As of this writing, the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) has been in effect for nearly two-and-a-half months after going into effect on Jan. 1. Has it been effective in combating the rising tide of spam? Overall, the answer is no.

MXLogic found that in February, only 3% of spam messages complied with the law’s requirements. Brightmail reports that the percentage of e-mail passing through its network was 62% spam in February, up from 58% in December. The number of spam messages processed by Postini has continued to increase since the passage of the Act. (However, the percentage of spam passing through FrontBridge Technologies’ network dropped slightly in January and again in February.)

On balance, the CAN-SPAM Act has been largely ineffective at stemming the flow of spam - as many predicted, including me. To be fair, the Act has been in effect for only a relatively short period, and so its ultimate effectiveness will not be known for many more months. That said, I continue to predict that the law will do very little to stop spam despite the best intentions of its enactors or enforcers.

Here’s why:

* Imposing criminal and civil penalties on behavior, the model adopted by the CAN-SPAM Act, is often ineffective at stopping that behavior. For example, despite increasingly harsh penalties against drug dealers and users, the number of Americans that had used an illegal drug increased more than 1,800% between 1962 and 1998, notwithstanding some decrease in drug use during the 1980s when penalties were made much more severe.

* Imposing non-criminal, economic penalties on behavior - the affect that anti-spam technology solutions have on spam - is often much more effective at stopping that behavior. For example, while drug use has risen, the percentage of Americans who smoke fell from about 42% to 24% largely because of increases in the price of cigarettes, much of which is attributable to increases in tobacco taxes.

As I’ve mentioned in this newsletter and elsewhere before, the second model is the one that will by far have the greatest impact on spamming. By increasing the cost of spamming through the widespread adoption of spam-blocking systems, many spammers will simply get out of the business.

Michael Osterman is principal analyst of Osterman Research.