Saturday, April 05, 2008

Anti-Spammers Suffer From "Spam Exceptionalism"

In response to the conviction of Robert Soloway, the "Spam King", Eric Goldman, assistant professor with Santa Clara University School of Law, who blogs about technology and marketing, stated that many Internet users may be happy to hear about Soloway's criminal prosecution, but law enforcement shouldn't necessarily rush into these criminal cases. Why? Well according to Goldman, spam is principally about speech and we should be very reluctant to criminalize speech-based behaviour. Goldman added that there's such an antipathy towards spam that there's almost a sense that anyone who ever engages in spam is so evil that they should be punished, an attitude that Goldman likes to call "spam exceptionalism". He believes that if people really thought about the issues, they wouldn't necessarily find spam any more invasive than other forms of advertising, like television commercials or junk postal mail.

So I guess I'm one of the worst spam exceptionalists in the world and the reason for my "problem" is because I'm not thinking clearly about the issues of spam, as a result I'm blinded by my negative attitude towards spam and can't see it as another form of advertising. Is spam just another form of advertising? Is vandalism just another form of art? Is drug trafficking just another form of doing business? Can we justify a crime just because it bears a striking resemblance to something legitimate?

So what are the basic characteristics of spam?
  • It is unsolicited;
  • It is obtrusive and a hindrance;
  • It needs to be managed and is therefore counterproductive;
  • The recipient of the message pays for it, not the sender.
If you evaluate the different forms of advertising against these characteristics, you soon realise that actual advertising is not nearly as invasive as spam. When advertising material bears all the characteristics mentioned above, you can't classify it as advertising anymore, at best you can call it spam (or perhaps a couple of stronger words). So lets take a quick peek at the different forms of advertising to see how spam matches up against them.

TV Commercials
Television commercials can be seen as unsolicited, because you turn on the TV to watch your favourite show, not the annoying commercials. TV ads can become obtrusive and a hindrance during the show, especially when the broadcaster interrupts the show on a frequent basis. TV commercials can be useful at times (something that can't be said about spam), for instance to grab a snack, stretch your legs or to make a quick phone call. Some TV ads can be entertaining, but spam is boring and hardly entertaining (unless you're a 419 scam baiter or spam collector). Broadcasters love to raise the audio of TV ads, so much that you often have to hit the mute button on your remote control to prevent your speakers from exploding. This may be seen as a form of management, but unlike spam, you don't need to manage TV ads, once the ad is played it's gone (for now at least), but you need to take specific action to get spam out of your life, it's going to sit there in your inbox until you select it and hit that darn spam button. The viewer never pays for TV commercials, on the contrary the commercials sponsor the shows watched by the viewer. So spam is a far cry from advertising when you compare it to TV ads.

Radio Commercials
Radio and TV commercials have a lot in common, the only difference is that TV commercials are audiovisual and radio ads are, well… audio only. Radio ads are often less invasive and annoying because they are often played between songs and do not interrupt programs as much as TV ads, but it all depends on the advertising policy of the radio station off course.

Magazine and Newspaper Ads
These ads have more or less the same characteristics as TV commercials, but they are less invasive and annoying than TV ads. If you are not interested in an ad, you simply read on or skip a page, it is as easy as that. There is nothing to manage and there is no cost for the viewer of the ads.

Online Banners and Text Ads
Well-behaved online advertising is never obtrusive, invasive or a hindrance (I will discuss spam ads later in this article). As a matter of fact, people have developed a sense of banner blindness and automatically ignore the majority of these ads. There is no need to manage these ads because when visitors see the ad, they either choose to click on it or they ignore it completely. Web ads may be seen as unsolicited, but they are often there to cover the operating expenses of the website, so they often serve the same purpose as TV commercials. The visitor pays a small amount in terms of bandwidth, because the ads need to be downloaded along with the rest of the content of the web page. However, the advertiser still pays the full price for the ads, the exact opposite of spam where everybody else pays for the "ads" except the "advertiser".

Billboards and Outdoor Advertising
These ads are neither solicited, nor unsolicited, they are there to be seen if you want to look at them. The advertiser pays for the ads, so there are no costs for the people viewing the ads and there is no need to manage these ads because you either respond to them or not, it is as simple as that. They are not a hindrance or obtrusive, except when they are deliberately placed in front of something else to draw unnatural attention to them. These ads are normally next to busy roads, on the walls of large buildings or at the main entrance of buildings. Because of their size and nature, there are often legislation regulating the use of these ads, so it is very hard to spam with them. Putting up a billboard in certain a way to draw extra attention to it, but causing a road hazard at the same time will get you into trouble. With spam you can do as you wish because there are simply not enough proper anti-spam laws to regulate the digital advertising industry and the laws that exist are seldom used.

E-mail Advertising
There is a huge difference between e-mail advertising and spam. E-mail advertising is opt-in advertising, in other words the recipient chose to receive e-mail ads and may opt-out at any time by un-subscribing. But some publishers do not seem to grasp the true meaning of opt-in. It means choice, the choice to receive e-mail ads or not. Certain publishers force their subscribers to sign up for 3rd party and additional marketing mailings as well. This means that you never get a choice to receive the newsletter alone, if you want to receive the newsletter, you also need to live with all the additional advertising e-mails as well. You can un-subscribe at any time, but this means you will opt-out from the newsletter as well, not just the advertising e-mails.

Proper e-mail advertising means you give your readers the choice to receive additional marketing material or not, it should not be a precondition to receive your publication. If you do not want to give your readers such a choice, place the ads in your newsletter (but sparingly, remember your readers signed up for the newsletter, not the ads). Forcing your readers to receive extra advertising e-mails, whether it is from a 3rd party or not, is a big no-no. Additional e-mails means additional management and when your newsletter becomes too much of a hassle, subscribers will either opt-out or hit the spam button. The advertiser ends up paying for advertisements that never reach their audience.

So what is the bottom line? Proper e-mail ads are opt-in and not unsolicited. They are neither obtrusive, nor a hindrance and subscribers are allowed to opt-out at any time. There is no additional management for the recipient and the advertiser pays for the ads. The only cost to the recipient is perhaps the bandwidth used to download the e-mails, but remember this is not a wasted bandwidth because the recipient opted in to receive the e-mails.

Postal Mail Advertising
No this is not the junk filling up your mailbox, I will discuss that a bit later. The rules for proper e-mail advertising also apply to this form of advertising. Some companies send a free magazine (containing 3rd party ads) along with your monthly bill. I have seen this with cell phone companies, sending a free magazine containing interesting articles on mobile communication, or medical aids sending free healthcare magazines every quarter. This form of advertising is often less invasive and annoying because the reader gets a free magazine. I normally do a 5-minute scan through the magazine to see if there is anything interesting. If I can't find anything compelling it goes straight to the waste bin. I am sure many people never even look at these magazines, especially if the readers know they only contain a load of junk. Unfortunately, this contributes to a lot of additional household waste.

Up to now I discussed the most common and more accepted forms of advertising. These forms of advertising are less invasive, require little to no management at all and there is no substantial costs for the recipient of the advertising material. We will now take a look at the less desirable, annoying and invasive forms of advertising, or should I rather say forms of spam?

Junk Postal Mail
This form of advertising has all the characteristics of spam. It is unsolicited because you never opted to receive it, it's obtrusive, a bloody hindrance and needs to be managed because it takes unnecessary space in your mailbox, space that could have been used for more important mail and you need to filter through all the junk to get to your actual mail. The only thing that separates it from spam is the fact that the advertiser paid for the advertisements and their distribution. However time is money and it takes time to sort out your own mail from all the junk, so there is some form of substantial cost to the recipient. Very few people look at them (the loads of flyers lying on the floor at the post office is proof of this) and the majority of mailbox owners are annoyed by them. Some of the scams in circulation on the web are also distributed via postal mail. It is actually shocking to think that post offices agree to distribute this junk, because think carefully about it, they are paid to place this stuff in your mailbox, so the only conclusion one can make is that they are prepared to put almost any kind of correspondence in your mailbox, as long as they are paid for it. With that being said said, junk postal mail falls under the umbrella of spam.

Flyers are distributed in many ways, including the post as discussed in the paragraph above. Flyers are distributed on street corners, in parking lots, magazines, and newspapers and from door to door. Each one of these methods forces the recipient to take some form of action, therefore the advertisements need to be managed by the receiver. If you ever saw the movie National Lampoons Loaded Weapon, you will recall the scene where one of the lead characters stood in a store scanning through some magazines. Flyers kept pouring out of the magazines and it was not long before he stood knee-high in a huge pile of flyers. This is an old movie, so this has been a problem for a long time and it is getting worse by the day.

Imagine how much time goes to waste when you take a flyer presented to you at every darn street corner, when you remove the bouquet of flyers from your windscreen each time you park your car at a parking lot and when you take out all the flyers, compressed into your mailbox by every idiot who distribute the junk from door to door. That's just one part of managing these ads, you also need to get rid of them. Receiving a flyer on every street corner and at every parking lot quickly fills up your car with junk. What do most people do when they are done with the flyer, they toss it out of the window. Flyer advertisements therefore contribute to pollution just like junk postal mail. No matter how you look at it, flyers have a lot of unnecessary costs for the consumer and even though the advertiser pays for them, they are just as annoying, problematic and unsolicited as spam.

Telephone and Instant Message Marketing
This is not really marketing, it is just another form of spam. You are forced to answer your phone or read the instant message because the caller ID is often hidden, so it is impossible to see who is calling. There are costs in terms of time involved in these annoying calls, because you need to answer the phone and tell the salesman you are not interested. Many of these marketers are persistent and do not take no for an answer so it wastes additional time if you have one of these spammers at the other end of the line. Telephone marketing is unsolicited, obtrusive and quite a pain in the… you know what. The U.S. may have a do-not-call registry but very few countries see this form of "advertising" as a potential problem for consumers.

Door-to-door Marketing
Door-to-door salesmen are a big problem in many neighbourhoods. It is really annoying to show salesmen away several times a day, especially for people working from home, because you are interrupted every hour or two by someone knocking at the door. There is nothing more annoying than a salesman ringing the bell while you are on the phone with an important client. Imagine a hundred salesmen at your doorstep and you have to show them away one by one, it my not be spam, but it is basically the same principle.

Pop-up Ads
If you ever wanted to experience annoying advertising, visit a website with pop-up ads. Nothing is more irritating than an ad floating over menus and buttons, forcing you to take notice of it before you are allowed to explore the rest of a web page. Whether it is a pop-up or pop-under ad, it is unsolicited and it uses unnecessary bandwidth. These ads are prone to use a lot of bandwidth because they are constantly in your face whenever you try to navigate to another page or website. Some advertisers love to throw you one last sales pitch just before you leave their site. These pop-up ads are often a chat window giving you the chance to talk to a so-called sales consultant. They are often not real people but bot-scripts repeating the same thing over and over again (try swearing at them and you will soon see they don't have a clue what you are talking about). A chat window like this need to be closed before you can navigate to another site, so you definitely take notice of them. These ads are unsolicited, obtrusive and in-your-face, therefore they need to be managed by the visitor, wasting valuable time and money.

Ads Disguised As Content
Just the other day I searched the web for drivers for my laptop. Believe me, after several searches and several hours of no success you slowly become irritated by your inability to find what you are looking for. The last thing you need, is a website pretending to have loads of drivers and when you use the search facility of the site, you only get a page filled with camouflaged Google Adsense ads (by the way this is against Google Adsense policy, so more people should start to report these spamvertisers to Google). A click on one of these ads will result in a low quality click, because the visitor is unlikely to be a targeted visitor and this raises the click-through costs for the advertiser with no return on investment. These ads are unsolicited and annoying because you don't get what you asked for. There is an additional management burden on the visitor, because whether you click on the ad or not, you end up bumping your head against a brick wall, so you need to track back and look for another site. It often happens that you visit several of these Made-For-Adsense sites before finding a real site with the actual content you were looking for. This waste of time is counterproductive and causes a lot of frustration. These sites are just as bad as the Viagra spam you get in your mailbox.

I think it is clear that spam can never be seen as another form of advertising, it is criminal, invasive and very hard to manage. Spam is not about speech, whether the intent of spam is commercial or not, if it is unsolicited, it is spam. When we criminalize spam, we are not criminalizing speech-based behaviour, freedom of speech does not give a spammer the right to puke in my mailbox. A criminal deserves punishment and the definition of a criminal fits a spammer quite well.

One of the readers of the InfoWorld article on Robert Soloway's trial, recommended his stupid POINT-CLICK-TRASH theory to manage spam. He reckons that it is much easier to trash spam than junk postal mail and he also thinks spam does not deplete natural resources; contribute to land fills; pollute the air, ground or water, so people should stop complaining about spam. Well I've got news for this narrow-minded fool and everyone who thinks like this, where do you think does the energy come from to handle the volumes of spam distributed worldwide, every single day? Spam leads to increased energy consumption and increased energy consumption contributes to global warming, so spam does deplete natural resources. Try applying the POINT-CLICK-TRASH theory to dump trucks dropping off waste on your property, you keep on trashing and the dump trucks keeps on dropping, it is an endless struggle. With spam you keep on trashing and the spammer keeps on spamming. The solution to spam is not to invent some stupid theory to manage it, the only solution to spam is to stop it at its roots and the only way to do that is to put the spammers behind bars, whether people like it or not.

About the Author
Coenraad is webmaster and founder of Cyber Top Cops, leaders in Internet security, prevention of online fraud and raising awareness about spam and malicious software.

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