|“||Spam is the twenty first century version of junkmail and over the last few years has quickly become one of the most popular forms of advertising over the Internet, as well as one of the most bothersome.||”|
Origin of the term
The term "spam" originated as the trademark name for a canned precooked meat product manufactured by Hormel Foods Corporation. The e-mail-related connotation has its roots in a popular 1970 sketch by the British comedy troupe Monty Python's Flying Circus, in which the word "spam" is repeated to the point of absurdity. A waitress recites menu items, which, to the restaurant patrons' dismay, involve increasingly repetitive mention of SPAM, only to be periodically interrupted by a group of Vikings chanting a chorus about SPAM until normal dialogue is impossible. Thus, in the context of the Internet, "spam" has come to symbolize unwanted, and perhaps annoying, repetitious behavior that drowns out ordinary discourse.
One challenge in debating the issue of spam is defining it. To some, it is any commercial e-mail to which the recipient did not "opt-in" by giving prior affirmative consent to receiving it. To others, it is commercial e-mail to which affirmative or implied consent was not given, where implied consent can be defined in various ways (such as whether there is a pre-existing business relationship). Still others view spam as "unwanted" commercial e-mail.
Whether or not a particular e-mail is unwanted, of course, varies per recipient. Since senders of UCE do find buyers for some of their products, it can be argued that at least some UCE is reaching interested consumers, and therefore is wanted, and thus is not spam. Consequently, some argue that marketers should be able to send commercial e-mail messages as long as they allow each recipient an opportunity to indicate that future such e-mails are not desired (called "opt-out").
Another group considers spam to be only fraudulent commercial e-mail, and believe that commercial e-mail messages from "legitimate" senders should be permitted. The Direct Marketing Association, for example, considers spam to be only fraudulent UCE. The differences in defining spam add to the complexity of devising legislative or regulatory remedies for it.
Spam can also be used as a delivery mechanism for malware and other cyber threats. Spam is made possible because the simple mail transfer protocol (SMTP) used for email does not require an email message to contain accurate routing information, except for the intended recipient of the email.
Impact of spam
"High volumes of junk e-mail devour computer processing and storage capacity, slow down data transfer between computers over the Internet by congesting the electronic paths though which the messages travel, and cause recipients to spend time and money wading through messages that they do not want. It is ironic that if defendants were to prevail on their First Amendment arguments, the viability of electronic mail as an effective means of communication for the rest of society would be put at risk." "To handle the increased e-mail traffic attributable to deceptive spam, ISPs must invest in more computer equipment. Operational costs likewise increase as ISPs hire more customer service representatives to field spam complaints and more system administrators to detect accounts being used to send spam. . . . The cost-shifting — from deceptive spammers to businesses and e-mail users — has been likened to sending junk mail with postage due or making telemarketing calls to someone's pay-per-minute cellular phone."
The differences in defining spam add to the complexity of devising legislative or regulatory remedies for it. Some of the bills considered by Congress took the approach of defining commercial e-mail, and permitting such e-mail to be sent to recipients as long as it conformed with certain requirements. Other bills defined unsolicited commercial e-mail and prohibited it from being sent unless it met certain requirements.
The final law, the CAN-SPAM Act, took the former approach, defining and allowing marketers to send such e-mail as long as they abide by the terms of the law, such as ensuring that the e-mail does not have fraudulent header information or deceptive subject headings, and includes an opt-out opportunity and other features that proponents argue will allow recipients to take control of their in-boxes.
Controlling spam is complicated by the fact that some of it originates outside the United States and thus is not subject to U.S. laws or regulations. Spam is a global problem, and a 2001 study by the European Commission concluded that Internet subscribers globally pay 10 billion Euros a year in connection costs to download spam. Some European officials complain that the United States is the source of most spam, and the U.S. decision to adopt an opt-out approach in the CAN-SPAM Act was not helpful.
In April 2005, a British anti-spam and anti-virus software developing company, Sophos, listed the United States as the largest spam producing country, exporting 35.7% of spam (down from 42.1% in December 2004); South Korea was second, at 25% (up from 13.4% in December 2004).
Recent research shows that Internet users' concerns about spam are actually decreasing, even while the volume of spam continues to increase. For example, in a survey conducted by the Pew Internet & American Life Project during February and March 2007, respondents stated that they were “less bothered by [spam]” now than they reported being in the previous survey, conducted in June 2003. Specifically, in the 2003 survey, 25% of respondents stated that spam was a "big problem"; in the 2007 survey, that figure had dropped to 18%. Even more striking is that the percentage of participants who responded that spam was "not a problem at all" rose from 16% to 28% between 2003 and 2007. The percentage of respondents stating that spam is "an annoyance, but not a big problem" has stayed roughly the same at 57% and 51% in 2003 and 2007, respectively.
One reason for this change in attitude towards spam is attributed to Internet users' growing savvy with identifying spam on their own as well as their increased use of spam filters (whether provided by their Internet service provider (ISP) or purchased on their own). In 2007, 71% of Internet users use filters, up from 65% in 2005.
- Verizon Online Servs., Inc. v. Ralsky, 203 F.Supp.2d 601, 606 (E.D. Va. 2002) (full-text).
- See Hormel Foods Corp. v. Jim Henson Productions, Inc., 73 F.3d 497, 500 (2d Cir. 1996) (full-text).
- United States v. Kelley, 482 F.3d 1047, 1056 n.2 (9th Cir. 2007) (full-text) (Thomas, J. dissenting) (citing CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015, 1018 n.1 (S.D. Ohio 1997) (full-text)).
- David Crystal, Language and the Internet 53-54 (2001) (citing to Monty Python's Flying Circus, 2d series, episode 25 (BBC television broadcast Dec. 15, 1970)).
- Id. But see S. Rep. No. 108-102, at 2 n.1 (2003), as reprinted in 2004 U.S.C.C.A.N. 2348, 2348 (noting that "[i]t all started in early Internet chat rooms and interactive fantasy games where someone repeating the same sentence or comment was said to be making 'spam'").
- CompuServe, Inc. v. Cyber Promotions, Inc., 962 F.Supp. 1015, 1028 (S.D. Ohio 1997) (full-text).
- State v. Heckel, 143 Wash.2d 824, 834, 24 P.3d 404, 409-10 (2001) (full-text).
- See here.
- For example, see Brandon Mitchener, "Europe Blames Weaker U.S. Law for Spam Surge," Wall St. J., Feb. 3, 2004, at B1.
- Pew Internet & American Life Project, Pew Internet Project Data Memo (May 2007) (full-text).
- Canadian Task Force on Spam
- CAN-SPAM Act
- Comment spam
- Keyword spamming
- OECD Task Force on Spam
- Relay Spam Stopper
- Search engine spam
- Securing Your Server: Shut the Door on Spam
- "Spam": An Overview of Issues Concerning Commercial Electronic Mail
- Spam Act 2003
- Spam blog
- Spam filter
- Spam honeypot
- Spam refrigerator
- Spam run
- Spam Summit: The Next Generation of Threats and Solutions
- Spam zombie
- Spamhaus Project
- Stopping Spam: Creating a Stronger, Safer Internet
- The Role of Internet Service Providers in Botnet Mitigation: An Empirical Analysis Bases on Spam Data
- Undertaking Spam, Spyware, And Fraud Enforcement With Enforcers Beyond Borders Act of 2005
- Wireless spam