In spite of the apparent support the public has for anti-spam laws, it will not be easy to wipe out spam. It could even be the case that these laws will generate more problems than they solve. While rampant spamming may remain unchecked, there could a dramatic increase in criminal activities associated with spam and, worse still, wide-spread disrespect for the law among the public. The following reasons elucidate how this could be possible.
Spamming is perhaps not a serious offence
This is a fact which we must all come to terms with. Something that is irritating or even detrimental to company productivity is not necessarily a crime and usually is not a crime anyway. Spamming may appear to be associated with many criminal activities, and is without a doubt anti-social and discourteous, but it is actually undeserving of the hatred commonly directed towards it. Spamming has an economic purpose. It is also important to be aware that the cost of the e-mail is largely borne by the recipient. It may be possible to make a case for penalizing spammers within such narrow economic boundaries but the activity itself is trivial compared to crimes such as theft, fraud, vandalism or assault. It is only when spammers engage in criminal activities, in their case usually fraud, that they can be prosecuted for such crimes using existing laws. There is really no need for a special law against spamming.
Anti-spam laws are next to impossible to enforce
It is easy to identify a spammer's general locality and netblock but it can be difficult to discover his true identity. It is essential to identify a spammer in real life before he or she can be prosecuted by the law. The following questions arise: Who will carry out this tedious investigation and identification? And who is going to pay for it? Saving cost is the number one priority in the business sector and if companies are not willing to hire professional mail administrators to prevent spam from getting through the mail host, they will be even less likely to bear the far greater cost of hiring professionals to investigate incidents of spam and apprehend spammers. There will be no funding for spam investigations if law-enforcement agencies do not pick up the tab.
Uniform international laws are required
The Internet is a global network. Spam can come from anywhere and differing laws between countries will lead to further complications of the issue. Only a uniform global legislation can combat spam. It would be very interesting if a world that cannot come to a consensus regarding serious issues such as genocide, war crimes, chemical and biological warfare (CBW), nuclear proliferation etc. can agree to laws against spam. The truth is that globalization has not rooted itself in government agendas deeply enough yet. As a result, there appears to be a general consensus but there continues to be political and commercial impediments regarding universal endorsement of treaties and conventions regarding such matters. Even in the United States, law-makers have not passed uniform federal legislation. In the USA the regulation of spam is the responsibility of individual states, and often, the individual.
Laws cannot fully deter spammers
Anti-spam laws cannot have much effect, contrary to the assertions of those who support these laws. The truth is that a small number of amateur or foolish spammers may be prosecuted but the majority of spammers with some professionalism will avoid prosecution. This will boost their superiority complexes as they will consider themselves too clever for the authorities. The inevitable failure of the authorities to take effective action against them will only further inflate the undeserved high opinion that spammers already have about their own cleverness.
Laws help to increase criminal behaviour
Although spammers are often associated with criminal activities, at present not all of them do so. Spammers do go to considerable lengths to disguise their identity but this is because of the antipathy directed towards them. If spamming is labeled as a criminal offence, spammers will strive even harder remain hidden and they may be forced to resort to criminal means (e.g. identity theft, credit card fraud etc) as well as electronic vandalism in order to conceal their true identity and avoid prosecution. After having crossed the line into criminal behaviour, a spammer may then feel less at risk from the law, and more willing to participate in criminal activities. These include activities that are, but have not always been, associated with spamming (e.g. child pornography, fraud, trading in dangerous and illegal goods etc). Legislation will not only not prevent spam, it will make the activity go permanently underground, and make it an inherent aspect of the growing black economy, ultimately becoming a valuable addition to the arsenal criminal underworld.
Unenforceable laws result in general disrespect for all laws
Laws which are continuously and flagrantly disobeyed bring disrepute to the entire legal system in the eyes of the public. This can have the entirely undesirable consequence of encouraging further lawlessness. Law-breakers, in contrast, have an elevated image among many. In times of economic instability, this could encourage more people to resort to criminal activity. Unemployed workers see how easily the law can be disregarded and if they have the appropriate skills, become gainfully employed in the black economy.
A classic historical example of a similar nature was the attempted prohibition of alcohol in the previous century in the U.S. This not only failed to prevent the consumption of alcohol but also encouraged it. These laws ultimately provided a huge cash and employment injection into the global black economy, and kick-started modern organized crime.
This does not mean that all is lost. All the other crimes mentioned in this website are crimes which have their “real-world” counterparts which can thus be prosecuted in the same way. The real-life counterpart of spamming would be sticking up advertisements everywhere or door-to-door sales which, though at worst a menace, was never considered a crime. Spamming has taken this menace to a much higher level but it still lies in the grey area between legal and illegal. It is necessary for the individual or companies to take matters into their own hands for this particular crime genre and not wait on the government or legal system.
Reference
Stop Anti-Spam Laws
http://www.eweek.com/article2/0,1759,1216302,00.asp
BBC NEWS | Technology | Anti-spam laws 'lack bite'
http://news.bbc.co.uk/1/hi/technology/3131252.stm
Federal anti-spam law gets mixed results
http://www.nwfusion.com/news/2004/121304canspam.html