To many people, nothing is so annoying as receiving spam on their e-mail. They sit down at their desk in the morning; and before they can get to last night's messages, they are bombarded by spam. Those nasty old merchants who want to sell them something on the Internet are taking up their precious time and computer space.

According to conventional wisdom, spam is unsolicited e-mail and should be banned.

But wait a minute! Is spam really unsolicited e-mail? Let's examine what spam really is before we rush to judgment. Let's start with the commonly held thought that spam is unsolicited e- mail. What does unsolicited e-mail mean? It means that someone has sent you an e-mail that you didn't specifically request. I call you on the phone and ask you to send me an e-mail. That's solicited e-mail. Everything else is unsolicited e-mail. Let's examine whether spam really is unsolicited e- mail.

Suppose you get an e-mail from your mother. She decides to remind you of an upcoming holiday. Is this spam? Well if you believe that unsolicited e-mail is spam, then indeed this qualifies. Unless you specifically told your mother to send you an e-mail reminding you of this holiday, then the e-mail your mother has sent you is spam. But you argue, wait a minute, let's use common sense. When my mother sends me an e-mail, it is not spam – regardless of whether I have asked my mother to contact me or not. I love my mother, and she can contact me any time she wishes. The case for spam being unsolicited e-mail is weakened.

Let's take another case. Your bank sends you an e-mail telling you that your account is overdrawn. Is this spam? Well, if you think that unsolicited e-mail is spam, this is indeed spam. But, you say, the bank is merely doing its job, and you appreciate them contacting you under the circumstances. The fact is that you did not specifically ask them to send you an e-mail. Under the conventional wisdom definition of spam, your bank's e-mail to you is spam.

Something is fishy here. We begin to see that there is more to spam than merely sending someone an unsolicited e-mail. It is all right to send someone an unsolicited e-mail (indeed it is often welcome) when a prior relationship exists and circumstances warrant that an e-mail be sent. When there is a prior relationship between people, spontaneous communication between them is not spam. It is only where there is no prior relationship between you and the sender that an unsolicited e-mail is spam.

So spam is not merely unsolicited e-mail. We are now much more sophisticated about our understanding of what is and what is not spam. Spam is unsolicited e-mail where there is no relationship between the sender and the receiver.

Let's carry on with this line of thought. Suppose you enter someone's Web site. They have some material you want to download. Before they allow you access to the material, they ask you to identify yourself. As part of the identification procedure, you are asked if you would like to be contacted about future events and opportunities. You consent and provide them with your e-mail address.

When you receive an e-mail from the Web site where you performed the download, is that spam? You did not solicit an e-mail, but you did consent to future interaction. Under these circumstances, when you receive the unsolicited e-mail, it is not spam. However tenuous, you have a relationship with the company doing the sending.

Let's suppose you enter the same Web site and, in this case, do not consent to further interaction. You specifically say that you do not want to hear from the Web site again; but as part of getting to the material you want, you are required to give your e-mail address. You do so, but only under the stipulation that you receive no e-mail. When you receive an e-mail from the Web site, is that spam? The answer is definitely yes.

As a further variation on these circumstances, suppose you want to download something from the Web site. Your e-mail information is requested, but there is no indication that you will or will not be contacted at a future point in time. You want whatever is on the Web site, so you give up your e-mail address. Now when you receive an e-mail, is that spam? That is a good question. You and the Web site are walking a thin line. If what you download from the Web site has economic worth, then it is naive of you to think that this is a fair deal. In other words, if you take something of economic worth, it is reasonable to expect that the Web site would like something of economic worth from you. That seems a fair trade. Any other interpretation is naive.

If you take something of economic worth from the Web site, don't be surprised to find your e-mail on the mailing list. Of course, if what is being offered on the site is of no economic worth, then it probably is fair to say that taking your e-mail address is a bit underhanded. If that is the case, then what are you doing on the Web site in the first place?

Now let's go even further. What happens when one vendor collects your e-mail information and passes it to another vendor with whom there is no known connection or relationship? The second vendor then sends you an e-mail. Is this spam? The answer is that it is definitely spam. You never asked for or consented to an electronic relationship with the second vendor. Now you are getting unsolicited e-mail from a vendor with whom you have no relationship of any kind. This is spam, because you did not solicit anything from the second vendor. You have no relationship of any kind with the vendor that sent you the e-mail.

We're on a roll. Now let's keep going. Suppose you attend a conference. As part of the registration for the conference you give your e-mail address. The next week you get an e- mail based on the address you gave as part of registration. Is that spam? The answer is that it is definitely spam. You never gave your e-mail address for the purpose of electronic contact. You have no e-mail relationship with the company sponsoring the conference. Someone has usurped the privileges of taking registration information and turned that exercise into one of making an e-mail list. This is spam of the worst order, and you have every right to get mad.

The simplistic definition of spam as unsolicited e-mail simply does not hold water. We get unsolicited e-mail all the time and do not have any complaints. In order to determine what is and is not spam, we need to investigate the relationship between the sender and the sendee. We can restate what spam is now by saying that spam is unsolicited e-mail where there is no electronic relationship between the sender and the sendee. Without this very important refinement and distinction, your mother is one of those dreaded spammers. And we all know that is not the case.

There is a whole host of other issues related to what spam is and is not. In order to not be considered spam, the sender must identify himself, provide a physical address and must consent to remove you from the list at your request. (Note: you must provide the sender with the e-mail address that is receiving the mail. If you cannot or will not tell the sender the address to be removed, then the sender most likely cannot remove you, regardless of whether the e-mail is spam or not.)

There is a final perspective. When someone sends an e-mail message, they have a constitutional right to do so. Despite all the protestations against spamming (which, as we have seen, are not nearly so straightforward as claiming that anyone who sends you an unwanted message has no right to do so), there is the issue of the legal right to send you a message.

From a legal standpoint, what is the difference between sending a letter to your mailbox and sending a letter to you electronically? The answer is not much. What makes the difference is not the legality of spamming but the economics of spamming. When you send a letter to someone's post box, you incur the cost of the stamp, the letter, the printing of the letter, and so forth. On a unit cost basis, it may cost you from $1.00 to $2.00 to send a letter. From an economic standpoint, it does not make sense for the mailer to send out millions of letters. Therefore, the sender has great incentive to not send a letter to someone who does not want to receive it.

But what about e-mails? The cost of physical preparation and e-mailing is – for all practical purposes – zero. Once the e- mailer has the list, it costs no more to send 1,000 e-mails than it does to send 100,000 e-mails. The constitutional and legal rights are not the limiting factors when it comes to the differences between postal letters and e-mail. The economic issue is the limiting factor.

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