Ethics @ Work: Once and future spam

Court confirms spam is legal, but the Knesset may change that soon.

By ASHER MEIR
December 6, 2007 20:32
Ethics @ Work: Once and future spam

asher meir 88. (photo credit: )

 
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Spam law is constantly evolving, but recently there have been an unusual number of developments: two important courtroom precedents and a new Knesset bill. The result is that in a period of a few weeks it has been more or less established that spam in Israel is not now illegal but soon will be. Two interesting civil cases regarding spam were recently heard here. In one, the defendant was held liable for not sending spam, in the other the defendant was liable for sending spam. From both it arises that there is no crime or tort inherent in sending junk e-mails. In parallel, the Economic Affairs Committee in the Knesset just approved a draft anti-spam law, thus enabling it to be considered in the legislature. In the first court case, a mass mailer (a.k.a. spammer) agreed to send out a mailing for a customer but was foiled by its service provider, which blocked the mailing on the grounds that it constituted - surprise! - spam. The angry customer then demanded, and received, his money back. In the second case, a man contacted a spammer and requested that he be removed from the mailing list. The spammer agreed, but continued to send spam. The court concluded that the agreement to desist was a binding contract, so continuing to send e-mail was an actionable breach of contract. The recipient was awarded NIS 3,000. Justice Gavriel Shtrasman reached three clear conclusions in this latter case: 1. "Junk mail is not mentioned in Israeli legislation . . . its status has still not been settled in all the advanced countries." 2. "Sending junk mail is not a crime in Israeli law." 3. "Sending junk mail can sometimes constitute a tort" - but from the text of the decision it becomes clear that usually it doesn't. In this case, it was a tort only because the spammer actually agreed to desist from spamming. There is no question that junk mail is a huge problem for world productivity. Before I switched to Gmail (which, for me, identifies junk mail with nearly 100% accuracy), I used to spend about 10 minutes each day deleting spam. If there were a commensurate benefit it might be some consolation, but I can't think of a single spam message I received that actually interested me. But there are good reasons that spam isn't illegal. A basic principle of our legal system is that it is permissible for any person to contact any other person. Legally, spam is in the eyes of the beholder. Anybody can look up my number in the phone book and call me, and anyone who obtains my e-mail address legally can send me a message. Until now, the main legal emphasis in "anti-spam" has been to forbid fraud or deceit. For example, the US "CAN SPAM" act is sometimes jocularly called the "YOU CAN SPAM" act because it permits even unsolicited commercial mass mailings without a prior relationship, as long as the subject line accurately reflects the content; the sender is clearly identified; and an effective unsubscribe mechanism is provided and honored. Another front in the war against spam is the service providers. In an effort to protect their customers and their reputations, service providers may block messages from other providers that come from identified spammers, and when their own customers are identified as spammers they may block their messages to avoid being blocked by other providers. As we mentioned, the hapless defendant in a recent Israeli court case was unable to fulfill its contract because the service provider (Bezeq) prevented it from carrying out its promise. Finally, there are the various anti-spam filters. As I mentioned, my e-mail provider has been amazingly effective at identifying spam. And new technologies, such as the recently launched Abaca service, are always being introduced. (Abaca uses a counterintuitive "it never rains but it pours" algorithm: it identifies you as a spammer if you send many messages to people who already get a lot of spam and few messages to people who get little spam.) The proposed anti-spam legislation, recently approved by the Economic Affairs Committee of the Knesset, basically replaces the current "opt-out" safeguards, which merely empower the recipient to cut off further e-mails by contacting the sender, with an "opt-in" system in which it is forbidden to send mailings to any recipient who hasn't specifically authorized them. Many people make a living by providing direct mail services to businesses, and their product will be in danger of being judged spam by the proposed legislation. I am sure that many of these individuals are advertising worthwhile goods and services to potentially interested customers. I suppose that the ideal anti-spam legislation would allow spammers to "put their money where their mouth is" and validate mailings after the fact given an impressive response rate that suggests that the value to willing recipients exceeds the cost to the annoyed ones. But I can't see any practical way of applying this standard, and in any case I doubt that a meaningful number of providers could meet it. As I mentioned, I can't recall ever responding to any message that would qualify as spam under the proposed bill. Another solution that could be practical would be to allow spam and charge for it. The reason our mailboxes are clogged with spam is that it doesn't cost anything to send. If we maintained the same definition of spam but charged even a penny a letter I imagine that senders would be much more selective. Mailings of a million e-mails are hardly unusual, but if each of these cost $10,000 I bet they would be pretty uncommon. The mandatory opt-in approach suggested in the new bill is a drastic solution, but in my opinion a justified one in light of the horrendous magnitude of the problem of junk mail - in which Israel, sadly, is considered a world leader. Other legislative models could be considered, and in any case legislation is only one front in the war on spam, but all things considered the approach being considered by the Knesset is probably the best solution to this vexing problem. ethics-at-work@besr.org The author is research director at the Business Ethics Center of Jerusalem (www.besr.org), an independent institute in the Jerusalem College of Technology.

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