Time to Ban the Spam from Inboxes

co-authored by Allison K. Hift

I received e-mails from my friend Linda and my buddy Joe today. Linda told me about her new get-rich-quick-business and Joe filled me in on the latest fantasy-football-instascore-service. However, I know neither Linda nor Joe.

Online mass marketers disguised their identity to catch my attention and to avoid the delete key. Pending legislation targets e-mail marketing schemes and may soon result in federal regulations concerning the way that marketers can contact you online.

Spam

Yes, you can find Spam in Publix. However, you can also find it in your e-mail inbox. Spam is bulk, unsolicited commercial e-mail ("UCE"), i.e. junk e-mail.

Spam generally means the sending of more than one message about items that you sell to people who didn't ask for the info. Joe and Linda's messages sent to 10,000 of their "friends and buddies" would constitute spam. You're considered a "spammer" if you send e-mail like this and if you receive it, you've been "spammed."

Internet Marketing

E-mail has drastically changed the way we communicate and do business. With e-mail, a user can send messages and transfer documents instantaneously for a minimal cost. This minimal cost generally remains the same whether you're sending the data next door or to New Zealand.

In addition, the cost doesn't increase if the message is "letter" rather than "postcard" weight or if you send the message to several hundred people rather than to one person. Did I just pique the interest of some shrewd mass marketers?

You bet I did.

Direct marketing is a huge expense for most companies. So the thought of a cheap way to target consumers is a marketer's dream. Rather than sending snail mail at $2 a pop to 10,000 potential customers, for a fraction of a penny, a marketer can reach you through e-mail.

Theoretically, this could be an ideal, cost-effective way to build relationships with customers but most people think it's out of control. America Online estimates that one-third of its e-mail traffic is spam. That's between 10 and 24 million pieces of spam per day on AOL's network. That's a lot of traffic for AOL to direct and it amounts to between 5 and 10 pieces of spam in each AOL customer's inbox every day.

Moreover, the numbers are growing. They're growing because the marketers are getting so good at what they do that they've been able to automatically "harvest" e-mail addresses from the Internet and to buy mass e-mail lists. They've also created some nifty software to outfox the Internet service providers that try to stop them.

Stop the Spam

All of us get annoyed with the amount of spam we receive each day and with the telemarketers that only need "a moment" of our time. Still, we've had only marginal success in stopping either one.

One reason for the lack of success in stopping them is the First Amendment. Generally, the government can only regulate commercial speech if there is a substantial governmental interest in doing so the regulation directly address governmental interest and isn't overreaching.

In the early 70s, Americans had had it with junk mail and the government stepped in to regulate the mass mailings. The federal government passed a law that enabled people to stop receiving mass mailing by "opting out" of mailing lists. The mass mailers challenged the constitutionality of the statute. They lost.

The Court held that while the mailers had a right to send the snailmail, addressees didn't have the obligation to receive or to read it. The Court held that "nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit."

However, to Linda and Joe's relief, the courts stopped short of banning junk mail altogether. Courts have held that broader restrictions on junk mail, based on the subject matter of the mail, are unconstitutional. For example, the courts struck down a restriction on all mass mail advertising dealing with contraceptives.

Telephone marketers have also had to defend their practices. When telemarketers starting automating their calls, we started picking up the phone to hear a prerecorded message (always around dinner time).

At least one court to date has upheld certain restrictions on automatic dialers that play prerecorded messages.

Cost Shifting

On the other end of the spectrum, we've had more success stopping junk faxes than either junk e-mail or automated telemarketers. That's probably good news for people who want the government to put a stop to spam.

A federal statute actually protects you from walking into your office on Monday morning to find 347 menus from local restaurants coming through your fax machine. Generally, the law makes it illegal for anyone to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine.

One impetus behind the court's action to stop the junk faxes was the fact that the faxes drastically shifted the cost of advertising to the recipients. Junk faxes caused recipients to buy more paper and ink for the fax machine and subscribe to additional fax lines. The government determined that it had the responsibility to prevent that cost shift.

Spam creates a similar cost shift. Spam causes the costs that the marketers should incur to shift to various entities. Internet service providers are stuck with paying the costs of storage and the delivery of spam and the amount of Internet traffic that all junk e-mail creates slows our ability to navigate on the Internet.

Can the Spam

In response to this cost shift, several states including California, Rhode Island, Virginia, and Washington, have adopted anti-spam legislation. The state legislation comes in several flavors.

For example, California's law creates a specific cause of action for an ISP to sue a spammer if the spammer violates the ISP's e-mail policy. It also imposes criminal penalties upon those who cause computer system disruptions by using a false domain name to send messages.

California also requires unsolicited e-mail ads to include opt-out instructions with a toll-free telephone number or return e-mail address, and requires spammers to honor opt-out requests. Further, advertisers need to label certain e-mail ads.

At the Federal level, legislators have introduced several bills. In past legislative sessions, similar bills have died. It seems as though Congress is probably waiting to see how state legislative initiatives fare before considering the adoption of spam regulation at the Federal level.

For example, in June 1999, Representatives Gary Miller and Rush Holt introduced the Can Spam Act. It proposed to prohibit spam by making it illegal to use an ISP's equipment to send spam and by giving ISPs rights of action to sue spammers for damages.

In October of last year, Representative Heather Wilson introduced the Unsolicited Electronic E-mail Act of 1999. It required commercial e-mail to contain a valid return address and respect recipients' opt-out requests. The bill also charged the Federal Communications Commission with the administration of a national opt-out list.

The legislation granted ISPs the right to prohibit the transmission of unsolicited commercial e-mail to their subscribers without compensation and it created causes of action for instances where spammers didn't honor the policies or opt-out requests of ISPs and private citizens.

Case law has been developing in this area too. Courts generally treat spammers harshly and have ruled that under certain circumstances, their actions violate trademark law, the Computer Fraud and Abuse Act, various state laws, and constitute trespassing.

If I were king, I'd treat spam the way we treat junk faxes. I'd make them illegal. Who needs spam? Who wants spam? NOBODY!