Fighting SPAM

The New York Times has noticed that SPAM is a problem, even though we have federal legislation telling direct marketers that they CAN-SPAM. The article notes the opinion of some that:

"Can Spam legalized spamming itself," said Steve Linford, the founder of the Spamhaus Project, a London organization that is one of the leading groups intent on eliminating junk e-mail. And in making spam legal, he said, the new rules also invited flouting by those intent on being outlaws.

The article spends a lot of time describing how various players in the anti-SPAM game are wringing their hands, and suggesting that the problem is futile.

"The more effective the filtering technology," Ms. Mitchell said, "the more spam they have to send to get the same dollar rate of return."

Those rates of return can be staggeringly high (and the costs of entry into the market relatively low).

A spammer can often expect to receive anywhere from a 25 percent to a 50 percent commission on any sales of a product that result from a spam campaign, according to a calculus developed by Richi Jennings, an Internet security analyst with Ferris Research, a technology industry consulting firm.

Even if only 2,000 of 200 million recipients of a spam campaign - a single day's response rate for some spammers - actually go to a merchant's Web site to purchase a $50 bottle of an herbal supplement, a spammer working at a 25 percent commission will take in $25,000. If a spammer makes use of anonymous virus-enslaved computers to spread the campaign, expenses like bandwidth payments to Internet service providers are low - as is the likelihood of anyone's tracking down who pushed the "send" button.

Okay, so here's an idea which I would have though would be obvious: the commissions don't come from the ether, so if you can't go after the spammer go after the commission. The "spam-friendly merchants" described in the article certainly do exist - but even they have nominal "no spamming" rules for their affiliates (even as they roll in the dough from SPAM-generated sales and refuse to acknowledge complaints from victims of their affiliates' spamming). Rather than the impotent status quo:

The new federal law does give prosecutors some leverage to go after the merchants - but it must be proved that they knew, or should have known, that their wares were being fed into the illegal spam chain.

Have an agency such as the FTC maintain a list of IP numbers which, due to a history of bad conduct, cannot be approved for commercial email campaigns. Require vendors to mandate that affiliates register in advance of any email campaign the IP number from which their email campaign will originate, to deny permission to affiliates who want to use a banned IP, and to deny commissions to affiliates who fail to register their email campaigns. Give prosecutors the right to seize commissions payable to those whose affiliate ID's are associated with mass email campaigns which violate the law, and require that the affiliates petition for release of the funds. (I'm not advocating forfeiture, or reversal of the burden of proof - Once the affiliate identifies himself and appears in the U.S. Court, if the prosecutor cannot demonstrate that the affiliate did indeed engage in spamming, the funds should be released upon proper petition, if a prosecutor does not move forward within a specified period of time to demonstrate wrongful conduct. But I suspect that true spammers will be reluctant to identify themselves to a court and to subject themselves to its jurisdiction. And a history of claims of "victimization" should be admissible as evidence, consistent with FRE 404(b).)

If you want to move past SPAM email, require that vendors refuse to grant affilate status to websites hosted at IP numbers associated with spamming activity, and require that they terminate affiliates whose websites move to banned hosts.