Why legislation on spam is not only unnecessary but dangerous

THE battle against spam - unsolicited commercial e-mail - is all but over: spam has lost. You wouldn’t know it, however, from the way lawmakers around the world are now dashing to combat spam, and solemnly swear that this nuisance will be eliminated.

In the United States, the first federal anti-spam legislation goes into effect on 1 January. In our native Sweden, lawmakers are also debating how unsolicited e-mails should be handled, and more nations in the European Union are following suit.

The reason for the legislative crusade is obvious: few things make otherwise-calm people (and voters) as irate as the mere mention of spam. This is understandable, given that the sheer volume of spam has increased to such a degree that certain research institutes say that more then half of all e-mails on the global communication networks are spam.

Everywhere the same description of a world vainly struggling against spam is given, and everywhere the same calls for regulation are heard. The irony is, within five years we predict that spam will no longer be a problem. But laws against spam will still be there, and will have a negative effect on e-commerce and commercial freedom of speech.

Today, an increasing number of corporations install various kinds of filters and spam stoppers that make it possible to reduce the amount of spam significantly. In the Pew Internet and American Life Projects study on spam, 40 per cent of the users reported that they did not receive any spam mail at all in their workplace. When workplaces to a larger extent install filters and other technology, and such technology is standardised and incorporated in popular e-mail programmes (Bill Gates recently announced at Comdex that spam filters will be incorporated in Microsoft’s Outlook), the electronic junk mail will gradually be eliminated.

Certainly there will be attempts at fraud where e-mail is used as part of the crime, and certainly there will be a risk of someone committing hate crimes through e-mail. But these crimes should be fought with existing penal codes, not with laws specifically targeting spam.

The EU, the US and the OECD are providing us with pointless legislation just at the point at which the market has started to handle the problem. What we really require is time: time for the technology to develop, time for the users to accustom themselves with the new protective measures, and time for the entire spam phenomenon to extinguish itself. Legislation will not make any difference at all regarding the volume of junk mail, but it will make a difference for those companies that try to market their services and products legitimately. They will get hit with significant transaction costs when trying to adapt themselves to a gigantic body of regulations concerning who gets to send e-mails to whom, when e-mail may be sent, and what content is allowed.

The draconian legislation that is now being formulated is certainly not easily read and understood. Take, for instance, the new Swedish bill. It proposes a prohibition of sending unsolicited e-mails except where the recipient is a previous customer and the products advertised are similar to those purchased in the past. In Sweden, MMS and SMS is also defined as e-mail.

So, under this law, will the "welcome" messages we receive in our cellular telephones abroad be allowed? One seldom explicitly approves of receiving a message from the local operator, but it certainly is practical to know what functions are actually available in that particular country. This is just one example of the unintended consequences and uncertainties created by anti-spam laws.

Interpretations of EU directives and national laws will also vary among the nations, and the companies that want to make business in the common market will thus have to adapt to a plethora of interpretations of the European legislation.

And to what purpose? The legislation is unnecessary, and the only reason that we today see the lawmakers rushing new anti-spam legislation is that they probably have made the same analysis. The politicians know that spam will disappear as a result of technological development, and are now vying for a bit of the glory for eliminating the spam nuisance. In five years’ time, the electronic junk mail will be gone, but the junk laws will still be there.

We should be more worried about getting spammed by laws than by e-mails. E-mails can be easily erased. Try doing that with legislation.

• Waldemar Ingdahl is the director of the Swedish think-tank Eudoxa. Nicklas Lundblad is managing director of Stockholm’s e-chamber of commerce.