But what we need here is the kind of creativity in the adaptation of the law that coders evince when they build fantastically sophisticated filters for spam. If law as applied by the government is not likely to change the incentives of spammers, we should find law that is applied in a way that spammers would fear.
One such innovation would be a well-regulated bounty system. The law would require spam to be marked with a label. That’s the only requirement. But the penalty for not marking the spam with a label is either state prosecution, or prosecution through a bounty system. The FTC would set a number that it estimates would recruit a sufficient number of bounty hunters. Those bounty hunters would then be entitled to the bounty if they’re the first, or within the first five, to identify a responsible party associated with a noncomplying e-mail.
But how would a bounty hunter do that? Well, the first thing the bounty hunter would do is determine whether the regulation has been complied with. One part of that answer is simple; the other part, more complex. Whether a label is attached is simple. Whether the e-mail is commercial e-mail will turn upon a more complex judgment.
Once the bounty hunter is convinced the regulation has been breached, he or she must then identify a responsible party. And the key here is to follow an idea Senator John McCain introduced into the only spam legislation Congress has passed to date, the CAN-SPAM Act. That idea is to hold responsible either the person sending the e-mail, or the entity for which the spam is an advertisement.
In 99 percent of the cases, it will be almost impossible to identify the person sending the spam. The techniques used by spammers to hide that information are extremely sophisticated[67].
But the entity for which the spam is an advertisement is a different matter. Again, if the spam is going to work, there must be someone to whom I can give my money. If it is too difficult to give someone my money, then the spam won’t return the money it needs to pay.
So how can I track the entity for which the spam is an advertisement?
Here the credit card market would enter to help. Imagine a credit card — call it the “bounty hunters’ credit card” — that when verified, was always declined. But when that credit card was used, a special flag was attached to the transaction, and the credit card holder would get a report about the entity that attempted the charge. The sole purpose of this card would be to ferret out and identify misbehavior. Credit card companies could charge something special for this card or charge for each use. They should certainly charge to make it worthwhile for them. But with these credit cards in hand, bounty hunters could produce useable records about to whom money was intended to be sent. And with that data, the bounty hunter could make his claim for the bounty.
But what’s to stop some malicious sort from setting someone else up? Let’s say I hate my competitor, Ajax Cleaners. So I hire a spammer to send out spam to everyone in California, promoting a special deal at Ajax Cleaners. I set up an account so Ajax received the money, and then I use my bounty credit card to nail Ajax. I show up at the FTC to collect my bounty; the FTC issues a substantial fine to Ajax. Ajax goes out of business.
This is a substantial concern with any bounty system. But it too can be dealt with through a careful reckoning of incentives. First, and obviously, the regulation should make such fraud punishable by death. (Ok, not death, but by a significant punishment). And second, any person or company charged with a violation of this spam statute could assert, under oath, that it did not hire or direct any entity to send spam on its behalf. If such an assertion is made, then the company would not be liable for any penalty. But the assertion would include a very substantial penalty if it is proven false — a penalty that would include forfeiture of both personal and corporate assets. A company signing such an oath once would likely be given the benefit of the doubt. But a company or individual signing such an oath more than once would be a target for investigation by the government. And by this stage, the exposure that the spammers would be facing would be enough to make spamming a business that no longer pays.
Here again, then, the solution is a mixed modality strategy. A LAW creates the incentive for a certain change in the CODE of spam (it now comes labeled). That law is enforced through a complex set of MARKET and NORM-based incentives — both the incentive to be a bounty hunter, which is both financial and normative (people really think spammers are acting badly), as well as the incentive to produce bounty credit cards. If done right, the mix of these modalities would change the incentives spammers face. And, if done right, the change could be enough to drive most spammers into different businesses.
Of course there are limits to this strategy. It won’t work well with foreign sites. Nor with spammers who have ideological (or pathological) interests. But these spammers could then be the target of the code-based solutions that I described at the start. Once the vast majority of commercially rational spam is eliminated, the outside cases can be dealt with more directly.
This has been a long section, but it makes a couple important points. The first is a point about perspective: to say whether a regulation “abridges the freedom of speech, or of the press” we need a baseline for comparison. The regulations I describe in this section are designed to restore the effective regulation of real space. In that sense, in my view, they don’t “abridge” speech.
Second, these examples show how doing nothing can be worse for free-speech values than regulating speech. The consequence of no legal regulation to channel porn is an explosion of bad code regulation to deal with porn. The consequence of no effective legal regulation to deal with spam is an explosion of bad code that has broken e-mail. No law, in other words, sometimes produces bad code. Polk Wagner makes the same point: “law and software together define the regulatory condition. Less law does not necessarily mean more freedom[68]”. As code and law are both regulators (even if different sorts of regulators) we should be avoiding bad regulation of whatever sort.
Third, these examples evince the mixed modality strategy that regulating cyberspace always is. There is no silver bullet — whether East Coast code or West Coast code. There is instead a mix of techniques — modalities that must be balanced to achieve a particular regulatory end. That mix must reckon the interaction among regulators. The question, as Polk Wagner describes it, is for an equilibrium. But the law has an important role in tweaking that mix to assure the balance that advances a particular policy.
Here, by regulating smartly, we could avoid the destructive code-based regulation that would fill the regulatory gap. That would, in turn, advance free speech interests.
The Regulations of Speech: Free Culture
The third context in which to consider the special relevance of cyberspace to free speech follows directly from Chapter 10. As I describe there, the interaction between the architecture of copyright law and the architecture of digital networks produces an explosion of creativity within reach of copyright never contemplated by any legislature.
The elements in that change are simple. Copyright law regulates, at a minimum, “copies.” Digital networks function by making “copies”: There’s no way to use a work in a digital environment without making a copy. Thus, every single use of creative work in a digital environment triggers, in theory at least, copyright.
67.
See Spammer-X, Jeffrey Polsuns and Stu Sjouwerman,
68.
R. Polk Wagner, "On Software Regulation,"