Anti-spam laws may 'do more harm than good'

In strongly worded criticism of current legislation, Tim Muris characterised the dozen or so bills as well intentioned, but he warned they "will do little to solve the current spam problems" and could be even "less useful" than existing laws that the FTC has been using to sue spammers.

"No one should expect any of (the proposals) to make a substantial difference," Muris said. "In fact, they could even be harmful."

Muris made his remarks during an afternoon speech at a conference organised by the Progress and Freedom Foundation, a group whose stated mission is to "educate policymakers, opinion leaders and the public about issues associated with technological change, based on a philosophy of limited government, free markets and individual sovereignty." AOL Time Warner, BellSouth, Cisco Systems, Disney and many other companies are sponsors of the group.

Muris said that a long-term fix would probably mean rewriting the Simple Mail Transport Protocol (SMTP), the Internet's workhorse standard, but he stopped short of saying that all new laws would be useless. One positive step, he said, would be for Congress to enact suggestions proposed by the FTC in June that would grant the agency's investigators the power to serve secret requests to Internet service providers for subscriber details, peruse FBI criminal databases and swap sensitive information with foreign law enforcement agencies.

Muris' luncheon remarks came a few months after the FTC organised a landmark spam summit, which brought together email marketers, technology companies and Internet service providers. Spam has been steadily increasing, with a recent study suggesting that it's accounting for about 40 percent of received email. This week's worm that infects some computers running Microsoft software has created even more problems for network managers.

In response to public outcry and clogged inboxes, politicians have been busily drafting more and more anti-spam proposals, none of which has been approved by either the Senate or the House of Representatives. Muris said that any successful law would have to "identify the person sending the spam;" confront how to punish spammers, who often have minimal assets at risk in a civil lawsuit; and regulate non-deceptive unsolicited commercial email.

Muris singled out the Can-Spam Act, sponsored by Senators Conrad Burns and Ron Wyden as a proposal that "could actually be harmful."

"The FTC would have to prove that the seller (who hires a spammer to market a product) knew, or consciously avoided knowing, that the third-party mailer intended to violate the law," Muris said. "This standard requires proof of both the seller's and spammer's level of knowledge… These requirements to prove intent pose a serious hurdle that we do not have to meet to obtain an injunction under our current jurisdiction."