Please note that the article below references primarily U.S.
legislation. To view spam laws from other countries, please visit
spamlaws.com.
Is Spam Ordinary Commercial Speech?
By Stan Morris
In an informal poll hosted by GigaLaw.com, more than half of all
respondents favored a law restricting "spam," that is,
unwanted electronic advertising that everyone with an e-mail address
has been exposed to but does not know how to stop. In the poll,
30 percent favored making false e-mail headers illegal, but only
slightly more than 11 percent said spam restrictions would violate
the First Amendment.
One of the most infamous spamming episodes is known as the "Green
Card Incident." In 1994, lawyers in Arizona who wanted to advertise
their immigration services on the Internet spammed thousands of
discussion groups. When told this was not suitable behavior, they
not only threatened to show others how to do this perfectly legal
technique but also threatened to sue everyone who complained about
it.
The partners in the firm in the Green Card Incident were simply
trying to advertise their services in a very low-cost manner. Advertising
is the most common form of commercial speech, which is any speech
that proposes a transaction. Since most spam is advertising, it
is protected by the First Amendment, although subject to regulation.
Spam as Advertising
U.S. Supreme Court rulings have established that the function of
advertising is to pass information from the seller to the customer.
The 1980 case of Central Hudson Gas & Electric Co. v. Public
Service Commission involved an attempt by the New York State
Public Utilities Commission to stop a regulated monopoly from advertising
rates and services that would have an effect on all consumers, not
just those using the advertised program.
Since providing electric and gas utilities is lawful, the U.S. Supreme
Court found that the First Amendment applied in this case and to
advertising in general as long as no deception is attempted or intended.
However, because the advertiser knows more about the product than
the consumer, the government has an interest in regulating content.
Advertising is one of the few areas in which non-obscene content
may be regulated.
The Supreme Court writing in Central Hudson developed a
four-part test to determine whether the speech may be regulated.
First, the court must decide whether the speech is within the bounds
of the First Amendment. Second, for commercial speech to be protected,
it must be lawful and not misleading. Third, the government interest
in regulation must be substantial. Finally, regulations must be
written in great detail in order to regulate only what the government
has a legitimate interest in regulating.
In 1996, the Supreme Court refined the rules laid out in Central
Hudson in a case known as 44 Liquormart v. Rhode Island.
In that case, the state of Rhode Island prohibited all advertising
of prices by liquor stores. The stated reason was to promote temperance
in alcohol consumption. The case was heard on the basis of a challenge
to the ban on price advertising. The court ruled that when a state
entirely prohibits publication of truthful, non-misleading commercial
messages for reasons unrelated to preservation of the fair bargaining
process, a judge may look to a wider application of the First Amendment
than simple regulation of commercial speech.
Proposed Anti-Spam Legislation
Legislation was introduced in Congress under the Unsolicited Commercial
Electronic Mail Act of 2000 (the Anti-Spam Act). In the "findings"
section of this act, Congress noted that bulk e-mail imposes costs
on the recipients in the form of time spent accessing, reviewing
and discarding such mail, and also may impose significant monetary
cost on Internet access services because there is a finite volume
of mail such providers can handle without further investment.
Consequently, the Anti-Spam Act takes the position that internet
service providers (ISPs) should not be compelled to bear the cost
of unsolicited commercial e-mail without compensation from the sender,
and recipients of unsolicited e-mail have a right to decline to
receive such mail.
One of the most important provisions of the Anti-Spam Act is that
it requires an initiator to provide a valid return address as well
as accurate routing information, something many spammers have failed
or refused to do. The theory behind these provisions is that making
spammers accessible will deter them from using this method of advertising.
The act also includes opt-out provisions for individuals. If passed
in its present form, this federal legislation will tame some of
the more extravagant excesses of spamming.
In addition to this federal legislation, many states are attempting
to write anti-spam laws. The courts in California and Washington
have ruled their laws to be unconstitutional as contrary to the
First Amendment because one state cannot regulate conduct in another.
However, state legislation in concert with effective federal legislation
may have some effect. For example, advertisers within Colorado already
must label their messages as advertising by placing the letters
"ADV" in the subject line, thus making the messages easy
to delete.
Courts Have the Final Say
Just as the U.S. Supreme Court ruled that the government cannot
preclude all advertising, it did rule in Central Hudson
and in 44 Liquormart that methods of advertising are subject
to regulation.
Without further action, spam is here to stay just as are the advertising
flyers that burden mailboxes and clog landfills.
Because the methods of transmission are so intrusive and because
spammers use private resources without permission, First Amendment
considerations may be outweighed by the fact that spammers have
shifted the cost of advertising to the recipient and to the ISPs.
Just as the bulk fax statute has significantly slowed the transmission
of that form of advertising, so may the drafters of the Anti-Spam
Act find that the congestion of such privately owned resources as
home computers and equipment belonging to ISPs is sufficient cause
to regulate spam almost out of existence.
In the end, the courts will have the final say, but they also may
support such a statute as not unduly burdening the First Amendment
as long as the law regulates the means of transmission and not the
content itself.
Addendum (An Update from the Author)
When “Is Spam Ordinary Commercial Speech?” was written
in 2000, spam amounted to a minor annoyance. I argued for an opt-out
system in various correspondence that was generated by that limited
amount of unwanted e-mail. I now have an anti-spam filter at my
ISP and installed in my e-mail program as well as some additional
software. Yet, spam still gets through. Businesses must learn to
deal with it.
The European Union has adopted an opt-in law for member states,
but 53 percent of all European e-mail is spam. In the United States,
the figure rises to 60 percent according to the 23 February 2004
edition of the The Denver Post. One spammer from Michigan
quoted in that Denver Post article sends out 70 million
e-mails per day. If he makes a dollar off one-hundredth of a percent
of those e-mails, it’s not a bad haul for one day.
I pointed out that Congress was looking for a way to legislate
against spam in the near future. In the 108th Congress, they have
come up with the Controlling the Assault of Non-Solicited Pornography
and Marketing Act of 2003 or the CAN-Spam Act, which went into effect
in January 2004. The act calls for labeling unsolicited e-mails
as advertising, an honest opt-out provision and an honest address.
With the ease of using false addresses, or “spoofing,”
the use of the opt-out provisions simply as confirmations of the
recipient’s address and the overseas location of spammers,
enforcement is difficult. States have tried various solutions with
only limited results. Several anti-spam statutes have been ruled
unconstitutional as they tried to regulate out-of-state conduct
under what is known as the “dormant commerce clause.”
Other statutes, such as Colorado’s, are ineffective because
they require an in-state spammer to place “ADV” in front
of any subject line.
The solution to spam will be technological. But one rationale for
the legal problems arising from spam will be the argument that it
is free speech. Speech has other qualities than solely being communicative.
The manner of speech may be regulated, as was the case in Ward
v. Rock Against Racism, 491 U.S. 781 (1989). In that case,
the band playing in New York’s Central Park insisted on using
all of their own equipment. The neighbors complained. The city's
Parks Department insisted on regulating the volume. The decision
made by the U.S. Supreme Court, reversing the U.S. Court of Appeals
for the 2nd Circuit, ruled that the volume restriction was reasonable
and not intrusive into the otherwise protected speech—so the
same might be true of a curb on volumes of unsolicited e-mails.
Resources
1. Basic information: http://www.uni.edu/its/us/faqs/email/email18.htm
2. More detailed information: http://www.unknowngeek.com/archives/001230.php
3. Link to business: http://secinf.net/anti_spam/Combating_SPAM_Problems_in_a_Corporate_Environment.html
4. Issues related to the EU: http://money.cnn.com/2004/02/04/commentary/wastler/wastler/
5. Is the cure worse than the spam?:
http://www.mailutilities.com/news/archive/145/2186.html
6. Federal statute commentary: http://practice.findlaw.com/cyberlaw-0104.html
7. The CAN-SPAM Act: http://www.spamlaws.com/federal/108s877.html
8. Summary of state laws: http://www.spamlaws.com/state
9. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=491&page=781
Stan Morris is a practicing attorney in Cortez, Colorado. He also
teaches business law in the MBA program at the University of Phoenix
Online. He can be reached at smmorris@rmi.net.
This article (excluding the update) originally appeared on
Gigalaw.com. It can be found at http://www.gigalaw.com/articles/2000-all/morris-2000-12-all.html.
The author retains copyright of the addendum.
Discuss this topic with other IABC members at: www.iabc.com/memberspeak.
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