RICO Charges Against Spammers

This InfoWorld article indicates that Senator Bill Nelson (D-FL) has introduced legislation that would allow spammers. Supposedly aimed at spammers who use email to promote or engage in otherwise illegal activity, the key advantage Nelson sees in invoking RICO statutes is that they allow victims to file suit against spammers and allows seizure of spammer assets.

As much as I oppose spam, I am 100% against this move. I'm not a fan of legislation as a solution to the spam problem, believing as John Patrick does that it will likely do little good, and probably considerable harm. The thought of RICO laws coming into play is downright scary.

RICO laws are just plain wrong. They have been an effective weapon against organized crime (though, as a layman I wonder whether they've really been as effective as prosecutors want me to believe), and I won't argue about the pressing need for doing something about organized crime... but I grew up in an American where there was no such thing as an "outlawed organization".

I remember very distinctly listening to news reports about bombings in the UK in the 60s and 70s, hearing announcers refer to "The Outlawed Irish Republican Army". It was never just "The Irish Republican Army". It was always "The Outlawed..." as if it were an official part of the title. And I remember realizing even back then, as a child, that in our free country there could be outlaws, and there could be organizations of outlaws, but we don't have any such thing as outlawed organizations here. We should be proud of that. Even Enron, an enterprise run by criminals and as nefarious as any, can not, should not, and is not treated as an "outlawed organization". A corporation can be tried, convicted, and punished, and it may end up being put out of busienss, but even Andersen was not "outlawed".

RICO, however, changed our (possibly unique) claim as a society to a vital moral high ground. RICO defines an organization as being outlawed, and convicts members for being part of it. RICO has been used to go after drug dealers. Good idea, but still a bad law. RICO has been used to go after prostitution rings, and even after webmasters who run adult bulletin boards that are frequented by prostitutes and clients. RICO has been used to go after Pro-Life protesters. My personal beliefs, or yours, about these issues are irrelevant. The point I want to drive home is: where does it stop? What organizations will be banned next?

Would I cry if and when RICO is invoked against al Qaeda? That, surely is a crimianl organization... but the crucial distinction that I make is that while it is criminal in nature, it can not per se be an outlawed organization. An organization of outlaws with criminal purpose, yes. Outlawed itself, no! The outlaws are guilty of conspiracy, but the extent of that conspiracy ends with the extent of the specific criminal acts that they committed or planned to commit together. It should not encompass the totality of the organizatation. To make it so is a violation of our most basic principles: e.g., freedom of association and due process.

Back to the subject of spam. The effect of RICO laws on spam simply can not be worth it to us, as a society, to endure a further fundamental weakening in the principles that set us apart as a free society.

By the way, I'm no lunatic fringe Constitutionalist. You won't see me wearing one of those t-shirts with the Bill of Rights scratched out by the phrase "Void Where Prohibited By Law". I don't even consider myself, much to many of my friend's dismay, to be a Libertarian. In most respects, I believe that the promise of our free society is being fulfilled by the parties, politicians and officials of our localities, states, and country. But RICO is wrong, and it will be a mistake to use it against spammers. It won't be a disasterous error. Our society will not crumble. It might even seem better off -- on the off chance that it actually works. But it will not be better off. Let's not go there.