Comment Spam and You

So I've been thinking about comment spam.  For those of you who don't read many blogs, allow me to explain, since Resistance is futile! has so far been underneath the radar enough to avoid the worst of it.

You will notice down at the bottom of this post that there is a link to "comments."  I feel like I have to point this out, since so few of you actually ever leave any.  But popular blogs, with thousands of readers (see Knowledge is Power and IMAO, for instance), often get dozens--sometimes hundreds--of comments on an individual post.  Problem is, evil spammers have taken this opportunity to spread their vile filth, using up the resources of us bloggers.  How does this happen?

Let's say you are an evil spammer.  Say you have a website that sells, for argument's sake, pornographic DVD's.  You want everyone in the world to go to your website.  So you set up automated programs that visit blogs and leave comments that direct readers your way.  Some of your work is obvious (and is often easily filtered out by various blogger tools).  A comment that says "come to my website and get your porno DVD's" stands out.  But it takes effort for bloggers to clean up that crap.  Some bloggers use manual removal (deleting them one at a time).  When you only have a few comment spams, this works fine.  But it does take time one could better spend on other things.  That's time the spammers have stolen from you.  And when you have hundreds or thousands of spams in your archives, it becomes a monumental task.

But then there is even more invidious spam.  Let's say you are reading over the comments to your latest post, and you see some guy leaves a comment that is innocuous, but unrelated to the post topic.  Maybe your post is about politics, and the comment is a short note about something innocent, but unrelated, like a quote from Shakespeare or The Bible.  And of course, every comment comes with some sort of ID from the commenter, either an e-mail address, or an URL.  Now out of curiosity, you click on the URL that was left by your Bible quoter, and to your surprise, you are redirected to a purveyor of porno DVD's.  This type of comment spam is harder to filter out, harder to find, but is every bit as damaging.  Here is an example that isn't too offensive.  Notice the last three comments: they are ads with links that take you to commercial sites: hardly the type of commentary SondraK is looking for.

Ads for Direct TV and Debt Consolidation are one thing; but many blogs are plagued with ads for all sorts of adult-oriented products and services.  Think about this: if you run a "clean" blog fit for children of all ages, do you want some sicko linking his porn sales on your hard drive space, corrupting your audience, and sucking up your valuable bandwidth?  Of course not!  But what are you to do?

Well, you can get various tools like MT Blacklist.  That takes time and effort to use, and it isn't perfect.  Plus, sometimes it blocks legitimate comments.  Or you can be like me and use TypePad, which has pretty powerful spam filters.  But then TypePad isn't free.  Or you can make your readers go through ever more burdensome hoops to post, like requiring registration or making them type in code words to comment.  But when you burden your readers, even a little bit, it reduces the number of comments.  And for a popular blog, the comments can be a real added value, when they are free of spam.

And that's the biggest problem.  A blog is a powerful tool.  People who will never meet in real life can connect through the comments on a blog and share information.  That makes blogging a particularly powerful tool when it comes to things like double-checking the mainstream media.  Just ask Dan Rather.  But when 90 out of 100 comments turn out to be ads for larger penises, on-line poker, and the like, the system quickly breaks down and becomes worthless.  Take a look at the comments to this post by Frank J.  Scroll down and after about a fifth the way through, it suddenly devolves into one long stream of ads for everything under the sun, much of it not fit for children (for instance, if ads for hard core porn offend you, skip this and just take my word for it).

Losing control of your blog's comments reduces the value of your blog.

Consider the plight of Rachel Lucas.  Rachel was the first blogger I read on a regular basis.  You could say she is a sort of "fairy blog mother" for getting me interested in the new medium.  Back when her blog was just getting popular, I was a regular commenter.  I like to think that my contributions helped make her blog better.  And then replies to my comments from other readers helped me learn more and sparked debate.  Comments made the experience good and drew me into the medium.  But over time, she began to have more and more problems.  Granted, as her readers will attest, most of her problems were more directed at e-mail.  But she eventually had to turn off her comments as well, and her new blog, Blue-Eyed Infidel, is comment-free.  She just can't handle the work needed to keep her comments clean.  Some of her problems come from commenters not staying civil.  But comment spam is also a big part of the problem.

This is a shame.  Without comments enabled, her blog isn't nearly as wonderful as it once was.  She is not alone.

I was just reading Powerline, one of the best blogs for political news.  Powerline hasn't had comments open, probably for the same reasons as Rachel.  But they had been using trackbacks.  Trackbacks, for those of you new to the concept, are a way of saying "look over here."  Bloggers use them to acknowledge other bloggers.  For instance, if I read something on Powerline and want to write about it, I would post a link to their article, write my own commentary, then send them a trackback so they will know "hey, that Gullyborg fellow had this to say about us."  Well, they recently had to stop using trackbacks because of spam.  I'd like to send them a trackback so they know I'm writing about this, but can't anymore.

How is this happening?  Spammers, the evil spawns of Satan that they are, figured out that some popular blogs aren't using comments.  So instead they are sending trackback pings from their sales sites to blogger trackback lists.  The result?  People reading Powerline see a post they are interested in, go to the trackbacks to see who else is writing about the same topic, and get subversively directed to sales sites.  That makes Powerline look bad when the links go to gambling or porn.  Plus it takes up Powerline's resources.  The end result: Powerline loses some of what makes it a great blog for spreading important political news and commentary.  And all bloggers are hurt as a result.

The more popular your blog is, the more valuable your comments and trackback are.  But at the same time, the more valuable your comments and trackback are, the more they are targeted by spam attacks.

So what are we to do?

I am thinking about class-action lawsuits.

Now keep in mind, I am only a law student, not a lawyer.  And my legal education to date has included little in the way of class action lawsuits, and practically nothing on the new and fluid field of cyber law.  So I know practically nothing of value here.  But hopefully someone out there reading this has a better legal background and can add to the discussion; for now, my comments and trackback are open and available--spammers just don't care enough about me yet.

Here are some thoughts:

First off, when spammers leave ads in comments, it is an invasion of your space.  That is trespass.  Not in the traditional "get off my land" sense, but what lawyers call "trespass to chattels."  In the old days, this was the type of action you had when someone interfered with your ability to use your property; for instance, "borrowing" something of yours and then giving it back (taking a car on a "joyride").  This didn't actually take away your property, but it deprived you of your ability to use it.  Comment spam is like that.  Bloggers pay for certain resources.  We pay hosting ISP's for the use of hard drive space.  We pay for the use of bandwidth.  We are basically paying for a property right, the same way a renter pays his landlord for the rights to use an apartment as living space.  Comment spam gets in the way of our ability to use our blogs the way we want to use them.

Second off, there is the tort of sexual harassment.  When your web space is used to put up ads for pornography or penis enhancement, it causes real harm.  I may be able to tolerate adult entertainment for myself in the privacy of my own home.  But when it takes up space on my blog, it affects me.  It links me to something I think shouldn't be public.  I worry that my friends' kids might stumble onto adult content through my website.  That offends me.  It offends me deeply.  The thought of it makes me feel like I am being used in a sexual way against my will.  If someone I don't know touches me in an unwanted sexual way, that is not just a tort, but also a crime.  Shouldn't it be just as much a tort and crime when my website is touched in an unwanted sexual way?

Finally, there is contract law.  You may have noticed I have a legal notice for advertisers on my main page.  Thus far, I haven't been able to collect.  The handful of spammers that have left their ads on my site have eluded capture (more on tracking them down later).  But trends in contract law look like they are going in favor of bloggers who have similar "boilerplate" on their sites.  Courts tend to enforce contracts entered into by users who do things like "click here to continue" and such (keep that in mind next time you blindly accept the terms on service on software!).  So if you can track them down, you can collect.  The only legal catch seems to be that the terms must not be "unconscionable."  What does that mean?  It means a contract to pay millions of dollars in exchange for clicking on a link will be probably not be upheld.  But a contract to pay a reasonable fee for services will be.  A reasonable fee could be anything like a few hundred dollars for a small blog, or many thousands of dollars for a blog with a huge reader base.  Every blogger should have something like this on his site, with terms tailored to the individual blog.

So what does this all add up to?

I think that there could be a potential for a good legal team to make a handsome profit representing the blogosphere in a class-action lawsuit.  Few lawyers will take on a case without a good chance to make a profit.  That means either pay them by the hour regardless of outcome, or agree on a contingency fee if you win.  I don't think too many bloggers have the disposable cash to hire a lawyer to fight comment spam on their own.  And individually, there probably isn't enough potential for high damage awards to make a contingency fee too appealing.  But there are millions of bloggers.  And thousands of us (at least) have received at least a few comment spams.  Add it all up, and things look different.  I can't imagine a lawyer taking this on by the hour, but with thousands or even millions of plaintiffs, the potential damage award total can be staggering.  That means a class action lawsuit against spammers could lure in top notch legal help, because 40% of the damages could make a few lawyers very, very rich.

The problem is winning.  I have no idea if a case like this is winnable.  Nor do I have any idea if there would be a way to collect damages.  Many of the spammers are overseas.  Just establishing jurisdiction and getting them into an American courthouse could be a challenge.  And enforcing a judgment against overseas defendants could be tough, especially if they are in a country that doesn't have a good relationship with the U.S.  And finally there is the problem of identifying the worst offenders.  I can't even track down the handful of spammers who have hit my site to threaten them with lawsuits.  I wouldn't know where to begin hunting down the worst offenders, the big companies with the deep pockets.

But then, I don't have to know the answers.  There are plenty of readers out there with far better legal minds than mine, and far better investigative instincts.  And I am sure most of them are as fed up with internet spam in general as I am.  The real problem is just getting us all on the same page.

So what do I propose?

First off, all bloggers need to start thinking in terms of a unified front against spam.

Second, we need to start thinking in terms of damages: calculating time spent cleaning up spam, money spent on IT professionals or spam-fighting services, percentages of drive space and bandwidth consumed by spam, and the impact of comment spam on website use and enjoyment.

Third, every blogger with comments and/or trackbacks enabled needs to have a posted advertising policy, with a sensible cost for services.  Then we must start tracking how many comment spams we get to calculate contractual obligations.

Finally, we need some leadership to step up and be the point for a class action suit.  I'm happy to help out as best as I can, but I just don't have the experience to offer much yet.  I will be e-mailing this post to Powerline: those guys are highly experienced lawyers, and they have a personal interest in this.  Maybe they will be able to help out.  If not them, maybe one or more of the blogosphere's other prominent lawyers (are you reading this, Glenn Reynolds?) will take an interest.  So I urge all you readers to spread the word about this idea, share this post with legal experts and IT professionals experienced in cyber law and tracking down offenders.

Together we can win this fight.

Comments

[Karl]

Have you sent this to the EFF as well?
(http://www.eff.org) They might also have an interest in your ideas...

[The Patriette]

Good post - I am all in favor of doing whatever it takes (banning it, taking legal action, public execution of spammers, etc.) to stop spam.

Just FYI, in the past month (although traffic to my site has slowed to a crawl due to my lack of posting and busy schedule) my server has banned trackbacks and blocked some commenters to my site because I've been hit with so many attacks from spambots trying to attack my site. It is a pain in the rear and I know that those who host my site and other bloggers like myself hate the annoying spam. Keep us updated on this issue if you decide to pursue it!

DEATH TO SPAMMERS!

[Claire]

Hell -- they'll probably counter-sue for "attractive nuisance."

...and win. Damages.

Death to Spammers
[I *miss* my trackbacks, too]

[Liberal Larry]

Comment spam isn't all bad. Thanks to a recent spammer, I got Christina Aguilera's phone number off Paris Hilton's hacked cell phone list. She's not picking up, though.

http://paris-hilton-tmoble-list.blogspot.com/">http://paris-hilton-tmoble-list.blogspot.com/">http://paris-hilton-tmoble-list.blogspot.com/

[Len - KC]

Dave,
Well written! The posting of ads on a blog is the equivalent of painting an ad on the side of someone's house. Vandalism? Obviously theft of bandwidth. Short of a class action (now in federal court!), setting up a DOS attack might be in order for a few of the most flagrant violators of common decency.

[Gullyborg]

Thanks for the encouraging words. I haven't heard back from Powerline or Glenn Reynolds. I really hope people like them will get involved.

[Brad]

Assuming that comment spam is committed by the same perps as email spam, the vast majority of them are in the US, and a miniscule amount comes from countries without the rule of law (in this case, Russia and China).

[Timothy Lee]

Well stated.

I wasn't aware of how insidious comment spam was until I started my own blog. It took less than two weeks before ads began to appear.

I'm thinking that I should go back into my archives and turn off coments and pings every two weeks for posts older than 30 days (a month).

What's everyone else doing?