Efforts to Stamp Out Spam
Face Problem of Definitions

Senators want to ban it. Internet-service providers want to keep it from clogging up their networks. And consumers just want it out of their e-mail boxes.

"It" is spam, or unsolicited commercial e-mail, and by many accounts it's spiraling out of control.

But while nearly everyone agrees spam is a nuisance, one thing they don't agree on is what actually qualifies as spam -- and that's a key problem in figuring out how to stem the tide, experts say.

MORE ON SPAM 1 Read continuing coverage of the FTC spam conference, plus related news, at wsj.com/junkmail2.

"We're talking about building consensus to solve the problem, but there isn't a standard definition," says Eytan Urbas, vice president of MailShell, a Santa Clara, Calif., company (http://www.mailshell.com/³) that makes spam-fighting software. "It's hard to solve any problem that you can't define."

MailShell knows this firsthand: Its own customers disagree about what's spam and what isn't. Ninety-seven percent of the 1,118 MailShell users who responded to a March survey said random commercial e-mail that promoted pornography or unwanted business opportunities was spam. But more than half of those responding to the survey also branded unwanted e-mail sent by companies they've bought from in the past as spam -- a definition the companies and well-established marketers would hotly contest.

MailShell's customers were also asked if, by their own definition of spam, they'd ever bought an item advertised in an unsolicited e-mail. More than 8% of the respondents said they had, while 28% said they'd replied to an e-mail they considered spam.

Those response rates strike some experts as high; after all, part of the reason Internet users are drowning in spam is the pitiless economics of unsolicited commercial e-mail. Spammers can live with response rates that would put offline junk mailers out of business: By some estimates, a spam campaign can make money if just one in 100,000 messages gets a response.

Fighting the Flood

Most people choose to ignore spam, says Jason Catlett, president of Junkbusters Corp. (http://www.junkbusters.com/⁴), a consumer and privacy-advocacy firm in Green Brook, N.J. Studies show that nearly 90% of e-mail users simply hit the "delete" button when they receive spam, he says.

One thing is clear: Spam is a growing problem. More than 41% of all e-mail is spam, according to BrightMail, a San Francisco maker (http://www.brightmail.com/⁵) of antispam software -- up from just 8% in mid-2001. Fighting this flood of messages costs U.S. corporations nearly $9 billion and accounts for $4 billion in lost productivity each year, according to a January report by market-research firm Ferris Research. How to fight this scourge will be a focus of a three-day conference in Washington hosted by the Federal Trade Commission beginning Wednesday.

Spam is eating away at the bandwidth of companies such as Deep Sky Technologies, a Vero Beach, Fla., Internet-hosting company (http://www.deepskytech.com/⁶). Steven Willis, Deep Sky's president, says half of the bandwidth his company uses is taken up by spam being sent to his customers.

Mr. Willis says the tide of unwanted e-mail his customers are seeing is rising by about 1% a day, meaning he expects Deep Sky will have to buy more bandwidth within 18 months.

"It's sucking up so many resources it's going to start shutting people down," Mr. Willis says.

Mr. Willis has developed tools intended to let his customers cut spam down to size, but creating a one-size-fits-all standard runs up against the question of definitions again: One person's spam is another's golden opportunity.

"It's not a value judgment, it's not a free-speech issue," he says. "This is the end customer who is saying it's spam."

Telemarketing Redux?

In trying to define spam, the FTC and Congress are likely to look to state laws governing unsolicited commercial e-mail, as well as to other consumer-protection statutes developed in recent years, antispam advocates say.

For example, California's antispam law defines unsolicited e-mail as messages advertising goods or services for sale, lease, sale, rental, or extension of credit that are sent to a recipient with whom the sender doesn't have an existing relationship and aren't sent at the request of the recipient.

Existing rules about telemarketing could provide another starting point.

Mr. Catlett notes that the Telephone Consumers Protection Act says that for a company to solicit a consumer, an established business relationship must be based on the exchange of money -- simply registering at a Web site or asking for a catalog wouldn't meet the standard.

"The best thing that would happen is if the legislation specified a strong high bar for an existing business relationship" with spam, too, Mr. Catlett says.

Keeping the emphasis on consent and not the content of the unwanted e-mail is critical, says Ted Gavin, treasurer of SpamCon Foundation, a San Francisco-based antispam group (http://www.spamcon.org/⁷). For example, former California Secretary of State Bill Jones found himself in hot water last year when his gubernatorial campaign hired an outside marketer to send more than a million spam e-mails, which were routed through a Korean elementary school's server. Many of them reached people living outside California, who then complained.

"The key is that it really does have to be with the consent of the recipient beforehand," Mr. Gavin says. "Otherwise it's like you're writing something on a brick and then mailing it to someone postage due."

Write to Stacy Forster at stacy.forster@wsj.com⁸.

Updated April 29, 2003 6:01 p.m.