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No easy answers in war on spam
Inside the First Amendment

By Ken Paulson
Executive director, First Amendment Center

The war against spam will have to be fought one battle at a time.

Unwanted junk e-mail is filling electronic mailboxes at record levels, spurring both a public and legislative backlash. As ads for Viagra and sexual enhancements begin to outnumber legitimate messages, many people are turning to government to do something.

In response, both state legislatures and Congress have drafted legislation to stem the tide:

  • Thirty states have passed anti-spam legislation to date, with more on the way. Currently under consideration in Michigan is legislation that would require that spam be labeled as advertising and provide an easy way for recipients to be removed from the mailing list.
  • The U.S. House of Representatives is considering the “Reduction in Distribution of Spam Act,” which provides penalties for the distribution of commercial e-mails with misleading or pornographic content. The bill would also punish those who fail to honor a recipient’s request not to receive additional e-mail.
  • Last month, the “Stop Pornography and Abusive Marketing Act” was introduced in the U.S. Senate. The bill would essentially replicate the national telemarketing “do not call” list, barring the distribution of unwanted e-mail advertising to specified addresses.

Few outside the direct-marketing industry defend spam. For most recipients, it’s a burden and a distraction, and efforts to restrict it are politically popular.

Yet curbing this nuisance is not as easy as it sounds. Those seeking to ban spam face one little hitch:

Spam is speech.

Any communication in the United States – commercial or not – enjoys some level of protection under the First Amendment. Though advertising has somewhat less protection than a daily newspaper, book or television broadcast, courts have consistently ruled that government must demonstrate a compelling interest before it can impose restrictions.

That’s why the most effective legislative efforts target fraudulent e-mail, interference with computer systems or the refusal to respond to requests to remove names from a mailing list. To pass constitutional muster, restrictions on spam have to be based on allegations of real harm, not just irritation.

That was illustrated in a case decided two weeks ago by the California Supreme Court.

A former Intel engineer, fired by the company in 1995, was sued by the company after he sent thousands of e-mails to current Intel employees criticizing the company.

Over a two-year span, Kourosh Kenneth Hamidi sent six batches of e-mails to as many as 35,000 Intel employees. The court found that Hamidi’s e-mails did not disrupt or damage Intel’s e-mail system and that he was willing to remove any individual employee from his mailing list upon request. The e-mails promoted an organization called “Former and Current Employees of Intel” (FACE-INTEL) and raised questions about Intel’s personnel practices.

Intel argued that Hamidi should not be allowed to trespass upon their computer system, but the court rejected the suggestion that sending an e-mail through cyberspace was like stepping on private property.

“He no more invaded Intel’s property than does a protester holding a sign or shouting through a bullhorn outside corporate headquarters, posting a letter through the mail or telephoning to complain of a corporate practice,” Justice Kathryn Werdegar wrote.

The court may well have reached a different decision had Hamidi sent a huge volume of e-mail that paralyzed corporate computers, or if he had continued to flood recipients with messages after individuals specifically asked to be taken off his list. In this case, the court concluded that Intel’s only real complaint was annoyance – and that’s not enough to trigger an injunction.

The battle to control spam will be fought on several fronts: technical, legislative and political. There’s a lot of free speech – including spam – that can be unpleasant and unpalatable. The challenge is to craft solutions that give consumers options, but don’t curb the free flow of information.


State high court: Ex-Intel worker's mass e-mails weren't trespassing

California justices rule 4-3 in favor of fired engineer, overturning injunction that had barred him from e-mailing employees at Santa Clara-based company. 07.01.03

California enacts nation's toughest anti-spam bill
Measure imposes fines of up to $1 million per incident, targets firms that send unsolicited e-mails as well as companies whose products are being advertised. 09.24.03

Senate votes to can spam
But bill supporters warn computer users not to expect any immediate end to unwanted commercial e-mails. 10.23.03

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