No doubt it would be tough to draw a line between, say, "unsolicited commercial e-mail" and political e-mail. But we shouldn't exaggerate that problem. Go through the spam in your inbox and ask yourself whether there's any ambiguity about the spam you receive. Maybe it's just me, but my inbox is not filled with unsolicited political speech.
No doubt, too, it would be hard for the bounty hunter to actually discover who the spammer is. But this difficulty is also overblown. The one thing we know about the vast majority of spammers is that they are in business to make money. And the only way to get money from the sap who received the spam is to provide a simple way for the sap to link back to the spammer. If there's a way to buy something from the spammer, there's a way to charge the spammer if you catch him. And if enough of these spammers are charged, then the economics of dumping junk into inboxes will change enough to stop e-mail pollution.
Now sometimes, of course, the alleged spammer would be innocent. But that's exactly why we need people imposing punishments, not code. The difference between systems like SPEWS and systems like the one I'm proposing is that in the end, a personnot a machineis in charge of deciding whether or not the law has been violated. Human judgment is required. With the Berman bill, and with automated black holes, no judgment is required before the harm is done, nor do the victims have any effective appeal. Scream all you want at a DOS attack or black hole; it will function just the same.
Removing human judgment is just what the copyright extremists want. It shouldn't be a part of the antispammer's campaign. The good souls who fight spam on the Net should embrace the rule of law over the reign of code, and then turn their coding efforts toward assuring this law actually rules.
Lawrence Lessig is a professor of law at Stanford Law School and the author of The Future of Ideas: The Fate of the Commons in a Connected World and Code and Other Laws of Cyberspace. His next column will appear in December.