Libertarian Approaches to Addressing Spam
by Steven Cousineau
[email protected]

Exclusive to TLE

This morning I processed about 150 e-mails. The 50 good ones were from friends, co-workers, legitimate business leads, and one headhunter. The balance, 100 bad ones, were unsolicited commercial e-mails commonly called "spam." [Hormel asks that we not use their all capitalized spelling to refer to ubiquitous unsolicited e-mail and poorly targeted cross posting.] It takes me about 30 minutes to sort that much email and fire off the appropriate quick replies. It used to take me at least twice as long, but I've started using filtering software. I love the communication freedom in email, but it is costing me time and materials to maintain. As Libertarians we accept there are some costs to freedom. But a full and time wasting email in-box need not or should not be one of those costs. To add insult to injury I'm trying to justify the benefits and costs while my copies of "The Libertarian Enterprise" are getting routed to the spam bin. This led me to start thinking about how we as Libertarians can address spam beyond putting "spam blocks" in addresses.

I am going to start by applying the concept that "A libertarian is a person who believes that no one has the right, under any circumstances, to initiate force against another human being, or to advocate or delegate its initiation." [L. Neil Smith] Unsolicited commercial email forces its way into our in boxes and then forces us to process it. Since spam email is essentially cost free to the sender especially as the number of e-mails sent increases, it can be far more intrusive than the bulk snail mail model to which it often compared. Bulk snail mail has costs for each additional letter sent. My brother, a computer engineer, suggested just charging for the origination of e-mail as a solution for spam until I asked him to explain how and who'd he charge. His suggestion until he thought about an additional two seconds was to put a taxing firewall on all Internet communication lines. I suspect he then realized that the power to tax is the power to destroy. The only other government based alternative is laws that will probably be both ignored and ignorant. I still get a pile of spam and so far twenty (20) states have laws addressing spam [see http://www.spamcon.org for tons of details]. Laws on the Internet to date have only worked where all of the participants agree on the necessity of following the law. This is similar to a cartel, such as OPEC, and there is a significant reward to gaming (or shall we say misleading ones fellow players and selling or sending on the side) which then provides additional profits. The Internet is large enough that significant collusion is unlikely.

We've come back to individuals having to shoulder the cost of protecting their email account from intrusion by either keeping it private (unpublished) or filtering. Both of these are more aggressive than traditional "caveat emptor" as the buyer being 'ware assumes both parties have some knowledge of the other and rests upon the assumption that there is some transaction cost for both sides. The digital anonymity of the Internet offers much room to hide, minimal failed transaction cost, and an incredible degree of increasing economy of scale. While these can be beneficial in some discourse, they provide an environment where the signal to noise ratio drops low enough that filtering out noise becomes costly. In the long run it is possible that spam e-mail might go away as the industry has got to provide very limited margins. Direct snail mail is a low margin business. Until the business model fails though, which it may not, we must still address the time wasted. Intel Corp. is suing Ken Hamidi for this using a legal concept called "Trespass to Chattels" which still tied up in court [http://www.intelhamidi.com] and may set some new precedents. Ken Hamidi says he is exercising free speech while sending email to each Intel employee and Intel says he is trespassing.

My system administrator suggests that "in a few years people will just go to all white lists where only people whom they know or who respond to a request to add their email to the list will get through." If he is correct that is not why I have an email address. I have an email address so that people who are looking for me digitally may find me. An email address is less flexible with such heavy filters and pre- screening like the white list than it is when it takes all callers or senders. However, the cost of some sort of filter may be a necessary element in maintaining the freedom of open communication that e-mail provides. Using Spam Assassin [http://spamassassin.taint.org/], as I am presently running, is one step in that direction as it puts email into either a good or spam in-box. Due to the small number of false positives it has, I still manually delete each spam individually. There are some issues in running such filters or databases of known/suspected spam such as the legal issues described at www.orbz.org. At another email address I use, the firewall blocks much spam using a variety of techniques, but comes with high maintenance costs in the form of a corporate IT department.

So far I've not found good estimates of the economic cost of spam, but that is on my list of research to perform. With the number of people investigating and bothered by spam there is soon to be a cost and associated uproar. Given the significance of such costs, the political attraction of saying "look what we've done," and the historic legal precedents regulating commercial speech it is likely we may soon see legislation attempting to regulate the free speech that is at its worst exemplified by spam and at its best shown in the newsletter carrying this analysis. I hope such is more a reaction of frustration at receiving pornographic solicitations or 2/3 or one's in-box as spam rather than a desire to regulate free speech. However, such legislation is likely to be as effective as the war on drugs so we must still look for private solutions. I picture such legislation requiring that people opt-in to receiving spam in some sort of public listing. Less than scrupulous vendors might then add peoples' email addresses to the list without authorization in a form of digital identity forgery. I can not think of any rational reasons to give the government control of my in-box or your out-box. That would be an digital initiation of force.

Email is in one sense a contract for continuous communication, if one side opts out, there should be a cessation of contact after reasonable attempts to followup. Most spam violates this as no matter how many times people try to unsubscribe, it fails as the spam purveyors have thus verified the email address as valid. They are thus breaking the bi-directionality of the contract for communication. All activities have varying benefits and costs which create difficult analysis challenges as it is impossible to do just one thing. If we assume that e-mail is contractual communication and one's email address is private property, the spam originator might be held liable for civil damages for the time and materials spent to process the intrusion. See Intel v. Hamidi above and where Intel owns the in-box of the email account, they may have a property right to protect.

There is an entrepreneurial opportunity for somebody willing to take the heat in forming a "fair digital communication cooperative." The cooperative could supply some necessary products: (1) A list of verified spam originating domains; (2) Unique and non-governmental digital identifiers involving encryption that identify the originator of email as following certain pre-determined guidelines against unsolicited bulk commercial email. These identifiers would be similar to the white lists above.

Right now, I'll continue using the filter on my email as it saves me time. When my email provider finds the spam email coming in to be burdensome on the system, we'll have to come up with another solution. I trust technology and Libertarian minds to adapt to this changing environment.

Copyright © June 5, 2002 by Steven Cousineau

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