solution? There are various issues that must be sorted out. Consider the following.

* SPAM is commercial speech and therefore is protected by the First Amendment.

Many who oppose legislation that would regulate SPAM characterize it as commercial speech that is, therefore, protected. Others contend that your mailbox is private, and individuals have a right to privacy. This contention was supported in a 1970 decision by the Supreme Court, in which Chief Justice Warren Burger wrote, "We...reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another."

* Legislation will control legitimate e-mail, but won't make a difference to true spammers.

Many argue that companies that use e-mail marketing for legitimate reasons will adhere to anti-SPAM laws. However, it's the fraudulent e-mailers who are the most annoying-the Nigerian scam letters, offers of get rich quick schemes, and quack herbal remedies. Senders that hide behind false e-mail addresses are already committing fraud, so it is unlikely that anti-SPAM legislation is going to be much of a deterrent.

* Opt-in or opt-out?

Legislators have not agreed on which approach, that is opt-in or opt-out, for SPAM legislation is better. Opt-out would require that that a consumer specifically asks to be removed from mailing lists; whereas, opt-in would require the consumer to ask to be included in future mailings. While opt-in would seem to be preferable, some say that spammers could place a user on a mailing list, claim that the user opted for the message, and then ignore requests for removal.

* SPAM, in and of itself, is not illegal.

According to the Federal Trade Commission, SPAM is not illegal. Whether something is wanted or unwanted, it is not against the law to send e-mail, even if you are sending the mail by the millions. What makes SPAM illegal is if it is fraudulent and deceptive. Of course, much of what is sent as SPAM is deceptive. Internet headers are forged to falsify the mail servers, and relays and instructions for removing yourself from the list are false. Another argument is: laws for fraud exist, so why do we need other laws for SPAM? It becomes a "Catch-22."

I have read many articles discussing the difficulty of enacting legislation to control SPAM, with many bemoaning the fact that whatever is done will be too little too late. However, a recent article in The New York Times Magazine1 had two surprisingly simple suggestions that would probably go a long way toward solving the problem.

1. Make forging Internet headers illegal. The system depends on accurate information about senders and relays; this information should not be falsified.

2. Unsolicited bulk mail should carry a mandatory tag. This would allow consumers to establish a limited number of filters that would eliminate all SPAM. The technological challenge of identifying SPAM would disappear.

Let's hope that our legislators read CIN Plus or at least The New York Times.

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