Is deceptive spam fraud?

Spam is annoying. But a spam filter will cut down on the volume substantially, and deleting what gets through the filter is usually not an outrageous burden. If I get an email ad for breast enhancement and the subject line is BIGGER BOOBS TODAY, and I’m satisfied with my current cup size, I can delete the message without attending to it for more than a fraction of a second. The same is true when relatives of dead tyrants offer to split the Swiss bank account with me.

Maybe there needs to be a legally enforceable do-not-spam list, or some non-legal approach managed by the consumers’ ISPs (e.g., a tiny per-message charge) to discourage bulk spamming, but it’s a reasonably manageable problem most of the time. (It’s less manageable when I’m on the road, paying by the minute to connect from a hotel phone, and using Webmail, which doesn’t implement filters, over a slow connection.)

Moreover, while the messages are annoying there’s at least an argument that the senders are within what ought to be their rights in asking me whether I want to do business with them.

But a message whose subject line is “Order Confirmation” or “Responding to your request” or “Your phone call from last week” or whose “From:” address is or is a different proposition. Those messages look as if they can’t be safely ignored. (Well, the sysadmin and Microsoft ones don’t appear that way to me now, but they did the first couple of times.) Even when I know most of them are spam, I can’t just bulk-delete them without sometimes missing a message I wanted to see.

So I wind up opening them before deleting, which takes time: and time, as the old saying has it, is what life’s made of. The senders of those emails are fooling me into spending my irreplaceable time, and attention, on their worse-than-worthless messages. (So are the bulk mailers who send their pitches disguised as checks; fortunately, most of them are too cheap to use first-class mail, and the bulk-mail-rate legend where the postage ought to be is a dead giveaway; no one sends real checks, or real bills, by bulk mail.)

Here, then, is my question: If time has value, then why doesn’t fooling someone out of some of his time constitute fraud? The loss to any one victim from any one email is de minimus, but the aggregate losses to an individual over a year aren’t, nor are the aggregate losses to all the recipients of a mass false-cover spam.

I’m told that under California law it’s only fraud if there’s a loss of personal property. (False-cover spam might still be a deceptive business practice under Cal. Business and Professions Code 17200.) Federal law, by contrast, covers such intangible losses as depriving the public of the honest services of its employees, but the basic mail fraud statute talks of schemes “to obtain money or property.”

Still, assuming that the current defintion of fraud doesn’t extend to defrauding people of their time, why shouldn’t the definition be changed?

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: