Top ten reasons not to regulate non-bulk E-mail

A fair amount of debate on the issue of junk E-mail (Spam, Spume etc.) has involved the question of the definition, and in particular, whether mail must be volume or "bulk" mail to be considered abuse of the net and worthy of punishment.

This question is important no matter how you seek to go about fighting the spam problem -- with laws, or contracts or internal net rules. However, many have advanced solutions which put rules on even a single piece of personally written E-mail. One highly talked about one is the bill H.R. 1748, which declares "Unsolicited Commercial E-mail" unlawful, and makes a power to sue over it, even for as little as one personally written message.

This list outlines several reasons why this is a bad idea. The problem stems from bulk mail, not single mails, even though users, of course, only see their personal copy or copies. The answer lies at this source, not elsewhere.

Before starting it's worth noting that laws and rules govern the actions of people, not of computers. So while you might take bulk mail to mean the use of a mailing list or spam program, in terms of laws it would not matter how it was delivered, just that a volume mailing was ordered.

1) Cheap volume E-mail is the cause of the junk E-mail problem

Why do we have junk E-mail filling our mailboxes? Because it's cheap to send bulk E-mail. For a few hundred dollars, a million messages can be sent. No other medium is like that. That low cost has attracted abusers. More reputable companies are not doing it, both because the response rate is poor and the prospects become angry people rather than customers.

The volume of unwanted material in other otherwise one-to-one media stays within a level we can tolerate because there are costs involved that make usage inherently self limiting. Without cheap bulk, E-mail is no different as a marketing medium than anything else. In fact, it's certainly less effective than things like the telephone.

2) Without volume E-mail, there can't be much spam

A simple look at the numbers answers this question. Perhaps only one internet user in 10,000 is a junk mail sender today. Even if they furiously typed away at personally written junk mails written for and sent only to one person (or a very small number of related parties) and were able to write up 100 every day, the average person would get only one junk E-mail every 100 days. Hardly something to worry about. Anything but messages written for and sent to one person is volume E-mail. Even if one person in 100 became a junk E-mailer (unlikely) and got out 10 a day we still see only one every 10 days.

3) Without volume E-mail, spam is not cost effective

A good chunk of spam is commercial, but there's a cost analysis behind even the political, religious and other non-commercial spams.

In paper "direct mail" (we know it as junk mail) the rule of thumb is that a 2% response rate to a mailing is a success. Go much less than that and you lose money, or certainly could be using other media more effectively. That's with a cost per mailing of between 30 and 80 cents.

But junk E-mail is very ineffective. Some reports suggest rates well under one response for 10,000 mailings. Most people just discard it as quickly as they can. Some go out of their way to cause trouble for the mailer.

Put any real cost on internet junk mail and it goes away, because it is no longer cost effective. Even a cost of a penny per message dooms junk E-mail as a marketing medium.

And one to one messages cost way more than a penny. Even if you get them (badly) written in sweatshops in 3rd world nations. (By the way this would still be bulk mail, since somebody still ordered a mass delivery of mail and outlined the general message.)

One to one messages cost more than phone calls. They take minutes to write, even if the recipient just quickly deletes them. Junk phone calls usually only take time when they're going well. One to one messages cost more than junk paper mail, or even junk faxes.

A page on this issue is available.

4) It is possible to detect bulk mail and enforce rules against it

It's true that it's easier to identify a single unsolicited message if you want to go after it, and that it takes more work to confirm a mailing was a bulk mailing. But it's far from impossible to do this, especially if the legal system is involved, as it would be in contract lawsuits or fraud or other anti-spam measures.

Read this essay on bulk detection for full details.

5) There are valid forms of non bulk "unsolicited commercial E-mail"

Stopping all unsolicited mail or unsolicited commercial mail just goes too far. While certainly one to one messages can be annoying, some are wanted, and it only takes a few to be wanted before it's inappropriate to interfere with the people who want to send and receive them.

One obvious example is the referral. "Hi, I met your friend John and he told me you were interested in XYZ, and told me to E-mail you and give his name." This happens all the time in business.

Even more common is a note like this... "I've been following your company and like it. I'm a good programmer. Do you have any job openings?"

Or even the basic business proposal... "I've invented a new technology that can make your business 30% more efficient. I would like to meet to discuss it."

Not everybody wants these sorts of messages, of course, but some people do, and their right to freely participate in them can't be interfered with by people trying to stop their own mail problems -- unless there is no other way. But there are other ways.

6) You never regulate more than you need to fix the problem

It's a general principle in all rules, but doubly so for anything that regulates communications. You don't solve more problem than you have. If stopping bulk mail will stop the spam problem -- and it will -- there is just no need to go further.

In fact, for non-commercial speech, the USA's first amendment has been ruled to make this very clear. Any attempt to regulate speech, even if for a very good purpose, has to be the least restrictive means possible or it is unconstitutional.

For commercial speech, the standard is slightly more relaxed -- the method has to be a "reasonable fit" with the problem. But clearly regulating single mails is not a reasonable fit if regulating bulk will do the job.

7) The cost of single E-mails is trivial to the vast majority

Let's face it. As annoyed as we get by junk E-mail, for most people, and the vast majority in the USA who have flat rate internet access, nobody is up in arms over the cost lost to them through the receipt of a single piece of E-mail.

It's hard to get an exact handle on that cost. For the many people who read E-mail at work over high speed dedicated lines, it's down below a thousandth of a penny. Even for somebody making a long-distance modem call those long distance charges are about a third of a cent, and the disk costs not even noticeable.

Whatever the cost, it's not something people would normally get up in arms about, calling for government regulation or harsh penalties. I've seen people spend hours of their time to complain about the audacity of "shifting the costs" to them, when those costs are not something the person would even pick up off the street, if they could even see it.

The anger is clearly over the principle of the thing, not the amount. And, of course, about the time wasted (though that's also small -- there is no medium in which it's easier to scan and discard a junk message) and the annoyance.

Those issues are important, though it's important to remember that it is not normally to consider it theft to waste a small amount of a person's time, or to annoy them. Those are different offences. First it is necessary to get past the question of theft.

Lots of E-mails -- they cause a problem. They can cost money, and fill up mailboxes, and waste a lot of time for ISPs. But they only come because of volume E-mail. You just can't make a case that a single E-mail is any great burden.

8) Individual E-mails don't shift costs, bulk E-mails do

Some argue that even the trivial cost of a single E-mail is still too much, just because of the principle of the thing. Any use of my mailbox, no matter how small the cost to me, is still stealing my computer resources and should be stopped, or so the argument goes.

But it turns out the internet was built on an unusual cost structure, and there is a general agreement, whether people know it or not, that nobody will get upset over or try to account for the inequities in low-volume traffic. It's just not worth it.

The "internet cost contract" is fairly simple -- I pay for my end, you pay for yours. We only get upset when there's overuse that threatens the balance -- the "commons" if you will. Single E-mails aren't that. Only bulk E-mail threatens that balance.

You can read a more detailed essay on the internet cost contract.

9) It's too easy to move from regulating single junk mail to single undesired mail.

Punishing single E-mails takes a big risk. If E-mails with the wrong motive or content are stealing resources, then why aren't other unwanted E-mails or bits of internet traffic also doing so? Lots of internet traffic is unsolicited. Lots is commercial.

It's a dangerous first step. Any argument against a single E-mail can apply to an unwanted flame, or a complaint, or any other such annoyance.

The ethnical principles we design for the "governance" of the net have to be fair. We can't use ones that could be applied to general content regulation. The idea that a small bit of traffic like a single E-mail can be abuse leads in too many dangerous directions.

10) Nobody should fear for writing a single message.

Even if one could nail down the problem and regulate single messages, there is a greater danger. People on the net should feel free to write and send a message to others, even others they haven't met yet. People should be able to meet over E-mail. E-mail is quickly becoming the most important medium of communication for people not in the same place.

Whatever rule is written there will be questions. And that means some people will be afraid to send mail that actually is quite legitimate and was never meant to be restricted by those who made the rules.

When people are afraid to legitimately communicate because of rules, it's called a "chilling effect," and it makes laws have negative side effects their authors never intended.

If you don't regulate single E-mails you have an easy rule to tell almost everybody doing E-mail. "If you're just writing an E-mail to somebody, you are not breaking any rules." Only if you start doing bulk mail, or repeatedly mailing the same person over and over when they don't want, would you be at risk for breaking E-mail rules.

This simple principle does a lot to keep E-mail free.