There are certain things that smart businesspeople don't do. They don't try to change a table saw blade with the switch in the "on" position. They don't peer up the barrel of a loaded shotgun while holding the firearm aloft, finger on the trigger.
And most of all, they don't tick off a computer software leviathan such as Microsoft Corp. by illegally defiling its life's work.
The leeches who pollute the Internet with billions of pieces of spam each year may wish to note that the operative word is "illegal.”
Spam is against the law in the United States and lawmakers in that country have adopted an innovative tactic to make the law work.
Federal and several state governments are sharing their traditionally exclusive enforcement power with the private sector by giving corporations an incentive to go after this scum of e-commerce with all the fury that their vast resources can marshal.
The incentive consists of allowing an Internet service provider to claim a sum of money in statutory damages - $1,000 or actual damages (whichever is greater) in the State of Washington, for example - for each spam message received.
Policymakers see this incentive as essential because spam threatens to subvert a simple, economical medium - the Internet - that governments around the world want the public to embrace for e-commerce.
And Industry Canada is now reviewing a 60-page task force report that recommends the adoption of Canadian anti-spam laws that contain similar tactics.
"Spam is a direct threat to the viability of the Internet as an effective means of communication," says Stopping Spam: Creating a Stronger, Safer Internet, submitted in May 2005 to Industry Minister David Emerson by the government-business Task Force on Spam.
"A number of commercial organizations are now considering moving their e-mail services to closed networks, which would undermine the Internet as a platform for commerce."
Notes Aaron Kornblum of Redmond, Wash., an attorney with Microsoft's internet safety enforcement team: "What we're talking about is the degradation of the Internet."
The effects of this cyberpollution are not lost on Microsoft owner Bill Gates, who is known to loathe spammers and their gratingly importunate pitches for penile and breast implants, baldness cures, fraudulent get-rich schemes, porn and cheap medications.
With resources rivalling those of a state attorney general's office, Microsoft sets technological bait. One of its most effective is the use of 130,000 Hotmail "trap accounts" - dummy e-mail addresses set up specifically to capture spam.
Armed with this e-spoor, cybersleuths then hunt the senders down.
Microsoft also has been known to file "John Doe" lawsuits, proceeding with the litigation without knowing the identity of the defendants but counting on the subpoena process to find out who they are.
Then Microsoft's lawyers, who floss their teeth with barbed wire, get to toy with these slugs like my wife's old tomcat would with a spider in a bathtub. Jasper would idly amuse himself by batting the interloper about with his paw. Then he would eat it.
Sometimes Microsoft goes it alone. But oft-times the company partners with the Federal Trade Commission (FTC) or state governments, donating technological support in a criminal probe.
These endeavours have produced dramatic results in the past couple of years.
The FTC announced in July 2005 - after an investigation in which Microsoft provided technical assistance - that it had charged seven "X-rated" spammers in Arizona, Florida, Michigan, Nevada and Washington, D.C., with violations of the federal Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) and the FTC's Adult Labelling Rule.
The spammers were charged after they failed to abide by the "brown-paper wrapper" provisions of this 2003 legislation by displaying the phrase "SEXUALLY EXPLICIT" in the subject line of the message, and to ensure that the initially viewable area did not contain graphic material.
Four of these spammers were pummeled into agreeing to $1.16 million US in civil penalties. "This X-rated e-mail is electronic flashing," Lydia Parnes of Washington, D.C., the FTC's director of the bureau of consumer protection, said in a news release.
Spam king Scott Richter of New York agreed to a $7-million US settlement with Microsoft after the software giant joined forces with the New York Attorney General in December 2003 in a lawsuit, Microsoft announced last month.
Microsoft claimed that Richter and his companies violated federal and Washington state law by using phoney subject lines (ie: "re: your home loan"), fake Internet domain names and IP addresses and forged sender names.
Richter sent or helped others send as many as 38 billion e-mails a year. "This one legal victory will not end spam, but it is a relief to know that the magnitude of spam attacks need no longer be measured on this particular Richter scale," Brad Smith, Microsoft's general counsel, said in an open letter after the settlement.
In all, Microsoft has filed 111 spam lawsuits, 73 of which were under CAN-SPAM which came into force in January 2004. Governments have used the legal process to disgorge their quarry of their ill-gotten gains. "Spammers are getting the message," Smith said in the letter. "Illegal spam is a riskier way to make a living."
The Canadian task force report recommends that the federal government pass laws that ban spam and that these offences be civil- and strict-liability offences, with criminal liability for the more outrageous or repeated offences.
"There should be an appropriate private right of action available to persons, both individuals and corporations," says the report, taking its cue from the U.S. "There should be meaningful statutory damages available to persons who bring civil action."
The report also recommends that Industry Canada establish an enforcement "focal point" - a centre reportable to the minister and responsible for policy oversight and co-ordination, public education and law enforcement support.
"We need to rid the Internet of the scourge of spam if Canada is going to be able to reap the full benefit of a strong e-economy," Minister Emerson said in a news release. "These recommendations merit strong consideration."
Industry Canada's Competition Bureau has enjoyed Microsoft's support. Other companies that have assisted law enforcement agencies include America Online, EarthLink, Yahoo! and Pfizer.
(Brock Ketcham is an Edmonton-based writer who specializes in consumer and public policy issues. He can be reached at brock@businessedge.ca)
