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Senate panel takes aim at 'the scourge' of the Internet

By David Hudson
First Amendment Center

A Senate subcommittee held a hearing Wednesday to discuss the problems caused by junk e-mail, or spam, which Chairman Conrad Burns (R.-Mont.) called "the scourge of the Information Age."

The subcommittee heard testimony from a representative of the Federal Trade Commission and representatives of various groups, including America Online, the Coalition Against Unsolicited E-Mail (CAUCE), the Direct Marketing Association and the Center for Democracy and Technology.

The speakers all agreed that government should have some role in regulating spam. However, they disagreed over the extent of regulation. All those who testified discussed whether Congress should enact a total ban on unsolicited commercial e-mail, such as Rep. Christopher Smith's (D-N.J.), H.R. 1748, or to take a more narrowly tailored approach, such as the measure sponsored by subcommittee members Sen. Frank Murkowski (R-Alaska) and Sen. Robert Torricelli (D-N.J.). Last month, the Senate passed the Murkowski-Torricelli measure, which would require online marketers to identify themselves and to stop sending messages to consumers upon request.

Ray Everett-Church, co-founder and counsel for CAUCE, told the subcommittee that a total ban on unsolicited commercial e-mail is necessary in order to free online communications from the clogging effects of spam.

Everett-Church urged the subcommittee members to endorse Smith's bill that would amend the anti-junk fax law to include e-mail. Everett-Church warned that the Murkowski-Torricelli measure would actually harm the fight against spam.

"Although CAUCE endorses the intent behind Senator Murkowski's and Senator Torricelli's amendment to the anti-slamming bill, we are deeply concerned that this proposed law will, if anything, make the burden on businesses and consumers even greater," he said.

According to Everett-Church "as written, the bill [by Murkowski and Torricelli] sets basic standards of legality that are easily met, even by today's current crop of disreputable scammers and brazen porno spammers. The legislation would allow marketers to indiscriminately send massive volumes of e-mail with no recourse for the victim other than begging to be taken off the list. … By setting such a low threshold for legitimacy, we fear it would allow for increasing volumes of junk e-mail."

However, Murkowski stated at the hearing that his anti-spam bill is a good first step in combating junk e-mail and warned that a total ban would infringe on First Amendment freedoms.

Murkowski said: "For some in the Internet community, our solution does not go far enough. They propose an outright ban on unsolicited e-mail. I believe such a ban would establish a dangerous precedent and would erode the protections of the First Amendment. The government simply should not dictate what a consumer sees in his or her mailbox. We been down this road before with the Communications Decency Act. The Supreme Court made very clear what it thinks of such sweeping bans on Internet material. Consumers should have the final word in deciding what comes in their mailboxes, not the government."

Deidre Mulligan, staff counsel for the Center for Democracy and Technology, agreed that the Murkowski-Torricelli measure was "a good first step that will reduce the problems caused by unsolicited commercial e-mail."

Mulligan told the subcommittee that "responding to the problems caused by unsolicited commercial e-mail is not simple. Not only does this very complicated issue touch upon First Amendment and privacy concerns, it also involves regulating a decentralized and global technical infrastructure."

According to Mulligan, Congress should not pass an outright ban on junk e-mail because "although commercial speech may be regulated by the government, such speech still maintains substantial First Amendment protection."

Mulligan said: "There appears to be a growing consensus that spam needs to be regulated. The question now becomes: Do we start with relatively narrow legislation or with a rather draconian approach of banning speech altogether? The Center for Democracy and Technology believes it is silly to start with a sledgehammer approach when a scalpel approach might solve the problem first."

Murkowski and others emphasized the informative nature of the testimony. However, at least one representative of CAUCE questioned the timing of the hearing. John Mozena, who is on the group's board of directors, termed the hearing a "camouflage."

He said: "We are glad the Senate is having a hearing on junk e-mail, but wish it would have been held much earlier. I find it ironic that the Senate is finally having a hearing on spam after the Senate already passed legislation that would regulate, but also in a sense legitimate, spamming. It really goes to show you that if the Senate was truly interested in public input they would have held this hearing some time ago."

Mozena said his organization hopes to "make enough noise at the hearing" that if the Murkowski-Torricelli amendment makes it to a joint House and Senate conference committee, the Senate will discard it.

Although all those who testified have no problem with some level of government regulation of spam, at least one free-speech expert expresses concern with the prospect of further government control. Richard Kaplar, editor of The Commercial Speech Digest, said: "The real question here is not how strongly e-mail should be regulated, but whether it should be regulated at all. Congressmen can't ignore the First Amendment just because commercial e-mail may inconvenience some of their constituents."

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Last system update: Friday, November 14, 2008 | 01:34:49
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