“CAN-SPAM Didn’t” Survey Says

After almost a full year of living under the foresight of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, a survey by MX Logic cleverly declares that “Can-Spam didn’t.”¹

According to MX Logic’s home page,² 83.06% of all emails transiting cyberspace now are spam. That’s a lot of spam to clog up your inbox.

Sen. Conrad Burns (R-Montana) doesn’t seem to get it either. According to his spokesperson, Jennifer O’Shea:

Senator Burns has said from day one that enforcement is key for this legislation to be effective. We have seen several big lawsuits, which have been helpful, but we need to continue to see more of these lawsuits in order to keep up with big time spammers and keep spam out of inboxes.³

A significant strengthening of the statute is needed to combat the spam problem. While I am technically a service provider and can sue spammers under the statute, you probably are not. Sen. Burns claims that he wants massive enforcement to make the legislation effective, but the statute precludes you, the recipient, from having a cause of action. That reduces the possibility of someone stepping up to the plate and enforcing the law. If fewer people can enforce something, then you should expect enforcement to be a problem.

Additionally, it’s not the big-time spammers that are a problem anymore. Yes, they can pump out massive amounts of spam, but they are being blocked. The problem now is that smaller time groups are trying to start at this, thanks to the legitimacy conferred upon “compliant spam” by CAN-SPAM. For example, consider this one that I received today:

Received: from 221.146.130.94 (c-24-30-38-36.mw.client2.attbi.com [24.30.38.36])
by gandolf.whizardries.com (Postfix) with SMTP id 63927108AFF
for [redacted]; Wed, 22 Dec 2004 05:34:18 -0600 (CST)
Received: from pi.orthogony.net (pi.orthogony.net [66.13.46.195]) by midsouth.com.mail8.psmtp.com with smtp; Dec, 22 2004 2:21:53 AM +0700
From: John Marshall [jmarshall @sepreview.com]
To: [redacted]
Subject: promoting your site
Sender: John Marshall [jmarshall @sepreview.com]
Mime-Version: 1.0
Content-Type: text/plain; charset=”iso-8859-1″
Date: Wed, 22 Dec 2004 03:34:17 -0800
X-Mailer: Microsoft Outlook Express 5.50.4133.2400
Status: RO

Your website can get more visitors with proven search engine placement. Promoting a website can be
tough. Let us help with the confusion. If your website is not listed at the top and you’d like it to be, send
us a reply with your website address and contact info. We can help.

John Marshall
Listing Solutions
Santa Clara, CA

This is a non-compliant spam. If you notice the second received line, you’ll see that it has absolutely nothing to do with the first received line. It’s a forgery. But I can’t do anything about this one. There aren’t enough damages to go forward with an enforcement suit.

And until Sen. Burns decides that my ability to enforce a statute is more important than “John Marshall’s” ability to “fly under the radar” this statute will continue to be known as the “You CAN-SPAM Act.”

Footnotescontent

1. Paul Festa, Can-Spam Didn’t, Survey Says, News.com (2005), https://web.archive.org/web/20050421190643/http://news.com.com/Can-Spam+didnt%2C+survey+says/2100-1030_3-5506976.html?part=rss&tag=5506976&subj=news.1030.5 (last visited Dec 30, 2004). ↩︎
2. MX Logic, Homepage, (2004), https://web.archive.org/web/20041229040936/http://www.mxlogic.com:80/ (last visited Dec 30, 2004). ↩︎
3. Grant Gross, PCWorld.Com – Is CAN-SPAM Working?, PC World (2005), https://web.archive.org/web/20050103120501/https://www.pcworld.com/news/article/0,aid,119058,pg,1,RSS,RSS,00.asp (last visited Dec 30, 2004). ↩︎