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The Do-Not-Call Registry Model Is Not the Answer to Spam, 22 J The John Marshall Journal of Information Technology & Privacy Law Volume 22 Issue 1 Journal of Computer & Information Law Article 4 - Fall 2003 Fall 2003 The Do-Not-Call Registry Model is Not the Answer to Spam, 22 J. Marshall J. Computer & Info. L. 79 (2003) Richard C. Balough Follow this and additional works at: https://repository.law.uic.edu/jitpl Part of the Computer Law Commons, Internet Law Commons, Privacy Law Commons, and the Science and Technology Law Commons Recommended Citation Richard C. Balough, The Do-Not-Call Registry Model is Not the Answer to Spam, 22 J. Marshall J. Computer & Info. L. 79 (2003) https://repository.law.uic.edu/jitpl/vol22/iss1/4 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in The John Marshall Journal of Information Technology & Privacy Law by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. THE DO-NOT-CALL REGISTRY MODEL IS NOT THE ANSWER TO SPAM RICHARD C. BALOUGHt I. INTRODUCTION The overwhelming response to the federal Do-Not-Call telephone registry maintained by the Federal Trade Commission ("FTC") indicates that telephone customers do not like to receive telemarketing calls at home.' Whether the Do-Not-Call telephone registry will ultimately re- 2 duce unwanted telemarketing as planned remains to be seen. A recent survey of Internet users indicated that they would like to see a Do-Not-Spam registry as well. But, as will be discussed here, dif- ferences between Internet spain and telephone telemarketing make an "opt-out" Do-Not-Spam registry an impractical model to the Internet users' lament. A. ONE PERSON'S SPAM is ANOTHER PERSON'S VALUABLE INFORMATION It is difficult to precisely define spain. As the Paul Simon song goes, t Richard C. Balough is a practicing attorney in Chicago, IL. His practice focuses on Internet law and privacy issues. He is a graduate of Indiana University with a degree in government and journalism. He obtained his Juris Doctor degree and his Masters of Law degree in Intellectual Property, cum laude, from The John Marshall Law School. He is completing his studies for a second Masters of Law degree in Information Technology and Privacy Law from The John Marshall Law School. He can be contacted at [email protected]. 1. Consumers on Do Not Call Registry File over 15,000 Complaints Against Telemarketers, <http://www.ftc.gov/opa/2003/10/dnccomplaints.htm> (Oct. 16, 2003). As of the middle of October 2003, more than 53.7 million residential telephone numbers have been registered on the Do-Not-Call list maintained by the Federal Trade Commission. The Commission has predicted registrations will grow to sixty million numbers by the summer 2004. Associated Press, Telemarketing Group Sues FCC, Industry Seeks Another Challenge to Do-Not-Call List, <http://www.msnbc.com/news/945151.asp> (July 28, 2003). 2. Id. As of October 16, 2003, the FTC had received more than 15,000 complaints against telemarketers from residential customers who signed up for the Do-Not-Call regis- try. Nearly 21,000 organizations have accessed the registry with 550 telemarketers downloading all area codes in the registry. On average, each telemarketer retrieved about forty-five area codes from the total national database of 317 area codes. 80 JOURNAL OF COMPUTER & INFORMATION LAW [Vol. XXII "Remember: one man's ceiling is another man's floor."3 So it is with spam also. Unsolicited commercial e-mail sent to one person may be spam while the same message to another may be the message he or she wants. 4 That being said, however, most would agree that the enormous volume of unsolicited commercial e-mail causes problems for the recipi- 6 ents.5 It takes time to sort through the spam and it clogs e-mail boxes. The shear volume of spam affects the operation of the Internet. It has required Internet Service Providers ("ISPs") to institute blocking mecha- nisms and has forced many consumers to buy anti-spam programs to load onto their individual computers. Not only is there a cost in blocking spam, but there is the added problem caused when non-spam e-mails are blocked. As an AOL spokesman recently said, "[w]e block first and ask questions later when it comes to suspicious e-mail."7 This blocking has included the FTC's own e-mail confirmation messages for persons enroll- 8 ing in the Do-Not-Call registry. The cost of computing power used by spam and the wasted time has been estimated at ten billion dollars in the United States for 2003 and $20.5 billion worldwide. 9 The European Union found that ... unsolicited commercial communications may on the one hand be relatively easy and cheap to send and on the other may impose a burden and/or cost on the recipient. Moreover, in some cases their volume may also cause difficulties for electronic communications networks and ter- minal equipment.10 3. One Man's Ceiling is Another Man's Floor in There Goes Rhymin' Simon, Artist Paul Simon, Warner Bros. Records, 1973. 4. For example, if you are in the market to refinance your mortgage, you may want to read unsolicited e-mail advertisements from a mortgage company. However, if you rent, the same e-mail advertisement may be of no interest to you. 5. ePrivacy Group, The Economics of Spam, <http://www.eprivacygroup.com/article/ articlestatic/58/1/6> (Feb. 2003). The economics of spam do not encourage target market- ing since the cost to send the e-mail does not increase by the volume of e-mail sent but rather is fixed. Moreover, the cost is largely borne by the recipient. Compare this to the economics of snail mail or telemarketing where every piece of mail or every telephone call has an associated cost. "In a nutshell, the parasitic economics of spam means this: the act of sending a message costs the sender less than it costs all other parties impacted by the sending of the message." 6. Hansell, Saul, Totaling Up the Bill for Spam, Wasted Time, Computer and Human, Is Only Part of the Cost, N.Y. Times (July 28, 2003). 7. Mangalindan, Mylene, Didn't Get E-Mail? That Could Be Spam's Fault, Too. Vigi- lant Blockers Toss Out the Good With the Bad; Artist Misses Own Show, Wall St. J. (Aug. 4, 2003). 8. Id. 9. Hansell, supra n. 6. 10. Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002, Official Journal of the European Communities 31.7.2002, L201141. 2003] THE DO-NOT-CALL REGISTRY MODEL B. INTERNET USERS Do NOT WANT UNSOLICITED COMMERCIAL E-MAILS 12 According to a study by ePrivacy Group1 1 and Ponemon Institute published in July 2003: Unwanted solicitations represent more than 25% of all e-mail traffic getting through to 61% of consumers inboxes every day. Nearly 40% of consumers spend 30 minutes or more each day just dealing with 13 spam. The same report that surveyed a sample of 1,090 adults in the United States found: 1. Most consumers support a Do-Not-Spam list, federal law and legal penalties to deter spammers. (A total of seventy-four percent of those surveyed stated they wanted a federal do-not spam list). 2. Current solutions to stop unwanted e-mail, such as filtering and opt- out mechanisms, do not appear to work well. 3. Most consumers define spam by their relationship with the sender or the type of the e-mail they receive. They don't think of spam in terms of an opt-out or opt-in permission to receive e-mail messages. 4. Consumers want redress and greater control over their e-mail 14 inboxes. II. DO-NOT-CALL REGISTRY MODEL MAY NOT BE TRANSFERABLE TO DO-NOT-SPAM A Do-Not-Spam registry would have many similar traits to the Do- Not-Call telephone registry, so a brief review of how the Do-Not-Call telephone registry began may be helpful in assessing the potential suc- cess of a Do-Not-Spam registry. A. Do-NOT-CALL STARTED WITH TCPA 1. Congress Found Telemarketers Mobile and Consumer Fraud Over Forty Billion Dollars a Year In 1991, Congress passed the Telephone Consumer Protection Act 11. ePrivacy Group, "Background" <http://www.eprivacygroup.com/pdfs/Background 03.pdf> (accessed Dec. 2, 2003). ePrivacy Group is based in Philadelphia and is a privately held company. It promotes itself as an advisor to corporations on governments on spam and other electronic privacy and security issues. 12. 2003 Privacy Trust Survey <http://cioi.web.cmu.edu/research/2003PrivacyTrust- SurveyExecutiveSummary.pdf> (accessed Dec. 2, 2003). Ponemon Institute describes itself as a "think tank" dedicated to advancing responsible information management practices in business and government. It is headquartered in Tucson, Arizona. 13. Executive Summary, 2003 Consumer Spam Report, ePrivacy Group and Ponemon Institute, <http://www.eprivacygroup.net/spamstudy/2003ConsumerSpamStudyExecutive Summary.pdf> (accessed Jan. 17, 2004). 14. Id. at 1. 82 JOURNAL OF COMPUTER & INFORMATION LAW [Vol. XXII ("TCPA") of 1991.15 Among the findings supporting the passage of the legislation was that telemarketing differs from other activities because: -Telemarketing can be carried out by sellers across state lines without direct contact with the consumer; and -Telemarketers are very mobile, moving from state to state. In 1991, it was estimated that consumers lost forty billion dollars a year through telemarketing fraud and that there were 300,000 solicitors to eighteen million Americans every day that generated sales of $435 billion annually.
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