Stopping E-mail Spam

MARGARET WARNER:

Unsolicited e-mail, or spam, is clogging the Internet. At nearly nine billion messages a day, it accounts for more than half of all e-mail, and costs businesses and individuals billions of dollars in lost productivity. A bill signed today by President Bush known as "Can Spam" tries to attack the problem by requiring all senders of commercial e-mail to list a valid sender's address, include an accurate subject line, clearly label sexually oriented material, and offer an opt-out mechanism.

Violators face fines of up to $6 million and jail terms of up to five years. It also encourages the Federal Trade Commission to set up a do- not-spam registry. When the law takes effect January 1, will it curb the flood of spam? For that, we turn to Randall Boe, executive vice president and general counsel for AOL, and John Mozena, a cofounder and vice president of the Coalition Against Unsolicited Commercial E-mail. Welcome to you both.

Mr. Boe, as I read this bill, it appeared to ban deceptively labeled e-mail, but will it do anything else to curb spam?

RANDALL BOE:

Yeah, I mean, the fight against spam is something that's going to take a lot of different weapons. This law is an important weapon. It sets some rules of the road for commercial e-mailers. It gives consumers additional rights and it strengthens some of the penalties for people who violate the provisions.

I'd like to be able to tell you that on January 1, you'll wake up and your e-mail in-box will contain only things that you want, but that's not the case. There isn't a magic bullet. This law is not a magic bullet. That's something that's still far away from us.

MARGARET WARNER:

Mr. Mozena, do you see it as giving consumers additional tools, additional protections?

JOHN MOZENA:

No, we really don't. We're actually fairly disappointed in this law. Unfortunately this is the law that doesn't give consumers power. It does give some enforcement power to the federal government, to the state attorney generals, and to a certain extent to some of the Internet service providers out there, but it specifically doesn't give consumers any right to take a spammer to court. This is a law that sets rules for how to spam, not a law that tells people not to spam.

MARGARET WARNER:

That is a complaint, that essentially it's saying to even legitimate companies, "here are the rules of the road you're totally free to send unsolicited e-mail to anyone you want."

RANDALL BOE:

It doesn't actually say that, but the e-mail problem we have today is not caused by the L.L. Bean's of the world sending e-mails out about winter specials. The e-mail problem is caused by outlaw spammers who send pornographic messages, they send advertisements for non-prescription, prescription drugs, body part enhancements. These folks are the folks to contribute to most of the volume in spam. They're the ones who generate most of the customer complaints.

MARGARET WARNER:

All right. So take those kind of e- mailers and take what this law does. How will it stop them?

RANDALL BOE:

Well, what it does is it gives both law enforcement and companies like AOL and other companies additional tools to go after them. What ends up happening is you spend huge amounts of resources tracking them down because these are people who are very smart, have lots of resources, very savvy.

MARGARET WARNER:

All right. But if I didn't know what spam is, tell me this: Are these people selling real products or are they just trying to get people to send the money and they're not selling anything?

RANDALL BOE:

Well it's a combination. Sometimes what they're selling is traffic to a Web site. That's one of the popular business models for pornographic spam, for example, is sending traffic to a Web site. They get paid in fractions — hundredths, thousandths of a penny. And all they want to do is get you to click once.

So some of them sell products. Some of them just sell traffic. But all of them have huge technological resources. It takes us months, months, to track them down. I really doubt that any individual consumer has the time, the resources or the technology that you need to track them down and bring them to justice.

MARGARET WARNER:

Mr. Mozena, let's take the pornographic ones. As I understand this law, it will — the FTC is going to be able to come up with a phrase or two that all of those will have to put on the subject line. And then couldn't the consumer at least set their filter, his or her filter, to filter all of those out? Wouldn't that at least be a first step?

JOHN MOZENA:

It is a first step and that would allow them, even though if the consumer is filtering the message at the end, that still means that the message is causing problems for people like AOL because it's still going through most of their network to get to the consumer. It's not completely getting rid of some of the technical problems that spam causes.

MARGARET WARNER:

But then take that another step. How about advertisements for things that aren't sexually explicit but still you know, "get a low interest rate," "here's a hot new diet," whatever — this will do nothing to stop those or give the consumer no extra tool to filter them out?

JOHN MOZENA:

Well, there is a tagging provision for those. Unfortunately the law doesn't specify how that's going to actually work. The problem that we have is not necessarily getting rid of the diet pills and the body part enhancements and the relatives of the dead Nigerian dictators.

The concern that we really have is that for all that the– to use Mr. Boe's example– the L.L. Bean's of the world are not using spam right now. Certainly this law was strongly supported by the Direct Marketing Association, the direct marketing industry with the intention of clearing all of the scam artists out of our mailboxes so that the legitimate marketers of the world can start filling them up.

There's a lot more legitimate marketers out there than there are spammers, and they have a lot more resources than the current crop of spammers do, and that concerns us.

MARGARET WARNER:

Is that true, Mr. Boe? As I understand it AOL and other companies like yourself worked closely on fashioning this bill with the Direct Marketing Association. I mean, is that part of what's happening here, that as the "do not call" registry really goes into effect and they can't call you on the phone that that's going to be the next frontier?

RANDALL BOE:

I'm not sure that's right. I mean these people today, if they wanted to inundate you with e-mail could do so. And that doesn't happen. So I don't think that a law that makes it harder enforces you to offer consumers an opt- out is suddenly going to make everyone want to send bulk e-mail to consumers.

The test and the job for us, working on this bill, was how do you craft something that allows legitimate mail, you know, that allows my son's cub scout troop to go and publicize a bake sale, which is commercial e-mail, without, you know, and still fight the people who need to be fought. The problem with tagging and things like that…

MARGARET WARNER:

By tagging you mean as in Nevada, you have to put "ADV" for advertisement and you could block them all.

RANDALL BOE:

Right. So the people who contribute 90 percent of the bulk and almost all of the complaints, they're already acting outside of the law. They're not putting "ADV" on their ads. They're never going to. And simply requiring them to do that is going to do nothing for spam. Your mailbox will look exactly the same the next day after that law passes.

MARGARET WARNER:

Mr. Mozena another complaint I've heard, and I wonder if you could just flesh it out slightly for us, is that this law will override stronger state laws in some states. Is that true? And what kind of laws are we talking about?

JOHN MOZENA:

That is true. In fact, a lot of the timing behind the passage of this bill, which was really rushed into law without the normal committee hearing process and opportunity for public input that we would hope for legislation, is because California had a law that was going to go into effect on January 1 that was going to be by far the toughest state law out there that was going to require marketers to first get permission from consumers before sending them messages, what's known as opt-in.

That's the legal standard that's in place in the European Union and elsewhere around the world. And the marketers really didn't like that idea. For all that we say that the marketers, "oh, they'll never spam us," they are certainly putting a lot of work into trying to get a legal framework, which is perfectly legal for them to do just that.

As of now, this means that California's law won't go into effect even though the legislature, having already tried something that looks a lot like this federal law and saw it not working they went and passed a tougher law that's now not going to have a chance to go into effect. California's residents aren't going to get a chance to benefit from that and some other states that have some tougher laws or at least have pieces of laws that are tougher also aren't going to go into effect as well.

MARGARET WARNER:

Why override the state laws?

RANDALL BOE:

Well, you need to, with the Internet, you need to have a uniform set of rules so if you allow every state to decide what kind of e-mail is going to be sent to their residents, I frankly don't know how you ever make that work. It ends up being anyone who does business on a national level, which is how the Internet works, has to comply with whichever state has the toughest set of restrictions at the time. It's simply not workable.

MARGARET WARNER:

So just to explain, the way this will work instead in terms of whether you opt in or opt out, is if you have to opt out, you have to go into the body of every single piece of spam or junk e-mail and specifically opt out.

RANDALL BOE:

If it's a legitimate commercial e-mailer, yes, when you open up the message you can hit the opt-out button. As I keep saying the bulk of the spam in your mailbox are not from legitimate commercial mailers.

MARGARET WARNER:

So you seem to be acknowledging that this is not going to do much, period.

RANDALL BOE:

It does do a lot. It sets uniform rules for commercial e-mailers. It provides a lot of additional penalties to use against the outlaw spammers. I mean, the problem is not commercial e-mailing — generally. The problem is not the L.L.Beans of the world to pick on them. The problem are the outlaws.

The toughest spam law in the country is in Virginia which is not preempted. The Virginia Attorney General announced last Thursday indictments, the first criminal actions against spammers in this country. That's a tough law that's actually going to make a difference.

MARGARET WARNER:

Mr. Mozena final word to you. Would you agree that this is at least a good first step or do you think it's actually a step back?

JOHN MOZENA:

I don't know that it would be a step forward and step back until we see how well it's enforced. It's very true that a lot of it is going to depend on our ability to crack down on these outlaw spammers. Our concern remains that if we do get rid of the outlaw spammers that we do — that we don't then replace them with legitimate marketers out there. That remains an issue.

MARGARET WARNER:

All right. Thank you both very much.

RANDALL BOE:

Thank you.

JOHN MOZENA:

Thank you.