Dr. Michael Birnhack, senior lecturer in the Faculty of Law at the University of Haifa, does not deliberate for even a second when asked if the laws against spam currently being debated by the Knesset will really reduce the number of unwanted messages arriving in the e-mail box of every Web surfer.
"No," he says, "but there is still a point to legislation on this subject."
Spam is one of the burning issues on the Internet agenda, due to the bother of repeatedly deleting unwanted mail, the cost of time wasted deleting it ($10 billion, according to the Americans), the privacy threat it poses in the eyes of many surfers and, of course, the financial costs to the Internet service providers who have to store and relay spam to its destination.
After crossing the 50 percent mark in the summer of 2003 - more than half of all e-mail sent that summer was spam - its proportions have recently reached 66 percent of all messages traversing the Internet, and countries in the western world have begun to battle this phenomenon with legislation. Last Wednesday a bill against spam, submitted by MK Roman Bronfman (Meretz), passed its preliminary reading in the Knesset. A similar bill initiated by the Communications Ministry is also on the Knesset's agenda.
Bronfman's bill, an amendment to the Protection of Privacy Law, 5741-1981, proposes establishing a database for registering all the surfers who have declared that they are not interested in receiving "unsolicited messages." Advertisers will have to check whether the particulars of a recipient do not appear in the database 30 days before sending a mass mailing, and violation of the law will carry a penalty of NIS 1,290 per message, to be paid to each recipient.
The bill does not address the problem of spam that is not commercial (such as offers to adopt a puppy, requests for donations and political spam), nor the reasonable possibility that a surfer might be happy to receive advertising about television sets but not about electric kettles. Some spammers actually think the bill will do them good, and that most of the spam, which comes from abroad, will be totally unaffected.
"The bill is very good," says Amir Gans, owner of New Approach, which sends out about one million commercial e-mail messages daily. Last year Gans became the first Israeli to be sued for disseminating spam.
"It [the law] means that I am allowed to send [spam to people], apart from those who have asked that I not send to them," says Gans. "It establishes the situation and turns me into someone who legally advertises via e-mail. I hope that this law will also make it clear to people that advertising via e-mail is legitimate."
It is not difficult to understand Gans. From his perspective, and that of others who send commercial e-mail, an up-to-date database of e-mail addresses that is accessible and anchored in the law is a gold mine. According to the spammer, if an e-mail user declares that he does not want to receive ads for Viagra, this does not necessarily mean that he would object to receiving information about special offers on overseas air travel. An updated database will also enable the spammer to reduce the number of e-mails he sends that do not reach their destination.
Bronfman is aware that his bill is not perfect, but he says that its main significance is the declarative aspect.
"The bill will bring Israel's laws in line with those of the rest of the advanced world, will make it easier for consumers and will regulate this field, but will not put a cap on the flow. A long process is needed before that will happen," he says.
The Communications Ministry's bill takes a different approach but may well lead to similar results for surfers. The bill amends the Communications Law, expanding it to include a ban on sending e-mail, SMS and recorded telephone messages. In order to give advertisers an opportunity to interest potential customers in their products, advertisers will be allowed to send surfers a one-time message, offering them the option of receiving commercial e-mail in the future. If the potential customer does not explicitly state that he is not interested in receiving further e-mails, the advertiser will be allowed to continue to send the consumer as many messages as he wants, as long as they relate to a product or service similar to those the surfer has not rejected.
Under the amendment, a surfer who continues to receive spam after he tried to get rid of it in keeping with the regulations can sue the spammer in civil court for violating the Privacy Protection Law. They two bills will probably be combined before their final readings.
What is spam?
According to Birnhack, who will be leading a conference on spam at the University of Haifa on Thursday, man's difficulty in relating to cyberspace as something abstract results in an understandable tendency to relate to it as a physical place and therefore to try to apply to it rules that are common in the real world.
"People think that their e-mailbox is inside their personal computer in their home, so no one should be allowed to access it," explains Birnhack. "This is debatable, because even the physical mailbox is not exactly private, but is just outside one's home, with its opening accessible to anyone who wants to put something into it."
As in the case of pornography, it is easy to recognize spam when you see it, but much harder to define it. By the strictest definition, one probably acceptable to most Internet users, spam is any mail sent to their mailbox without the sender having been given the recipients' consent. A second definition, accepted by commercial organizations, advocates of freedom of speech and by some spammers themselves, says that e-mail can be considered spam only if it contains tainted material, if its offers are fraudulent or if there is no way of getting rid of it.
Israeli lawmakers have chosen the second definition, but have narrowed it to include only commercial e-mail and not any other type of mass mailing that could be quite irksome. Birnhack feels that this is actually a positive approach.
"I think it is good that they [the lawmakers] are not relating to political matters, as this concerns freedom of speech," says Birnhack, "or to donation solicitations, since I think there is still a value called social responsibility.
"The bother involved in deleting e-mails is minimal, and I am not impressed by the numbers the Americans spout concerning the cost of time it takes to delete them. On the other hand, the spammers do steal our attention - a tremendous resource that is constantly diminishing. Our public spaces are polluted with advertising that tries to steal a good part of our attention, and unwanted commercial spam has become part of the noise in our lives. I would be happy to prevent that, or at least reduce it."
Even though Birnhack says the bills will not be particularly effective, he supports their legislation for the simple reason that it returns the initiative to the public and to the state.
"If we throw up our hands," cautions Birnhack, "we are privatizing judgment and leaving it up to technology, or effectively to the people behind the technology - those who are committed only to their shareholders and to making more money. It's a problem."
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