A recent Pew Internet & American Life survey confirms the general feeling that the hassle of using e-mail is getting closer to outweighing the benefits. This is particularly true of people for whom e-mail is not yet a significant part of their professional or personal lives. If spam retards further adoption of e-mail, it may dampen the productivity gains that e-mail and other Web technologies offer.
Spam is fundamentally a problem of property rights, which in cyberspace are loose, confusing, unprotected and, practically speaking, undefined. From a user's perspective, it is entirely unclear who really owns an e-mail address, what rights are afforded the owner and who should reap the economic benefits of an e-mail address. The same is true of an in-box.
The federal Can-Spam Act and other pieces of legislation have so far done little to remedy this fundamental problem behind spam. Most state and federal legislation (California's most recent law is the exception) have primarily focused on curbing deceptive practices among spammers, making spam more transparent to the recipient.
Legislation has not strengthened the enforcement of existing property rights or more clearly defined individual protections of their own e-mail. It's interesting to note that most successful spam lawsuits have relied on common law principles of trespassing and unjust enrichment.
Existing law has been strong enough and clear enough to protect the rights of companies, as evidenced by the undefeated plaintiffs in every suit filed by an Internet service provider against spammers. The problem is that these existing laws only confer legal standing on someone who actually owns a piece of hardware connected to the worldwide chain of servers, routers, fiber optics and wires that make up the Internet.
But the biggest societal cost of spam is the threat it poses to usage, the hassle faced by individual users.
In a very real sense, the currently undefined rights of individual users have made e-mails an asset held in common.
Users' claims on rights--be they rights of privacy or rights of use or protection--are currently pretty weak and based more on expectation and assumed common understanding than any law or fixed structure. This leaves individual users and their e-mail unprotected and uncared for. Not a good place to be. Without individual users, the Internet is meaningless. No matter how much money is invested in the global network, it's worthless without users.
In a very real sense, the currently undefined rights of individual users have made e-mails an asset held in common. They belong to everyone. They are a part of the global network of infrastructure that everyone has agreed to share. It is hard to make a claim that they are an individual's private property.
Under current law, an e-mail address is technically the property of the owner of the domain name to which it is directed--the @whatever in one's e-mail. This could be an employer, an Internet service provider or a free Web-based e-mail service. Philosophically, the claim of private property is tough to make. Far more people use my e-mail address to send things to me than I do for productive, directed and intentional communications.
Despite these observations, most people have an expectation that their e-mail address belongs to them. People believe that they have some control over its use and that it should be protected from abuse, much like physical mail. It is under this expectation that people agree to be part of the network and to use the Internet. Spam proves this expectation to be unfounded. Individual e-mail addresses are unprotected in the commons. They are being used by others without economic cost. Experience has shown time and again that assets owned in commons, owned by everyone, freely, will be abused--sometimes to the point of degrading the value of that asset to almost zero.
A step in the right direction would be to give individuals legal standing to file suit against spammers. This would be a tremendous assertion of individuals' rights to their own e-mail addresses. This tactic, enshrined in the Telephone Consumer Protection Act of 1991, effectively eliminated the practice of unsolicited faxes. It would increase the likelihood that a spammer would end up in court, thereby raising the costs of spamming. If every time spammers crafted an unsolicited e-mail, they knew that every single recipient could sue them, they'd think twice before hitting the Send button. California passed a law that would have done this, but it has been pre-empted by Can-Spam.
The hard-dollar costs of spam are estimated at more than $10 billion a year. The potential threat to the continued adoption and use of e-mail is growing. Legislators can help bring the Internet into adulthood by advancing the protection of individuals' rights on the Internet. The risk of not doing so, as the Pew survey indicates, is to diminish the tremendous benefits of the Internet and impair future gains in economic productivity.
Mark Phillips is CEO and co-founder of Standpipe Studios, a supplier of Web-based project management software.
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