Junk email burdens US profits

To date, the Republic has paid very little legal attention to one of the sorest subjects on the Internet: spam.

Spam is unsolicited commercial email. In other words, email which arrives in your in-box advertising various products and services, most frequently for get-rich schemes or pornography websites.

So far, Ireland hasn't been subjected to the kind of spam onslaught suffered by Americans, where junk email has become a serious concern for businesses. Not only does it clog up company servers, the large computers which act as administrators for email and computer files, but employees complain they waste much work time throwing out such online trash.

The size of the problem is truly mind-boggling. America Online, the giant Internet service provider (ISP) in the US, says that up to a third of the 30 million email messages arriving in its system every day is spam - a mind-numbing 10 million pieces of daily junk. EarthLink, a Los Angeles-based ISP which serves the entire US market, says it has five people who are employed, full-time, to do nothing but filter out spam from its servers.

Irish ISPs also report that spam is an operational problem for them, and have people screening for junk email daily. Like most global ISPs, their first defence is to use filtering software to root out some spam automatically. But a non-human agent can only catch so much, which is why keen eyes are needed as well.

All of this, of course, costs money, resources and time. At the ISP level, this affects the cost to the consumer and business for Internet connectivity. For businesses, there is also a cost in productivity. This may seem a minor concern now, but if the Republic succeeds in becoming an e-commerce centre, expect spaming to reach the US's plague levels.

Unfortunately, new Net technologies promise to make the problem even more nightmarish. Email soon won't just be text anymore - programs already exist which allow users to attach a video or sound file. As these become ubiquitous, imagine the download delays. Most email programs require a user to download all messages when an Internet account is checked for email, so you'll have no choice but to wait, and wait, and wait until the fat files come through along with your "real" email.

In the US, Congress is debating several bills which attempt to place some legal constraints on spam, but it's a tricky area. In many ways, the Internet remains a legal wild west, because laws haven't been altered to specifically recognise online behaviours, actions or content. Spam has no specific legal status and therefore can be difficult to fight against in the courts or the lawmakers' decision rooms.

Bizarrely, successful prosecutions against spamers in the US have utilised property laws for structuring a case. In this approach, spam is presented not as unwanted pieces of junk mail but as a form of trespass on personal property (in other words, email is sent without invitation into a person or business's property - a computer). Because of free-speech constitutional guarantees, legal experts are wary of any system of blocking email which might be construed as censorship.

Many US lawmakers and lawyers believe ISPs themselves are the best bulwark against spam, while also having the greatest motivation for trying to control it - it's the ISPs' servers which will crash from the overload if spam continues to proliferate. So the bills intend to give ISPs the right to prosecute spamers if they fail to meet various guidelines. The most promising approach so far, some argue, is a new California law which allows ISPs to fine spamers, at up to $20,000 a day, which do not have an agreement with the ISP for sending spam. The California law tries to steer around clashes with privacy laws and first amendment rights. This gives it some needed teeth. The law throws in interesting market constraints on ISPs as well. An ISP's customers could vote with their feet if they didn't like their ISP's spam policy. Yet if consumers like the notion of receiving a discount from an ISP in exchange for receiving some selected email, they'd have that choice too.

It's an idea worth examining, along with the alternatives. As the government shapes its Internet policy, a legal approach to dealing with spam needs to be implemented. And of course, the time to be shaping it is now, in advance of the unavoidable deluge.

Karlin Lillington is at karlin@indigo.ie