Making the Punishment Fit the Crime

My object all sublime I shall achieve in time — To let the punishment fit the crime — The punishment fit the crime;

The FTC would do well to take a lesson from Gilbert and Sullivan's Mikado. Legal sanctions against spammers should be sufficient to not just to prevent that individual from spamming, but to deter others from similar activities. In March we were delighted to see the FTC take action against the a number of people responsible for "free gift" SMS spam. Recently we were disappointed to see the first judgement, which barely amounts to a slap on the wrist, for Henry Nolan Kelly.

Kelly is alleged to have sent 20,000,000 spam text messages. I have to say 'alleged' as Kelly does not admit to this in the settlement. He is ordered to stop spamming, and he would have to pay a fine equal to the $60,950 he might hypothetically have made sending these alleged text messages, but since he has already spent that money, that part of the judgement is suspended. I hope his lawyer sent him a big bill, because that is the only downside he might see out of this affair.

It's now open season on SMS spam. If you're a bright young hacker, you can weigh the odds. For email spam you can go to prison under the CAN-SPAM act. For SMS spam, you get told to stop spamming, and, oh, by they way, if you haven't spent all the money you made, it might be nice if you gave some to the government. The main law governing SMS spam, the Telephone Consumer Protection Act, does not include the possibility of jail time. There is a possible civil penalty of $500 or more per message. This would put Kelly at risk of a billion dollar lawsuit from spam victims, but what's the point? If he can't pay $60K, he can't pay a billion dollars, either.

There is a ray of hope, however. Kelly's settlement includes a clause saying that he has to cooperate with future investigations. He was only one of twenty nine people and corporations who were charged by the FTC. The most important ones from the point of preventing this sort of activity are not the spammers themselves, but the people running the web sites allowing the spammers to monetize their activities. If Kelly's cooperation makes it possible for the FTC to get take punitive action against these enablers, then perhaps it was worth while to let him off without penalties. Let's hope this is the case, and not that the FTC thinks spammers deserve the same kid glove treatment they give to Wall Street.

Legal action against spammers is only part of the solution to the spam problem, especially when the penalties are so minor. Effective filtering of spam within the network will force the spammers out of business far faster. Kelly was alleged to have made an average just 0.3 cents per message. Policy based rate limiting and content based filtering would have prevented delivery of at least 95% of those messages, pushing his income down to 0.015 cents per attempted send. That would not have covered the costs of sending the messages in the first place.