On any given day, with a single click of your mouse, you can get better car insurance, enhance your anatomical features, win a trip to the Caribbean, and the list goes on. It’s not that you’ve run an internet search on these topics, but instead that these materials have made their way, uninvited and sometimes even disguised as regular e-mail, into your inbox. Despite all of the filters and blocks in your settings, spam gets through. With any luck, not for much longer.
The President recently signed into law Senate bill 877, commonly referred to as the CAN-SPAM Act of 2003. This first piece of federal anti-spam legislation took effect on January 1, 2004. Both houses of Congress recently floated around many versions of potential anti-spam legislation (at least 9 bills in this session alone), but the CAN-SPAM Act emerged as the leader of the pack. Introduced in the Senate on April 10, 2003, the bill passed by a vote of 97-0 on October 22, 2003. On the heels of this unanimous backing, the House and Senate batted the bill back and forth until the two houses finally agreed on the version of the bill that should reach the President’s desk. Both houses felt great pressure to generate results quickly, as Presidential approval of whatever piece of anti-spam legislation ultimately reached his desk was all but certain.
Now in effect, the CAN-SPAM Act allows the federal government, state attorneys general, and Internet Service Providers to prosecute spammers who engage in any of a number of spamming techniques that, under the Act, are now illegal. The two most prominent features of the new law are that senders of commercial e-mails must now label the e-mails as such, and that recipients of commercial e-mails specifically have the opportunity to "opt-out" of receiving further communications from the sender. Individuals do not, however, have standing to bring lawsuits under the Act.
Whether and how the Act will work in practice is a topic of great debate, even among sponsors of the Bill. For example, some have questioned how quickly Internet users will see results. Internet users will probably not see a decrease in spam until spammers are caught and prosecuted. In addition, just how many spammers need to be caught and prosecuted before other spammers get the message and stop spamming is anybody’s guess. Effectiveness of the Act also assumes the securing of convictions against those prosecuted under the Act. Spammers prosecuted under the proposed federal law will likely raise 1st Amendment concerns, resulting in potentially lengthy and complex trials. Nevertheless, such challenges are likely to fail for the reasons that follow.
Commercial speech has historically received less protection under the 1st Amendment than private speech. Often citing protection of the consuming public, the government has been able to successfully assert compelling interests strong enough to trump businesses’ claims of 1st Amendment protection. This is especially true where the courts are able to find that the asked-for restriction can properly be classified as one of time, place, and manner. That is, the business in question is not prevented from making their communication or sending their message, but instead is simply limited in the manner and method by which such message is conveyed. Here, businesses are not prevented from offering car insurance, enhancements to anatomical features, or vacation packages; they are simply being told that they must be truthful, and not deceptive or misleading, when making such offers. This groups the current anti-spam legislation with other "truth-in" initiatives like "truth in advertising" and "truth in lending," initiatives that protect the consumer and further the governmental interest in maintaining an informed and knowledgeable consuming public.
Anti-spam legislation, at its most extreme (which is not the CAN-SPAM Act) has suggested creation of a "Do-Not E-Mail Registry," similar to the nationwide "Do-Not Call Registry." It is this type of potentially overbroad action that may not be able to withstand 1st Amendment challenges. Yet even such far-reaching proposals could, with limiting factors such as exempted organizations, overcome challenges, especially if looked at in the context of individuals being able to exert control over their own personal property. If a person is allowed to post a sign prohibiting vendors from soliciting on their private property, i.e. private home, apartment building, or restaurant, then it is not a far stretch of the imagination or of logic to allow that same person to block those same vendors from invading his phone line or e-mail account.
It is also worth mentioning that some states, especially California, which had very strict anti-spam legislation of its own in place, have long voiced concerns about the passage of a federal anti-spam law. Not only does the federal law preempt the individual state statutes, but it is also weaker than many of those state statutes. States like California argued that if states can regulate spam on their own, then there is no need for federal legislation. The federal government, on the other hand, argued that because the Internet poses significant jurisdictional issues, the only way to achieve uniform regulations and penalties and ensure the applicability of these regulations and penalties to the spammer was to enact federal legislation.
The Internet presents many questions for those who want to file suit for Internet-based offenses. For example, does the offense take place where the sender is located, or where the recipient is located? Moreover, where are each of those people actually located, i.e. where they live, where they send/receive the e-mail, where the ISP used is located? The existence of federal law allows lawyers and judges to disregard determinations such as which state law applies to the facts of the particular case. Instead, all spammers are subject to the same regulations and penalties, and all plaintiffs have the same remedies available to them.
With the passage of the CAN-SPAM Act of 2003, the federal government broke ground in efforts to regulate commercial e-mails, and challenges are likely to begin arising shortly. Only time will tell whether or not the legislation will be successful, but the first step is always the most important, and this infant legislation seems ready for that first step.
Sources and Related Sites:
Antispam Bill Passes Senate by Voice Vote
http://www.nytimes.com/2003/11/26/technology/26spam.html
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Senate Anti-Spam Bill Introduced
http://www.internetnews.com/IAR/article.php/2184741
The Impact of State Anti-Spam Laws
http://www.gigalaw.com/articles/2002-all/wood-2002-03-all.html
Private Property, Free Speech and Spam
http://www.templetons.com/brad/spam/private.html
Chalking the 1st Amendment
http://www.60-seconds.com/articles/155.html
The First Amendment, Junk Faxes and Spam
http://www.gigalaw.com/articles/2002-all/ramasastry-2002-05-all.html
Advertising Is Protected by the First Amendment
http://www.lawpublish.com/amend1.html
Another Hang-Up for 'Do Not Call'
http://www.latimes.com/business/la-fi-donotcall26sep26001450,0,258652.story?coll=la-headlines-business
'Do not call' list unplugged
http://money.cnn.com/2003/09/24/technology/ftc_donotcall/
