The Tcpa: a Justification for the Prohibition of Spam in 2002?

• Publication year: 2001
• Citation: Vol. 3 No. 2001

Cindy M. Rice⁰

Unsolicited Commercial E-mail: Why is it Such a Problem?

Growth of the Internet

Statistics show that more and more Americans are using the World Wide Web, making the Internet an increasingly integral part of everyday life. Fifty-six percent of Americans now have Internet access¹ and are using it for the exchange of text, images, video and sound. During the last six months of 2000, the number of American adults with Internet access increased by 16 million,² with the largest growth attributable to the increase of Internet use in the workplace. Almost every business, from Fortune 500 companies to small entrepreneurs, maintains websites and electronic mail (e-mail) addresses to communicate with and service their customers. Eighty-four percent of American workers report using the Internet every day or several times a day,³ as the workplace becomes increasingly dependent on the Internet for research, transactions, and everyday office functions.⁴

Growth of E-mail

Since one of the most widely used functions of the Internet is e-mail, it is no surprise that as the number of individuals using the Internet increases, so does the number of existing e-mail accounts. In 2000, 505 million e-mail mailboxes existed, and this number is expected to increase to over 1.2 billion by 2005.⁵ Similarly, by 2005, the number of individual e-mails sent on any average day is expected to exceed 36 billion worldwide.⁶ A survey of Internet users revealed that e-mail is the number one Internet activity, with the typical user spending seven to eight hours each week online.⁷

The growth in e-mail is consistent with that of overall Internet growth, in that the major increase in use has been in the workplace. Eighty percent of individuals surveyed use e-mail at work,⁸ and the number of corporate e-mail messages has increased fifty percent in the past year, with an additional thirty-five to fifty percent increase expected over the next year.⁹ E-mail is a convenient way for businesses to address customer service problems, to issue invoices and receipts, and to maintain intra-office communications. Moreover, in the increasingly technological work environment of 2002, which is filled with virtual offices and stay-at-home employees, e-mail is often the only source of communication between co-workers.

The dramatic increase in e-mail use can be attributed to its role as a quick and relatively inexpensive form of communication. Hand-writing letters, mailing documents, and waiting for Federal Express to deliver important papers all seem somewhat archaic in today's technological world. E-mail has developed as the primary method of communication for personal and more importantly, business use in 2002.

However, while the purpose of e-mail is to make communication more convenient, e-mail does not always provide the increased efficiency desired.¹⁰ It is estimated that people spend on average approximately five minutes processing each individual e-mail message.¹¹ Take the time necessary to process each business e-mail and multiply it by the volume of e-mails received, and suddenly quick and efficient are not necessarily the words used to describe e-mail.

Rise of Spam

Much of the inefficiency problem with e-mail can be attributed to the increase in the number of advertisers using the Internet. It is not surprising, given the number of people online and using e-mail, that advertisers are attempting to capitalize on this seemingly endless pool of potential customers. However, an advertiser's dream has created nightmares for individual consumers and businesses alike. The nightmare comes in the form of spam.¹²

Few Internet and e-mail users can say they have not experienced spam. It inundates Internet users everywhere. Spam includes those annoying advertisements promoting everything from pornographic websites to get-rich-quick schemes that invade the e-mail boxes of millions daily. Although the technical name given to such advertisements is unsolicited commercial e-mail (UCE), spam is the common term most recipients use to describe the junk e-mail clogging their inboxes every day.

Over the past couple of years, the use of spam has steadily increased and an entire industry has developed around spam.¹³ Each time an e-mail address is given out, there is a risk of that e-mail address being sold to other companies resulting in the receipt of spam. Companies now specialize in sending 900,000 e-mails twice a day or in having as many as 25 million e-mail addresses for sale.¹⁴ The sudden popularity and abundant use of spam can be attributed to the benefits spam creates for advertisers. Spam allows advertisements to reach millions of potential customers at an exceptionally low cost.¹⁵ The only real cost associated with this form of advertising is in hiring a company to send out spam or in purchasing a list of e-mail addresses to send the advertisement yourself.¹⁶ Spamming does not involve the overhead costs associated with other forms of advertising.¹⁷ "A spammer can send an e-mail advertisement to one million people for the paltry sum of $100."¹⁸

Spam can be compared to junk mail sent to homes and offices, or the telemarketing calls received while eating dinner. However annoying such solicitations may be, they have become commonplace and almost accepted in American society.¹⁹ So why is there such outrage toward the latest technological form of solicitation? The controversy stems from the fact that spam creates problems that do not occur with other forms of unsolicited advertisements. Spam goes beyond just annoying its recipients and invading the privacy of individuals' homes. Spam actually results in cost shifting from the advertiser to the unknowing business or consumer and wasting of individual (and, more importantly, business) resources. Furthermore, its content is often more offensive than typical direct mail or phone solicitation.²⁰ Ultimately, spam results in a loss of the very efficiency for which e-mail has become so essential to everyday business functions.

Cost shifting

With direct mail and most other forms of unsolicited advertising, the advertiser pays to send the ad and the consumer is merely burdened with the inconvenience or annoyance of receiving it. The big difference between these forms of unsolicited advertising and spam is that spam shifts the cost of the advertisements directly to the consumer.²¹ This cost shifting is the greatest objection among Internet users and Internet service providers ("ISPs").

In essence, cost shifting is a result of how ISPs charge for their services. Internet users typically gain access to the Internet by paying ISPs for service. Although users increasingly pay a set per-month fee for access, often the amount a customer is assessed is based on the number of hours spent online.²² Under this type of system, consumers pay for every second spent opening, reading, and deleting unsolicited commercial e-mail. The few minutes it could take to read and remove an unsolicited advertisement may not seem like much; however, considering the aggregate effect of hundreds of e-mails per month, the costs significantly add up. It has been estimated that the time necessary to read, erase, or just sift through spam takes up as much as $2 of a consumer's average monthly fee.²³ Additionally, as discussed below, consumers are forced to pay increased access fees when ISPs' costs increase from their own attempts to mitigate spam.

Waste of Resources

The greatest costs associated with spam are shifted onto ISPs²⁴ through the waste of these companies' resources. America Online, one of the largest ISPs, has estimated that as much as 30 percent of its daily incoming e-mail messages, approximately thirteen million, are junk e-mail.²⁵ The effect of such spam transmissions is to "paralyze computer systems, gobble up disk storage space, and drain time and resources from the Internet companies that are forced to store and process them."²⁶ As ISPs incur more spam, they have to increase their bandwidth in order to accommodate the increased number of messages and still maintain current access and processing speeds.²⁷ ISPs are also forced to incur additional costs for instituting new precautionary measures or "filtering schemes" to combat spam and maintain customer loyalty.²⁸ As stated above, these ISP costs lead to a compounding effect for consumers, when ISPs are forced to relay at least some of their additional costs in the form of increased access fees.

Individual consumers are additionally burdened by an increased amount of time spent opening, reading, and processing e-mail.²⁹ Such problems could be overlooked when e-mail was primarily used to communicate with friends, but given the dependence on technology and increase in virtual offices over the past couple of years, this waste has become extremely detrimental to business operations. Spam results in loss of employee productivity and waste of employee time caused by the necessity of wading through extra e-mail messages. Furthermore, for each unwanted e-mail message consumers are forced to sift through, consumers are giving up time in which legitimate e-mails could be sent or received.³⁰

Content

The content of most spam also makes consumers considerably less tolerant of this type of unsolicited advertisement.³¹ Spam traditionally includes pyramid schemes, sexually explicit materials, and possible threats to system security.³² As such, the acceptance of spam as another harmless form of advertising has not been as widespread as with other, more traditional forms of unsolicited advertising. Not only is spam as intrusive and annoying as traditional unsolicited advertisements, spam is also offensive and often inappropriate for the work environment.

All of these problems lead to one overwhelming conclusion—that spam takes away much of the speed and efficiency which made e-mail so heavily used. With spam as a byproduct of the Internet, no longer is e-mail the quick, efficient, or cost-effective...