IN DEFENSE OF (ETHICAL) SPAM.

After years of benign neglect, the anti-spam movement has finally begun to win some serious legal battles. At last count, ten states are drafting laws to regulate electronic junk mail. AOL, HotMail, and other ISPs have unleashed their lawyers on bulk e-mailers; spam king Sanford Wallace is apparently so desperate to find a friendly T3 line that he's offering to pay--gasp--as much as a penny for every thousand e-mails he's allowed to transmit.

In theory, of course, banning offers for phone sex and get-rich-quick schemes is something all fair-minded people should endorse. Trouble is, "spam" is one of those emotional icons--like "junk mail"--that often confuses more than it clarifies. Case in point: Amazon.com's Jeff Bezos recently sent a holiday e-mail message to 10,000 customers of his online bookstore. Most marketers would agree that Bezos has a real ongoing relationship with his customers; he offered recipients a chance to opt-out from future mailings and he didn't try to hide his return address. But playing by the rules doesn't seem to make a difference: Bezos still found himself accused of spamming.

So let's take a timeout on the anti-spam hysterics. The real question, we think, is whether there's any legitimate form of bulk e-mail--or should ethical marketers simply avoid all commercial uses of e-mail?

"It's only spam," some of our marketing friends insist, "when there's no relationship with the customer. E-mail marketing relies on targeted lists, not shotgun mailings."

Well, maybe. But most of these "relationships" turn out to be little more than wishful thinking, a grown-up version of imaginary playmates. In reality, most people who buy software--or books, or almost any other product--don't feel they've made a friend or joined a club. At most, they may be favorably inclined to buy something again from the seller. But that's a statistical correlation, not a relationship with anyone.

And it's not clear that e-mail recipients even give a hoot about whether they have a relationship with the sender. We live in a world filled with untargeted advertising, and we usually don't worry about who's "selling our name" to yet another catalog company, or what demographic profile we happen to fit when we watch television or read magazines. As consumers, we've learned to pay more attention to the content of an offer than to how the advertiser happened to reach us.

That's an important point, because we suspect that most of the people who complain about spam are annoyed by trashy, offensive content, not by the absence of a pre-existing relationship with the advertiser. We're skeptical that the way to reduce complaints about spam is to build so-called "opt-in" lists of people who agree to accept bulk e-mail. It's probably a lot more productive to ask whether the e-mail we send passes a reasonable smell test. If the offer stinks, it'll probably offend even the most loyal customer.

It's worth remembering, moreover, that many people actually like to get e-mail, and they have a special feeling about the intimacy and responsiveness of the e-mail environment. They enjoy buying products online, filling out surveys, and offering feedback about everything from service quality to new business concepts. If we try too hard to protect consumers from unsolicited e-mail, we may disappoint more people than we please.

"Okay, pre-existing relationships probably don't count for much," our marketing friends might concede. "But what about e-mail campaigns that carpet-bomb a million people? Surely that's spam?"

Not necessarily. High-volume, no-holds-barred spam right now tends to attract fairly sleazy offers, but we expect legitimate direct-marketers will soon begin to scale up their e-mail efforts. Moreover, mass e-mail campaigns are particularly interesting as a way to reach new software sales prospects--people who own PCs but don't often visit retail stores or read magazine ads. If interesting software offers show up in their e-mail occasionally, we don't think many e-mail recipients will object too strenuously.

Which brings us back to the original question: Is there any form of spam that isn't ethical?

And we think the answer is simple--any campaign that hides behind a bogus return address. The big spammers long ago figured out that their biggest cost is processing bouncebacks and opt-out requests, and they escape this cost by routing all their return messages into electronic limbo. We don't need to take free e-mail away from consumers or implement utopian economic schemes to make carpet-bomb campaigns less profitable. We just need a straightforward legal decision (or perhaps a new law, if necessary) that penalizes spammers who conceal their true addresses. Solve that problem, and spam becomes just another self-limiting marketing technique.

TRAVIS COUNTY district judge Suzanne Covington on the damage caused by a spammer who hid behind another site's domain name: "The defendant's unauthorized use of that address constitutes a common-law nuisance and trespass." (Quoted in PC Week, 12/1/97)

WHOLE EARTH NETWORKS vice president of engineering Scott Mueller on his ISP's attitude toward spam: "Our operational definition of spam is stuff we get complaints about." (Quoted in Web Week, 1/5/98)

MICROSOFT chairman Bill Gates on his enthusiasm for emerging markets like China and India: "That's where we'll get a lot of our growth in the coming years. And because they usually don't have lots of legacy systems in place--you know, mainframes and minicomputers--we have a chance to have an even bigger share of the overall computer business than we do in the U.S. or Europe or Japan. You bet I think it's important." (Quoted in Fortune, 8/18/97)

SUN MICROSYSTEMS chief executive Scott McNealy on Microsoft's unwillingness to comply with his company's "Pure Java" standards: "They're really showing their stripes here. Of the 117 Java licensees, we've got one that doesn't want to play." (Quoted in Business Week, 10/20/97)

ZONA RESEARCH vice president Harry Fenick on Microsoft's Java standards dispute with Sun: "This is all a bunch of religious hoo-ha. The problem is that Java is not up to the mark, and Microsoft has had to optimize it for Windows." (Quoted in Infoworld, 9/29/97)

MICROSOFT's Windows 95 License Agreement on the risks of implementing Java: "JAVA TECHNOLOGY IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF JAVA TECHNOLOGY COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE."