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Fred Showker reporting

Day Three of the FTC Spam Forum

Washington, D.C., May 2, 2003

The third and final day of Spam Forums is now complete -- rousing turn of events lighting fires in the hearts of all those present who feel that having your email box bombarded with unsolicited email is wrong. The crowd had increased again, and everyone was ready to bring it all together.

The day opened with an insightful and moving talk by the Honorable Commissioner Orson Swindle, FTC. I shall paraphrase since I didn't get it word-by-word and I haven't been able to analyze the tapes yet:

commissioner He reflected on how they began the process of bringing together the forum, and the things that motivated himself to become deeply involved in the movement. And, to my great delight, he seemed to be alone amongst all the speakers so far who actually have a clear and committed vision of the true consequences of not doing something about spam -- NOW. He recognized the conspicuous absence of an important ingredient at the forum: the consumer. (Which I applauded openly.) He stressed the urgency to all ISPs, Lawmakers, and, yes, even the spammers, to do something NOW that would relieve the pressure in the end user's mail boxes.

"With 100,000,000 end users, email is the only true universal 'killer app' -- but end users are fed up, by the millions. Something's wrong when I can't move my address list into my white list with a click -- it's as if they don't want to fix the problem."

The talk was interrupted with spontaneous applause when he openly declared that "Technology and industry, and, yes, the marketers, have been reluctant to empower users," he chided, looking us each and one straight in the eye, "We have been so obsessed with growth, we've forgotten about security and service to the consumer." BRAVO!

He continually called to the industry to "empower the consumer" with the tools, and knowledge to protect themselves, and begin relieving the smothering onslaught of UCE. He went one step further saying it's not just spam -- it's grown to the porportion of national security. ALL nuisance email from the casual forwarded joke list to the most insidious forms of crime need to be dealt with, and dealt with NOW. He further cautioned that the fight to make email clean and useful again is not a destination, but a journey of twists and turns that would be in continual change. And that there is no single, simple solution to this highly complex problem -- but rather solutions to be found in a mixture of technology, industry, legislature and end users all working together.

I'll say again -- that throughout two days of rhetoric, some insightful, some merely blurred, empty rhetoric, the Commissioner's was the most lucid and truly understanding talk I heard during the entire three day event. While the legals and technos squabble over this or that point, absolutely no one could contradict nor argue any of Swindle's points.

Federal and State Legislation

Now, we arrived at what I think is the "meat and potatoes" of the entire forum. It's the reason I came. It was moderated by Eileen Harrington, Associate Director, Division of Marketing Practices, FTC, and one of the chief proponents of the forum all three days. Joining her were Ray Everett-Church, Counsel, Coalition Against Unsolicited Commercial Email; Paula Selis, Senior Counsel, Washington State Attorney GeneralŐs Office; Charles Curran, Assistant General Counsel for America Online; John R. Patrick, Chairman, Global Internet Project; David E. Sorkin, Associate Professor of Law, The John Marshall Law School -- and yes, Jerry Cerasale, Senior Vice President, Direct Marketing Association and Steve Richter, General Counsel, Email Marketing Association. The panel became a legal battlefield. (IMHO)

While the attorneys sparred with the marketers on this or that fine point of law, the overwhelming question they seemed to be wrestling with was "Will legislation be effective?" and "Is it worth the time and cost to tax payers?" They all agreed that something should be done, but none could agree on anything else. They all attacked state laws as a widely diverse "patchwork" of poorly written and implemented legislation. There are 29 states with legislation, and this panel seemed to agree they are all ineffective. They cited the recent law in Utah which has become a nightmare for the state with 1,700 class action suites brought by several law firms, the plaintiffs of which are all employees of the law firms, with $10 paid to each plaintiff, and hundreds of thousands claimed by the law firms. One panelist called it a "Lawyers feeding frenzy." Others chimed in that we cannot allow this to continue, the Feds need to step in.

All except one were in complete agreement with a national "Opt-Out" list. While no one knows how this would be implemented, or who would implement it, they all realized it would be a nightmare. Curran (AOL) asserted that while we desperately need federal legislation to curb the fraudulent and criminal spam -- the challenge seems almost insurmountable -- calling it a "diffuse cloud of packets" to be tracked, logged and analyzed.

They all seemed to agree that it is dreadfully wrong to force messages on consumers at little or no cost and that the consumer desperately needs a "Private Right of Action." This, to me is essential, and exactly what our State of Virginia has done with our new "Anti Spam" law, enacted last week. "Private Right of Action" empowers the consumer to pursue damages from the spammer quickly, and at low cost. A federal law would make this happen, where state laws [some said] are worthless because of jurisdiction problems. (Where was the crime committed? The sending state, or the receiving state? Where and who would litigate?)

There was one voice on the panel opposing the legal approach to the problem. He reinforced a premise I've felt for some time: "Federal law cannot work". John R. Patrick, Chairman, Global Internet Project, pounded away at the need for the industry and technology to provide the solutions NOT CONGRESS. "You can't rely on a patchwork of state laws and brutal federal laws when you can't specifically identify who sent the message or where in the world they might be." Ray Everett-Church (CAUCE) backed him on that assertion, citing server "farms" in China, and the fact that CAUCE has been crying for action since 1997 -- to this day, ignored by Congress.

This session squashed my enthusiasm for the rest of the day. It underscores the total chaos and confusion about spam in high places. Those people who are actually in important places, who could actually do something about it are so lofty and politically charged, they can't see the forest for the trees. It was obvious the legal bantering could continue --unproductive-- for literally years. They either didn't hear, or had forgotten the words spoken earlier by the Commissioner. The two lone voices of Church and Patrick were daunted, even ridiculed, by the legal faction. And they were the only two who seemed to actually get it.
Dim hopes from the legal community.

The International Scene

Korea The next panel completely changed the entire complexion of the day. The tone was a welcome change -- but the message wasn't. We now heard things we didn't want to hear. Coming forth were representatives from Korea, Japan, Australia, Canada, and Europe, the five next largest internet users in the world.

Now the tone became quiet, and dignified. Highly dignified. Dr. Hyu-Bong Chung of the Korean Information Security Agency first outlined the measures Korea was taking to fight spam. His voice was soft but articulate -- each word being carefully metered. I thought he must have studied Teddy Roosevelt who said: "The best way to get people to listen is to speak softly. They lean closer to hear." And, that's what we all did. You could hear a pin drop in the room.

Both he and Motohiro Tsuchiya, Associate Professor and Senior Research Fellow, Center for Global Communication for the International University of Japan, echoed severe penalties for sending UCE in their countries -- very high penalties, and in many cases imprisonment. These guys weren't playing around. It seems the Asian culture looks upon fraud, theft, and outright offenses to society like pornography as not only crimes against the citizen of their countries -- but an affront to the family, and to the country itself. "Disgraceful behavior" Chung called it with a sort of bitterness in his voice. American spammers should listen to these people and understand what they're doing in the eyes of other cultures.

All panelists gave a rundown on what their countries were doing, and both openly embraced, and pledged assistance to the U.S. in what actions might be forthcoming. They all had unfortunate statistics. Japan's rate of spam from the U.S. growing last year by 700%. It was not a proud time to be American. All the foreign delegates agreed that the American spam is by far the biggest problem -- it is in English, and is choking their systems. Tsuchiya pleaded, "Our people don't yet even know what this is. Most can't even read English." Tsuchiya and Coroneos (Australia) both asserted "Our people are learning the ways and culture of Americans through your spam." Which brought a few nervous chuckles from the crowd. To me, this was most infuriating and embarrassing -- that they must think all Americans are tired, broke, impotent, and have a deficiency of vitamins and short appendages! Spam in no way makes America proud.

This only underscored and made more urgent the need to take action NOW. To set in motion whatever measures are necessary to curb the plague in our own mailboxes -- that which is violating email users all over the world.

This is getting too long -- the following two sessions seemed only to restate most of the information that had already been covered, Litigation Challenges, and Technology issues. So I'll report on those in another edition.

Impressions

My overall impressions from the three day event were
  • Everyone (even in high places) finally realizes UCE is a true threat to the internet and global society at large
  • UCE can and will cripple the awesome potential of the internet if not stopped
  • It is seriously undermining America's leadership in technology
  • Very precious few actually understand what it is
  • No one agrees on what should be done
  • No one agrees on how to do it -- beyond the challenge of more investigation and, of course, more talk.

I know. Nothing you didn't already know, right?

I came away about 50/50% feeling on one hand like a defeated soldier and on the other hand like a wired soldier ready to go into battle. Having been crushed in Thursday's obvious upper hand of the "marketing" community, I was resuscitated by Swindle's awe-inspiring talk, and the panels on Litigation and International Perspectives. I cannot speak for others, but I have a feeling of resolve that now the consumer's voice will be heard, and we are now going to move forward -- albeit slowly.

I also came away with a true resolve to continue growing and evalgelizing the cause throughout the User Group community. That's where the grass roots will hit the pavement and make material progress. While they discuss it in high places, I believe "the people" can actually get going and do something about it.

Fred Showker This morning I met the third Mac user in attendance -- who commented "Isn't it nice we Mac users don't have to worry about much of this!" And I thought to myself, "Yes it is!" However, after hearing the delegates from Korea, Japan and United Kingdom, I reaffirmed my long-standing premise that platform, race or nationality have nothing to do with this. It's a problem for technological humanity -- one we should all take seriously.

And that's my report for May 2, 2003.

END


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