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Google and Verizon Offer a Gift to Spammers

John Levine

Earlier today, Google and Verizon offered a widely publicized "Proposal for an Open Internet." There's been extensive comment with lots of reasons not to like it, but one I haven't seen is that the proposal would make it much harder to filter so-called "mainsleaze" spam.

The Framework Proposal says:

In providing broadband Internet access service, a provider would be prohibited from engaging in undue discrimination against any lawful Internet content, application, or service in a manner that causes meaningful harm to competition or to users. Prioritization of Internet traffic would be presumed inconsistent with the non-discrimination standard, but the presumption could be rebutted.

The problem is that under the pitifully weak CAN-SPAM law, a lot of spam is entirely legal. Under CAN-SPAM, if an e-mailed ad isn't fraudulent, has a way to unsubscribe, and includes the postal address of the advertiser, it's legal, whether you've asked for it or not. You can tell them to stop, in which case they get 10 days to stop spamming you. But until you tell each individual spammer to stop, since they're sending "lawful Internet content", the ISP is supposed to deliver it.

Google's intention is probably not to make it a field day for spam, since a subsequent section says:

Reasonable network management includes any technically sound practice: to ... address traffic that is unwanted by or harmful to users, the provider's network, or the Internet; to ensure service quality to a subscriber; to provide services or capabilities consistent with a consumer's choices;

A later section says that in case of irreconcilable disagreements, the FCC is the referee. That bit about unwanted or harmful to users is obviously intended to refer to spam filtering, but it doesn't solve the problem.

The business model of the Internet has until now been what I've called Mutually Assured Destruction. Networks connect to each other because they think it will be to their mutual benefit to do so. When large networks connect, it's typically as peers, passing traffic back and forth without payment, other than perhaps sharing the physical cost of the connection point. If one network sends unwanted traffic to the other, the recipient network can refuse or discard the traffic without notice. This means that networks are, out of self-interest, polite to each other in what they do, since impolite networks can be and occasionally are disconnected without notice. When that happens, it's up to the offending network to solve the problem and persuade the other network to resume delivering traffic. This is the essence of the way that spam filtering works; recipient ISPs block or drop the spam, and senders try with more or less success to persude them to resume delivering it.

But the Google-Verizon plan flips this on its head. Now, if traffic is "lawful", the rules say the recipient network has to deliver it unless they can show that it's "unwanted" by their users. If I were a spammer sending legal spam, perhaps like this guy, as soon as my mail was blocked I would rush to the FCC and complain that the nasty ISP is blocking my perfectly legal spam. Even if the ISP can show that they have users complaining about his stuff, so the network management exception applies, the FCC, being a government agency, is likely to tell the ISP not to block anything until they rule on his complaint, which could easily take months, if not years, during which time the spam continues to flow.

Although network neutrality sounds like a good idea, it's not, because it breaks the underlying model of the way the Internet works. It's certainly true that in most parts of the country, there's only one or two viable broadband ISPs, the phone company and the cable company, and they can't be trusted to run the network the way their users want. But the right way to address the excessive market power isn't to regulate the ISPs, it's for the FCC to put the rules back the way they were in the early 1990s, so telcos and, ideally, cable companies have to provide the underlying connections to any ISP on the same terms, so we have enough competing ISPs that if you don't like one, you can just switch to another. This isn't a pipe dream — countries including the UK have done exactly that, with the result that their residents have a wide range of ISPs, who provide faster service at lower prices than we get in the US.

But good luck explaining that to your Congressman.

By John Levine, Author, Consultant & Speaker. More blog posts from John Levine can also be read here.

Related topics: Access Providers, Law, Policy & Regulation, Spam

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