Editor’s note: Last week, EarthLink won a $16 million judgment against a spammer whose indentity was discovered in New York. But the spam war is far from over. Hanah Metchis, research associate for the Project on Technology and Innovation at the Competitive Enterprise Institute, contends that more laws is not the answer.

WASHINGTON,There are few things in this world that all reasonable people agree on. Some are foundational to society: murder is bad. Others are hard-wired: baby animals are cute. And there’s this one: e-mail spam is annoying, or worse.

Congress is hoping to regulate spam away. Two bills proposed this year address the problem, and others are in the works. The first is the Computer Owners’ Bill of Rights, which would create a national “do not e-mail” list. Senders of unsolicited marketing e-mail would have to make sure none of these people are on their mailing list. The second bill is the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN SPAM Act). This bill bans many methods used by spammers. Some provisions are overbroad (what is a “misleading” subject line?). Others address real wrongs, such as falsified headers and fake opt-out mechanisms. But no new law will stop spam, or even reduce it to manageable levels.

Who are they?

The problem of spam starts with the fact that it’s very easy for spammers to hide their true identities and contact information. When e-mail headers are forged, it is difficult to discover who actually sent the e-mail. Police or private companies contemplating a lawsuit must hire experts to trace the e-mail to its source. Once a spammer is found, local police must often pursue him out of state, or even to foreign countries. Certain countries, such as China, are known for being “spam havens” where law enforcement officials are reluctant to cooperate with investigations. Because of these difficulties, anti-spam laws are rarely enforced.

Congress often passes laws knowing that there will be far more offenders than prosecutions, hoping that severe penalties will act as a deterrent. But research has shown that the likelihood of being caught is far more important to criminals than the possible penalties. That is, a law that is effectively enforced but carries a light penalty will be a much better deterrent than a law with a heavy penalty that is rarely enforced.

Penalties for spamming have not, in fact, deterred spammers. Twenty-nine states have passed anti-spam legislation, and fraudulent advertising is illegal regardless of the medium through which it’s distributed. And yet, because these laws are not regularly enforced, the amount of spam is constantly growing.

Avoid the ‘do not mail’ solution

A “do not e-mail list” law is an even worse solution. A few unethical spammers could turn such a list into an absolute nightmare. It would be a jackpot of confirmed, legitimate e-mail addresses that are used by real people. The list would have to be publicly available, so spammers could remove the registered addresses from their mailing lists. Spammers could, instead, purposely use those addresses for their mailings.

In the past, most technological solutions to spam have been either heavy-handed, like blacklists that block lots of non-spam e-mails, or ineffective, like word-based filtering systems. But spam is an increasingly serious problem for ISP’s and businesses, now accounting for 40 percent of e-mail traffic, double its level six months ago. With such a huge rate of growth, it’s not surprising that innovation in technological anti-spam solutions is taking off at incredible rates.

There will never be a “silver bullet” solution. Still, many people are benefiting from Bayesian filters that learn to recognize spam based on the user’s decisions, or challenge-response systems that verify a message was sent by a real person, not a bulk mail program. For ISP’s, there are products with prioritization methods to delay spam like bulk postal mail, bond posting to identify legitimate bulk mailers and hold them accountable, and processes that trick spammers into thinking they have the wrong address.

This evolving variety of approaches is more likely to alleviate the problem than Congressional solutions. Laws will only be effective with better enforcement. Technological solutions may well be more efficient and less expensive.

C:\SPIN is produced by the Competitive Enterprise Institute.

CEI: www.cei.org