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My annoyance has been growing with the amount of spam in my e-mail In box, an amount that has undergone an astronomical increase in the last year. This spam is both utterly unwanted and often disgusting. Why, I ask myself, should I and innumerable other users be harassed and inconvenienced by a mob of unscrupulous marketers (or maybe racketeers) using spam as their weapon of choice? (The other question is: Who buys any of the stuff being purveyed? But somebody must or the spam wouldn't keep coming.) I tried adding filtering software, but the software seemed suspicious of everything and slowed my computer to the point where I opted to return to the punishment of spam.

Then a graphic designer sent a change of e-mail request with the following explanatory note, "I've had an average of 230 spams a day so I have decided to change my e-mail address. I will still check the old account from time to time." It struck me that I was receiving almost as much spam as he was. I started to think about the process of deleting the spam. Part of the problem, of course, is that the spammers can't be reached, so pleading, appeals to reason and threats of violence have no chance of working. I fantasized about creating a program to attack the spam sites or a virus that would infiltrate their computers, escape into their homes, eat everything in their refrigerators and output a scarlet S on their foreheads that would be visible as they drove their Mercedes to their banks. But even so mild a suggestion to my computer guru as the idea of only accepting e-mail from people I know and sending an automated message to everyone else to contact me by fax or phone if they had a legitimate reason seemed to pose hidden dangers. The guru advised me that the reply message could end up generating reply messages back and this ricocheting could build to the point where incoming e-mail would overwhelm my computer.


One of the last acts of former California Governor Gray Davis was to sign a law that forbids the sending of most commercial e-mails except to people who have explicitly requested them. It applies not only to companies within California, but also to outside companies that send junk e-mail into California. The penalty is $1,000 per e-mail up to a maximum fine of $1 million per campaign. Private law-suits are permitted, which will give attorneys an incentive to go after spammers (a similar provision helped the effectiveness of the federal anti-fax law). California's approach is forceful, since most other states with laws relating to spam and the federal proposals for such laws allow spam unless the recipient demands that the spam cease.

No doubt there will be constitutional challenges to the California law in much the same way that challenges are now being mounted to the federal law creating the do-not-call registry. If 50 million people have already signed up for the protection of the do-not-call registry, imagine how many would prefer not to receive spam. Since this would probably include almost everyone, the California approach seems to be ideal. And, while some tinkering may be required, the California law and any related federal law should overcome constitutional challenges in the same way that the California resale proceeds law (which gives artists a percentage of the sale price when art is resold) was upheld. In Morseburg v. Bafyon the federal court concluded, "Not only does the California law not significantly impair any federal interest, but it is the very type of innovative lawmaking that our federalist system is designed to encourage."


Ignoring the impact on my peace of mind and focusing instead on the cost in wasted time, I figured out that deleting several hundred spam e-mails takes about ten minutes. Assuming I only do this on working days (to err on the side of caution), this 10 minutes a day became 2,600 minutes per year—or 43.33 hours, just a little over a working week. That startled me. Dividing the wasted week by 50 working weeks, I realized that 2% of my time was spent deleting spam. What had happened to the wonderful tool that collapsed vast distances far more easily and efficiently than the telephone or fax?

If my productivity had fallen by two percent, and if I were merely a typical sufferer and not a unique magnet for spam, then all workers were experiencing the same productivity loss. This seemed odd, in view of the economy's substantial gains in productivity during the "jobless recovery," but I had to conclude that the productivity gains would have been even greater without the malevolent impact of spam. According to the C.I.A.'s Web site, "The U.S. has the largest and most technologically powerful economy in the world, with a per capita GDP of $37,600." That means that for each person in the United States, our economy produces goods and services worth $37,600. If spam causes a 2% loss, then its cost per person is $752 per person per year. Since the C.I.A. estimates the 2002 GDP at $10.4 trillion, the 2% loss due to spam costs $208 billion per year.

At first I thought this was a trivial amount, not even half enough to close the projected federal budget deficit. But then I recalled that Ben Franklin (the jovial presence on our $100 bills) said, "Little strokes fell great oaks." If $208 billion (and a lot of irritation) is too much to pay so evil spammers can enjoy their free freedom to spam, what should be done about it? Perhaps a federal law modeled on the California law would make the most sense, although an attractive alternative idea has been to impose a small cost on the sending of e-mail. If, to take a guess, 20 billion e-mail messages are sent every day in the United States, then a tax of one penny per e-mail would raise $200 million daily. Multiplied by 365 days, this potent revenue source would augment the federal coffers by $73 billion annually. Raise the tax to eight cents per e-mail and the projected federal deficit would be a surplus again. Would I object to paying eight cents per e-mail to wipe out the federal deficit? Not at all! I'd be happy to, because I send about twenty e-mails daily. The cost to me would be $1.60 per day or $584 per year. The benefit, of course, is that it would put an end to spam, and the $584 per year would be less the lost productivity of giving a week of working time to the spammers. (You may quibble and say: But if the tax puts an end to spam, and spammers send most of the e-mail, then there won't be enough e-mail being sent any more to have the tax wipe out the federal deficit. I have to admit that the benefit is either/or—either wipe out the federal deficit or eliminate spam, but not both.)

In the meantime, I decided to deal with spam by only allowing e-mail from people I know to come into my In box. This places all the spam in the Trash. I have to skim the Trash before I delete it, but it's probably cut my lost productivity by two thirds. If everyone else follows my stellar example, the individual gain in productivity will be worth $500 annually and the annual gain to the national economy will be roughly $138 billion. While it's true that these numbers are rough estimates and based partly on guess work, the magnitude of them suggests the magnitude of the spam problem and the importance of finding a solution.


Feeling some concern that critics of my e-mail tax proposal would castigate me both for raising taxes and hindering the freedom of spammers to annoy everybody, I thought of a more subtle approach based on the recent lawsuit pitting Fox News Network against author/comedian Al Franken. In 1998 Fox had trademarked the phrase "fair and balanced" to describe its news coverage. Franken, in his book Lies and the Lying Liars Who Tell Them, had used the subtitle A Fair and Balanced Look at the Right (and also used a photo of Bill O'Reilly, a Franken target, on the cover). Fox sued Franken and his publisher, Penguin, for trademark infringement.

In this Fox strategy I saw an opportunity to pre-empt the spammers by some clever legal maneuvering. If Fox could trademark "fair and balanced," surely I could trademark "spam" and certain other words—such as "larger," "cheap," "boost," and "buy"—until the spammers would have no words left to use in their message lines and, in fact, wouldn't even be able to talk about their activities without infringing my trademarks on "spam" and "spamming" (unless they resort to euphemisms).

Imagine my disappointment when a federal judge in Manhattan literally laughed Fox out of the courtroom. Describing the Fox lawsuit as "wholly without merit, both factually and legally," Judge Denny Chin said a reader would have to be "completely dense" not to realize the cover was a joke and, in any case, "fair and balanced" is so commonly used that it can't be trademarked. This was a fair and balanced victory for those who value the First Amendment, although it was a severe setback to my plans to solve the spamming problem through the use of trademarks. Also, I have to believe—even though I'm not usually an advocate of conspiracy theories—that Fox and Al Franken must have been working together to generate huge amounts of mutually-beneficial publicity. Franken's book quickly leaped to the top of the bestseller list as the initial print run of 270,000 copies was augmented by four additional printings that brought the total number of copies to well over half a million.

Both spam and trademarks raise issues about freedom. In a society that places a high value on freedom of speech, why should Al Franken be able to use the words "fair and reasonable," but spammers be prevented from expressing themselves through commercial speech in the form of billions of spam e-mails? Of course, speech that has political content and expresses opinions deserves a higher level of protection than commercial speech. Beyond this, however, if you hate what Al Franken has to say, you have a simple remedy—don't buy his book! He isn't coming into our living rooms (or our computers) and speaking in a loud voice despite our desperate pleas that he quiet down. Spammers, on the other hand, are annoying us, wasting our valuable time (and, therefore, money), and saying nothing that needs to be protected. Enough is enough, let's hope the federal government decides to follow California's example by enacting an opt-in (as opposed to an opt-out) law with respect to spam.

Editor's note: After this issue had been sent to the printer, the House and Senate passed federal anti-spam legislation that President Bush is expected to sign. The new law should take effect on January 1, 2004.


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