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Constitutionality
Running Head : Constitutionality
Ban Spam? : Exploring the Legal Issues and Constitutionality
of Federal and State Statutes and Bills Regulating Junk Email
By
Hwi-Man, Chung
Ph.D Student
School of Journalism and Mass Communication
University of North Carolina at Chapel Hill
Contact : Hwi-Man Chung
700 Bolinwood Dr. APT # 12-B
Chapel Hill, NC 27514
email : [log in to unmask]
phone : 919-969-1507
Submitted to the Law Division
Association for Education in Journalism and Mass Communications
in New Orleans, LA : August 4-7, 1999
Running Head : Constitutionality
Ban Spam? : Exploring the Legal Issues and Constitutionality
of Federal and State Statutes and Bills Regulating Junk Email
Abstract
The purpose of this study is to examine legal issues and the
constitutionality of both federal and state bills and statutes regulating
unsolicited commercial electronic mail via the Internet. This paper suggests
that in general federal and state bills and statutes can pass the Central Hudson
test if they aim to prevent the 'cost-shifting' from advertisers to consumers,
and this paper shows that Destination Venture case can be a strong precedent for
the constitutionality of those bills and statutes. However, this paper also
suggests that the privacy protection will not pass the Central Hudson test
because the Supreme Court had different rulings about privacy protection.
Furthermore, this paper also suggests that the Supreme Court's approach to the
new medium - Internet - should be considered to assess the constitutionality of
regulations of unsolicited commercial email because the Supreme Court has said
that the Internet has highest protection from government regulation. So, this
paper also showed that the blanket ban over unsolicited commercial email via the
Internet might be unconstitutional if the Supreme Court uses the same approach
to commercial speech in the Internet.
Introduction
Since its inception, the Internet has undergone tremendous
changes. The
Internet has become a viable means of communication for people all over the
world.
Because the Internet is a quick and efficient tool to reach millions of people
at the same
time, marketers and advertisers try to use the Internet as an efficient tool for
advertising
and marketing. According to NUA, one of Europe's leading online consultants and
developers, the number of Internet users worldwide is estimated to be 100.5
million and
by the end of the year 2000, the number will jump to 200 million.[1]1 Business
Week's
1997 survey shows that current U.S. Internet users are 40 million.[2]2 And it
will be
expected to be 75 million by the end of year 1998.[3]3
One of the forms of advertising which advertisers use through the
Internet is
"e-mail advertising". Currently anyone with an Internet e-mail account is
familiar with
this type of advertising, but there is still fierce on-line debate over e-mail
advertising,
especially about unsolicited e-mail advertising, because it often is not wanted
by Internet
users and it usually is posted to multiple news groups or mailing lists. It is
called
'spam'.[4]4 Typically, the term "spam" is used to denote bulk e-mail
advertisements.
Spam opponents complain junk messages have overwhelmed many Usenet
newsgroups despite the cancelbot[5]5 software and human despammers. Spammers
defend
the free market system, saying that commercial speech is protected by the First
Amendment. They argue that their messages are wanted by many persons and that
they
are entitled to disseminate advertising messages by the cheapest means.[6]6
A recent survey undertaken by Equifax and Harris Associates,
however,
showed that over two-thirds of Internet consumers considered the spam problem as
one of the most important problems to be solved in cyberspace and that they also
thought
junk emails should be regulated in certain way.[7]7
On May 12, 1998, a bill known as the Murkowski Amendment[8]8 was
unanimously passed by the U.S. Senate. It was first federal regulation of junk
email
passed in the Senate. Its main purpose is to prevent slamming[9]9 - the
practice in which
telephone companies switch users to their long-distance service without the
users'
authorization. This bill, however, includes the regulations of unsolicited
electronic
mail.[10]10 A slightly different version of the anti-slamming bill[11]11 has
been introduced in the
House, and it is expected to be passed the House by the end of this year. Also,
there are
several other bills in the Senate and House that aim to regulate electronic
commercial
advertising.[12]12 Many states also are trying to regulate unsolicited
electronic commercial
advertising through the Internet with state statutes.[13]13 These statutes and
proposed statutes
have something in common. First, they set requirements commercial emailers have
to
follow. Second, their requirements are basically same - a requirement of
identification, a
requirement for an opt-out service, and fines for electronic commercial
advertisers who
do not follow these requirements.
There are two different opinions about the statutes regulating
unsolicited
electronic mail. One is the opinion from the proponents of spam, and another is
from
spam opponents.[14]14 Spam opponents argue that almost all proposed federal
regulations
give unsolicited commercial email legal authorization and thereby make the junk
email
problem worse. If the spammers meet the requirements of the bills -- authentic
contact information, physical address, email address, telephone number, and
opt-out
instructions -- the spammers can send junk email without any restrictions.
Spam proponents argue that these bills restrict the free market
system and are
contrary to the Supreme Court's view of free expression rights in the Internet
as a
medium.[15]15
The U.S. Supreme Court has established different rules for
print,[16]16 broadcast
radio and television,[17]17 and cable television.[18]18 In its decision about
Internet issues, the
Supreme Court gave more protection for speech on the Internet than on the
broadcast
media.[19]19 The Supreme Court, however, has not focused on commercial speech
on the
Internet.
The purpose of this study is to examine the constitutionality of
federal and
state bills and statutes that regulate sending unsolicited electronic commercial
mail
through the Internet.
Background
Because this paper seeks to assess the constitutionality of
federal and state
statutes regulating unsolicited commercial electronic mail through the Internet,
a brief discussion of the Internet advertising will provide the background
necessary
for analysis.
Types of Internet Advertising
The history of online advertising spans a very short period of
time that began
with the commercial online service 'Prodigy'. 'Prodigy' first tested online
advertising in
1990.[20]20 As Prodigy was testing advertising within its subscribe-only
environment, others
were exploring the commercial implications of Internet applications. One of
them was
the law firm of Canter and Siegel. In 1994, Canter and Siegel discovered the
silver bullet
for tapping the Internet as a cheap marketing medium and posted an advertisement
for
green card assistance to over 7000 newsgroups. Although Canter and Siegel
received
requests for green card assistance as a result of its ad, their ads prompted a
host of
imitators and led to an outraged discussion of junk email, named 'spam',[21]21
in the online
community.[22]22 Internet etiquette, known as netiquette,[23]23 dictates that
discussion forums
not be used to post commercial materials that have nothing to do wth the subject
of the
discussion group. Just before spam wars occurred by Canter and Siegel, 'Wired'
magazine launched 'Hotwired' Internet site with an advertising business
model.[24]24
'Hotwired' signed its first ad contact with AT&T on April 15, 1994, and this
site
launched on October 27, 1994. These were the first commercial banner ads in the
Internet. And Canter and Siegel's spam was the first commercial electronic
mail in the
Internet.
There are many different types of Internet advertising according
to external
types of ads. It can be a 'web site'[25]25 in the 'world wide web',[26]26 an
e-mail via the Internet,
or a message posted on a Usenet-news group site.[27]27 However, there are only
two
distinguishable types of Internet advertisements according to the way of access.
One is
passive advertising, another one is intrusive advertising. The common form of
Internet
advertising is passive advertising, which the user voluntarily accesses to the
advertising,
for example web site. Usually the intrusive Internet advertising is unsolicited
commercial e-mail which the user receives from sender.[28]28
Literature Review
Legal scholars started exploring spam as a legal issue after the
Cyber Promotion
v. AOL case.[29]29 Several articles explore the legal issues surrounding
Internet and spam.[30]30
These articles are focused on the Supreme Courts' approach to the
Internet,[31]31 the
inefficacy of existing law to regulate spam,[32]32 and new legal approaches to
regulating
spam.[33]33
Most of the articles reviewed the issue of First Amendment
protection for
commercial speech and suggested a rationale for regulating unsolicited
commercial
electronic mail. For example, Anne W. Branscomb argued in the Yale Law Journal
that
junk email unlike junk mail requires the recipient to download the message. She
explained that cost-shifting happens when a message is downloaded because it
takes time
to download the messages from the email depostory.[34]34 Branscomb argued that
"prohibiting sending email advertisements into newsgroups was reasonable,
because such
inundation is disruptive, intrusive, and surely an invasion of the sanctity that
the Supreme
Court purportedly protected in Rowan v. U.S. Post Office".[35]35 Rowan was a
challenge to a
federal statute that prohibits vendors from mailing erotically arousing or
sexually
provocative materials to addressees who have asked not to be sent such
materials.[36]36
In Rowan v. U.S. Post Office Department, the Supreme Court ruled that a mailer's
right to
communicate stopped at the mailbox of an addressee, and every person has
autonomy to
permit and to exercise control over unwanted mail.[37]37 Branscomb concluded
that
prohibiting the delivery of commercial messages to email destinations would be
consistent with the First Amendment's goal of encouraging a diversity of
information
sources without intruding upon the sanctity of personal email.[38]38 She also
argued that the
Telephone Consumer Protection Act of 1991[39]39 could be a legal frame work for
regulating
junk email.
Branscomb's article was not focused on junk email issue, main
purpose of her
article was to explore the First Amendment issues surrounding cyberspace. One
of the
most recent articles that discussed directly about First Amendment and other
legal
issues relating to spam is Joshua A. Marcus' article[40]40 published in Cardozo
Arts &
Entertainment. Reviewing cases relating to the First Amendment and commercial
speech, he argued that the regulation of spam could be constitutional and
proposed a
legal frame work for it.[41]41 He argued that the spam could be regulated to
prevent
cost-shifting from advertisers to consumers. Using the four-part test of
Central
Hudson, he argued that some other purpose like aesthetics or privacy could not
pass the
four-part test.[42]42 He said if the governments' interest is aethethic, the
regulation could not
meet the second prong, that is whether the governmental interest of regulating
commercial speech is substantial or not, of the four-part test because all of
previous cases
whose aims were to promote aesthetics deal with the problems of billboards or
signs, and
arguments in previous cases could not be analogized to the Internet.[43]43
Even though we
agree that the purpose of protecting aethethic pass the second prong, he argued,
it can not
pass the third prong, because the government can not prove in a material way
that the
regulation directly advances its interest.[44]44
On the contrary, Jonathan Byne in his article "Squeezing Spam Off
the Net"
argued that the bills currently pending in Congress that propose to regulate
unsolicited
commercial electronic mail because of cost-shifting might not pass the fourth-
prong of Central Hudson, that is the regulation must be least restrictive
alternative.[45]45
He argued that even though a few argue that prohibiting spam would advance the
interest
of preventing cost-shifting, whether the federal bill is tailored narrowly
enough is not
certain. There are various computer programs that can be used to filter the
unsolicited
commercial electronic mail either by the end user or the ISP (Internet Service
Provider),
and the existence of these filters would seem to suggest that the federal
statutes could not
pass the fourth-prong of Central Hudson.[46]46
Unlike these two articles, David E. Sorkin's article[47]47 in the
Buffalo Law Review
proposed that the Telephone Consumer Protection Act of 1991 could be construed
to
prohibit unsolicited commercial electronic mail. Comparing the unsolicited
commercial
email advertising to unsolicited fax advertising, he argued that because both
fax and
email advertising share many of the same characteristics -- cost shifting,
inconvenience --
and because the primary basis for the prohibition of unsolicited fax advertising
was the
cost shifting, the Telephone Consumer Protection Act of 1991 could be used to
applied to
regulate unsolicited commercial electronic mail.[48]48
Though there are several articles exploring the legal issues
surrounding the
Internet and a couple of articles exploring the legal issues about spam, these
articles did
not specifically discuss the state statutes regulating unsolicited commercial
electronic
mail. Instead, those articles either examined Internet regulation in general or
proposed
a legal frame work for regulating spam.
In sum, even though some articles relevant to this study discussed
legal
issues regarding spam and the Internet and analyzed federal statutes forbidding
unsolicited commercial electronic mail, they did not offer a detailed analysis
of federal
and state statutes and bills regulating unsolicited commercial electronic mail.
This study
will analyze the all the federal and state statutes and bills regulating
unsolicited
commercial email and explore the constitutionality of those statutes and bills.
Research Questions
This paper will address the following questions :
1. What are the differences and similarities among the federal and state
statutes and bills
regulating or proposing to regulate unsolicited commercial email?
What are the legal issues raised by the state and federal bills and statutes?
2. Can those statutes and bills pass the four-part test of Central Hudson?
3. What other issues should be considered to test the constitutionality of
state and federal
statutes and bills regulating unsolicited commercial message through the
Internet?
Analysis of Federal and State Statutes and Bills
The rationales for regulating unsolicited commercial email are to
prevent cost-
shifting from advertisers to consumers, to stop inconvenience, and to protect
privacy.[49]49
First cost-shifting. Actually the cost of receiving email through the Internet
depends on
the recipient's way of accessing the Internet. Most users with dial-up
connections pay
either an hourly rate or monthly rate. The recipients who pay an hourly rate
will be more
sensitive to cost-shifting concerns than the recipients who pay a flat monthly
rate. The
users need more extra time to download the email messages from the hosts if they
have
many junk emails, and this means the users who pay an hourly rate will pay more
if they
have more messages to be downloaded from the hosts. The cost-shifting concerns
are
well presented in Representative Smith's (Democrat - New Jersey) introductory
statement :
The Internet and email are becoming part of our everyday
lives. And no
one--from the consumer to the small business who run
servers--should be
forced to pay for unsolicited advertisements. The idea of
shifting the
financial burden of speech on to an unwilling audience is one
that needs to
be addressed. From the netizen who may incur costs in the
form of charges
spent online reading and disposing of the messages to users
who assume the
costs of both accessing and storing mail they did not want,
consumers
should not be unwilling, and paying, recipients.
Furthermore, junk emailers
occupy time and space on an Internet Service Provider's
servers and forces
the ISP to make technical improvements. The cost of these
improvements
are passed on to the consumer. In effect, the consumer is
paying to have
their privacy breached and invaded.[50]50
Second, inconvenience. Junk email can be inconvenient for
recipients, if the
sender uses a vague or misleading messages to conceal the nature of the
messages.
In this case, the recipient is forced to examine the text of the message to
figure out if it is
advertising, and as the result it takes more time to figure out than clear
advertising
messages. Anti-spammers argue that the time for evaluating the junk message
should be
included in the cost. Because the junk emails usually look like a ordinary
message, and it
takes more time to figure out if it is advertising message or not. Therefore,
the users have
to pay more than they usually pay if the message is clear.
Third, privacy concerns. The Electronic Mailbox Protection
Act[51]51 says
that "because of recipients of unsolicited electronic mail are unable to avoid
the receipt of
such mail through reasonable means, such mail may threaten the privacy of
recipients.
This privacy threat is enhanced for recipients whose electronic mail software or
server
alerts them to new mail as it arrives, as unsolicited electronic mail thereby
disrupts the
normal operation of the recipient's computer." This privacy concerns more
likely happen
in a transaction through the Internet than usually in receiving the junk emails
from
advertisers. Anti-spammers, however, argue that their email addresses are
personal
information and email addresses should be protected as personal privacy.
Federal Statutes and Bills
So far, there were seven federal bills that aim to regulate
unsolicited commercial
email via the Internet. One of them was enacted in 1998.[52]52 First, the
bill which was
sponsored by Senator Frank H. Murkowski (Republic - Alaska) was introduced on
May
21, 1997.[53]53 This bill, the 'Unsolicited Commercial Electronic Mail Choice
Act'[54]54 aimed
to regulate the transmission of unsolicited commercial electronic mail. This
bill does not
prohibit the unsolicited commercial email, instead require the emailers to
follow
requirements :
a person who transmits an electronic mail message as part of
the
transmission of unsolicited commercial electronic mail should
include the
term 'advertisement', name, physical address, electronic mail
address, and
telephone number of the person who initiates transmission of
the message.[55]55
It also requires the FCC to seek injunctions and fines up to $ 11,000 against
commercial
emailers who disregard law.[56]56 And part of this bill was accepted in
'Anti-Slamming
Amendments Act'[57]57 which was also introduced by Senator Murkowski and was
passed in
Senate on May 12, 1998.
Also in 1997, the Netizens Protection Act[58]58 was introduced by
Representative
Christopher H. Smith (Democratic - New Jersey). This bill would amend the
Communications Act of 1934 to ban unsolicited commercial electronic mail. This
bill
makes it unlawful for any person within the United States to use any computer or
the
electronic mail address of an individual with whom the sender lacks a
pre-existing and
ongoing business or personal relationship unless such individual provides
express
invitation or permission.[59]59
Thus, this bill prohibits an unsolicited commercial email. Because no one can
send
the commercial email unless there is an personal relationship.
Soon after the Netizens Protection Act, the Electronic Mailbox
Protect Act
was introduced in Congress by Senator Robert Torricelli (Democratic - New
Jersey).[60]60
Its main purpose is to promote online commerce and communications, and to
protect
consumers and service providers from the misuse of computer facilities by junk
emailers.[61]61 It would not prohibit the unsolicited electronic mail, but
rather purported to
promote online commerce.[62]62 In this bill, whoever ...
1) initiates the transmission of an unsolicited electronic
mail message from
an unregistered or fictitious Internet domain
2) uses a computer program or other technical mechanism or
procedure to
disguise the source of unsolicited electronic mail
messages for the
purpose of preventing recipients
3) initiates the transmission of an unsolicited electronic
mail message and
fails to comply with the request of the recipient of the
message to cease
sending messages in the future
4) distributes a collection or list of electronic mail
addresses, having been
given prior notice that one or more of the recipients
identified by such
address does not wish to receive unsolicited electronic
mail[63]63
shall be subject to a civil penalty of $5,000 per individual violation.[64]64
This bill unlike the
'Netizens Protection Act' which prohibit all spam, would regulate only certain
spamming
activities.[65]65
The bill Data Privacy Act[66]66 was introduced by Representative
William Tauzin
(Republican - Louisiana) on July, 1997. Data Privacy Act aims to provide
self-regulation
for a computer interactive services industry and to protect the privacy of
interactive
computer service users.[67]67 It requires an emailer to reveal his trade name,
physical
address, email address, and phone number,[68]68 and it also requires commercial
emailers to
offer opt-out options for recipients.[69]69 Actually, this bill focuses on
protecting privacy
concerns which might be happened when people use the interactive computer
services.
Email User Protection Act and Digital Jamming Act were introduced
in 1998.
Email User Protection Act was introduced to amend the Communications Act of 1934
in
order to prohibit any person from intentionally sending the transmission of
unsolicited
commercial email from an unregistered or fictitious Internet domain, from
directing an
unsolicited commercial email message to subscribers of an interactive computer
service,
and from accessing the server of a service and using a computer program to
collect email
addresses of service subscribers.[70]70
The Digital Jamming Act[71]71 was also introduced to amend the
Communications
Act of 1934 to protect consumers against 'spamming', 'slamming', and 'cramming'.
This
bill makes it unlawful for any person to initiate spam messages, unless a
message
contains specified information - the name, street address, email address, and
telephone
number, unless a message contains Internet routing information that is accurate,
valid,
and correctly reflects the actual message routing.[72]72
State Statutes and Bills
Currently 16 states - Alaska, California, Colorado, Connecticut,
Kentucky,
Maryland, Massachusetts, Nevada, New Hampshire, New Jersey, New York, North
Carolina, Rhode Island, Virginia, Washington, and Wisconsin - have statutes and
bills
which was enacted already or pending in state congress.[73]73 Out of 16 states,
five states -
Colorado, Maryland, Nevada, Virginia, and Washington - have enacted their own
statutes
for regulating unsolicited commercial message through the Internet.
Alaska : A bill requires commercial emailers to clearly identify that the
message
advertisement, to identify their business name and email address, and to include
opt-out
instructions.[74]74
California : The Internet Consumer Protection Act,[75]75 which was enacted in
August in
1998, prohibits sending an unsolicited advertisement to an electronic mail
address unless
commercial emailer has a preexisting and ongoing business or personal
relationship with
the recipient, and even if emailers can send the electronic advertisement,
emailers should
clearly provide, at the beginning of the unsolicited advertisement, the date and
time the
message was sent, the identity of the person sending the message, and the return
email
address.
Connecticut : A state bill clearly prohibits any unsolicited advertisement by
electronic
mail unless the recipient concede to receive that advertisement.[76]76
Kentucky : A bill requires emailers to identify their legal name, street
address,
email address, phone number, and to include opt-out instructions.[77]77
Maryland : The statute prohibits a person from intentionally using an electronic
mail device for the purpose of commercial solicitation.[78]78
Massachusetts : A bill introduced to amend 'General Law' would prohibit a person
from
sending or causing to be sent unsolicited electronic mail to solicit the
purchase of real
property, goods, or services.[79]79
Nevada : A bill was introduced to make it a crime to send unsolicited commercial
email absent a preexisting business relationships, however, it was enacted to
permit
unsolicited commercial email if it includes the sender's name, address, email
address,
and opt-out instructions.[80]80
New Hampshire : Unsolicited commercial electronic mail is prohibited unless the
recipient wishes to receive unsolicited commercial electronic mail.[81]81
Especially, New Hampshire State bill defines the unsolicited commercial
electronic mail
very broadly including any material requesting donations as commercial
electronic
mail.[82]82
New Jersey : State statute prohibits sending an unsolicited electronic mail
unless the
recipient has consented to receive or unless the person sending a commercial
message has
preexisting and ongoing business relationship with the recipient.[83]83
New York[84]84 and North Carolina[85]85 regulate the unsolicited email
advertisements through
requiring emailers to provide legal name, street address, email address, phone
number,
and opt-out instructions. But both states do not prohibit unsolicited email
advertisements.
Rhode Island : A bill was introduced to prohibit unsolicited electronic
advertising which
electronically transmits information in any form through connection with a
telephone or
computer network.[86]86
Virginia : A bill requires the ISP(Internet Service Provider) to determine the
types or
categories of unsolicited electronic mail or messages that subscribers do not
wish to
receive.[87]87 So, in Virginia the providers should be responsible for
unsolicited electronic
mail. And this bill was enacted in late February, 1999.
Wisconsin : A bill prohibits a person from making an electronic mail
solicitation without
the consent of the person solicited.[88]88
Comparison between federal and state statutes and bills
Definition of unsolicited electronic mail advertisement
Usually federal and state statutes define unsolicited electronic
mail advertising
as "any electronic mail message that advertise/solicit the purchase or rental
of, or
investment in, property, goods or services."[89]89 E-Mail User Protection Act
uses a
broader definition than other statutes, that is, "unsolicited commercial email
message
means any electronic mail other than - a) electronic mail sent by persons to
recipients
with whom they have a direct or indirect relationship, including a prior
business
relationship, or b) mail sent by a source to a recipient where such recipient,
or someone
authorized by him, has at any time affirmatively requested communications from
that
source."[90]90 Some states define more broadly than federal bills and statute.
New Hampshire's[91]91 bill defines the unsolicited commercial electronic mail
more broadly
than any other state statutes and bills by including donation requests into
commercial
solicitation.
Neither federal nor state statutes and bills clearly stated how
many recipients
unsolicited electronic commercial electronic mail must have in it to be junk
email. Only
Electronic Mailbox Protection Act[92]92 defines unsolicited commercial email
that is sent to
25 or more recipients as junk email.
Level of Regulation
The remarkable difference between federal and state statutes is
the level of
regulation. All federal bills and statute except 'Netizens Protection
Act'[93]93 permit junk
email if the sender follows the bills' and statute's requirements. Usually, the
federal bills
and statute require the junk emailers to provide certain informations -- legal
business
name, business address, return address, phone number, and opt-out instructions.
Anti-
spammers severely argue that these requirements could give legal authorization
to junk
emails, because junk emailers can send if they follow the requirements. Thus
they argue
that junk email problem would be more serious than before.
State statutes, however, have more strict restrictions on sending
junk emails, and
over the half of the states prohibit sending junk emails. 10 states out of 17
states,[94]94
which have bills and statutes regulating unsolicited commercial electronic mail,
prohibit a
person from sending junk email unless a person has a preexisting and ongoing
business
relationship, or unless the recipients concede to receive junk email.
Constitutionality Analysis
Before analyzing the constitutionality of federal and state
statutes regulating
unsolicited commercial electronic mail, it is necessary to review the Supreme
Court's
commercial speech doctrine -- its views on First Amendment protection for
commercial
speech -- because this paper will use the Central Hudson four-part test as a
tool for
analyzing the constitutionality of federal and state statutes.
In the Central Hudson case, the Supreme Court set the standards
for determining
if the regulation of commercial speech is constitutional.[95]95 The Supreme
Court said that
in commercial speech cases, to determine whether the expression is protected by
the First
Amendment, a four-part test should be applied.[96]96 First, does it involve
lawful activity
and is it truthful and not mislead the audience? Second, does the government
have a
substantial interest in restricting the commercial speech? Third, does the
regulation
directly advances the governmental interest? Fourth, is the regulation more
extensive
than necessary to serve that interest?[97]97
In this case, the Court said, applying the fourth prong, that
there has not been
any proof that a more limited restriction on the content of promotional
advertising
would not serve adequately the state's interest.[98]98
Trend in current cases
The four-part test of Central Hudson case was again applied in
Rubin v.
Coors Brewing Co.[99]99 The Court ruled that a federal ban on disclosure of the
alcohol content of beer on labels failed to pass the third and fourth prongs.
The Supreme
Court said that although the government's interest was substantial, the federal
ban
could not directly and materially advance its interest because of the overall
irrationality
of the government's regulatory scheme.[100]100 Also, the ban was more
extensive than
necessary since available alternatives to the labeling ban - including directly
limiting
the alcohol content of beers, prohibiting marketing efforts emphasizing high
alcohol
strength, limiting the ban to molt liquors - could prove less intrusive to the
First
Amendment's protections for commercial speech.[101]101
After Rubin, commercial speech protection was reaffirmed in 44
Liquormart Inc.
v. Rhode Island.[102]102 The Supreme Court reversed the First Circuit's
decision, stating that
the state bore the burden of proof to show that its regulation would advance its
interest to
a material degree.[103]103 The Supreme Court said Rhode Island failed to show
that ban on
price advertising could significantly reduce alcohol consumption.[104]104
Furthermore, the
Court said that the ban on price advertising is more extensive than necessary to
serve
its stated interest.[105]105
Rubin and 44 Liquormart have special meaning for commercial speech
protection. In both cases, the Supreme Court required the government to show
that its
ban on advertising would further its interest in a material way. Especially, in
44
Liquormart, the Court rejected the assumption of Posadas that "the greater power
to
ban casino gambling necessarily includes lesser power to ban advertising casino
gambling".[106]106 The Court in 44 Liquormart rejected the assumption that
"words are
necessarily less vital to freedom than actions, or the logic that the power to
prohibit an
activity is necessarily greater than the power to suppress speech about
it."[107]107 Therefore,
the Court concluded that speech restrictions could not be treated as simply
another
means that the government might use to achieve its ends because the First
Amendment
directs that government may not suppress speech as easily as it may suppress
conduct.[108]108
( Does the speech concern lawful activity and not mislead ?
Since this paper focuses on the constitutionality of regulation of
unsolicited
commercial electronic mail, this paper uses the 'cost-shifting' and 'privacy
protection'
issues relating to regulating junk email as testing the constitutionality.
Because almost all
federal and state statutes stated that their purposes are to protect consumers
from having
to bear the costs of third-party advertising and protect consumer's privacy.
Even though
legal scholars argue that inconvenience should be included as a rationale for
regulating
junk email,[109]109 it was not clearly stated in the purpose of regulation.
The determinant of whether expression is eligible in the First
Amendment
protection is that the speech 'must concern lawful and truthful activity and not
be
misleading'.[110]110 Under the first part of the Central Hudson test,
commercial expression
entitled to constitutional protection must promote products and services that
are lawful.
Therefore, commercial message for fraud and deceptive product, or commercial
message
for obscene materials are outside constitutional consideration because they
promote
illegal products or services.
In this first part of test, several statutes that have broad
definition of unsolicited
commercial electronic mail - -for example, the E-Mail User Protection Act and
New
Hampshire -- have some problems. New Hampshire bill includes any material
requesting
donations as commercial electronic mail. In New York Times v. Sullivan, the
Supreme
Court said the ad which communicate information, express opinion, recite
grievances,
protest claimed abuses, and seek financial support was protected political
speech, even
though it is paid by the advertiser.[111]111 So, what if material requesting
donations is related
to political matters? In that case, New Hampshire's statute is regulating the
content of
political expression, and strict scrutiny must be applied to that case.[112]112
The first part of tests will be easily passed if the junk emailers
promote legal
products or services and if they do not use false or misleading advertising
message.
Cost-Shifting Issue
( Substantial government interest and direct advance
Under the Central Hudson, the second and third criteria of the
test are whether a
regulations serve a substantial government interest and the regulations directly
advance
that interest.[113]113 The asserted government interest is important in order
to justify the need
for regulation, and also plays a crucial role in determining the third and
fourth prongs of
test.
The cost-shifting issue arose from Destination Ventures LTD. v.
FCC.[114]114
Destination was a challenge to the Telephone Consumer Protection Act of 1991
(TCPA)
that prohibits using a telephone facsimile machine, computer, or other device to
send an
unsolicited advertisement to a telephone facsimile machine. In Destination
Ventures, the
U.S. District Court in Oregon said that 'Congressional efforts to protect
consumers from
harm -- economic and otherwise -- and its interest in the relationship between
advertiser
and consumer is well-established'.[115]115 The court also said that 'these
costs are borne by the
recipient of the fax advertisement regardless of their interest in the product
or service
being advertised'.[116]116 The District Court ruled that Congress' interest in
protecting
consumers from the economic harm resulting from the unfair shifting of the cost
of
advertising from the advertiser to the unwitting customer is substantial
government
interest, and that subsequently banning of those unsolicited faxes directly
advances its
interest.[117]117 Also, the District Court ruled that the regulation was
sufficiently tailored to
advance its interest and not more extensive than necessary.[118]118
An appeals court upheld the decision, ruling that advertisers had
no right to shift
the cost of their marketing onto consumers by using the consumers' fax
paper.[119]119
On appeal, Destination argued that advertising messages were no more costly to
consumers than non-commercial messages and therefore should not be singled out.
The
court, however, ruled that unsolicited fax advertisements were responsible for
most of the
cost shifting and that congress had a substantial interest in reducing the
amount.[120]120 Even
though this case did not reach the Supreme Court, it is clear that the purpose
of regulating
unsolicited commercial electronic mail is a substantial government interest and
therefore
can satisfy the second and third prongs of Central Hudson test.
Privacy Protection Issue
The other major purpose of regulating unsolicited commercial email
is privacy
protection.
( Substantial government interest and direct advance
The legal concept of a right of privacy developed only after the
mass media,
corporations, and government agencies became powerful enough to threaten
individual
privacy. [121]121 The first case related to privacy protection from commercial
speech was
Rowan v. U.S. Post Office Department.[122]122 Rowan, who is in the mail order
business,
filed the suit to challenge the constitutionality of the Postal Revenue and
Federal Salary
Act of 1967 that requires the sender to remove the addressee's name from his
mailing lists
and stop all future mailings to the householder when the addressee request.
Rowan
argued that this section violated his right of free speech and due process
guaranteed by
the First and Fifth Amendments. Rowan also argued that this section was
unconstitutionally vague and ambiguous.[123]123
The Supreme Court said that "the right of every person to be left
alone must be
placed in the scales with the right of others to communicate."[124]124 The
Court said that even
though people are inescapably captive audiences for many purposes these days, a
sufficient measure of individual autonomy must survive to permit every
householder to
exercise control over unwanted mail.[125]125 The Court ruled that a mailer's
right to
communicate must stop at the mailbox of an unreceptive addressee, and the
mailer's right
to communicate is circumscribed only by an affirmative act of the addressee
giving
notice that he wishes no further mailings from that mailer.[126]126 Also, the
Court said that
"nothing in the constitution compels us to listen to or view any unwanted
communication,
whatever its merit."[127]127
However, in Bolger v. Youngs Drug Products Corp., the Supreme
Court upheld
a District Court's decision that a federal law[128]128 that prohibits the
mailing of unsolicited
advertisements for contraceptives was more extensive than necessary to advance
the
interests asserted by the government.[129]129 The Court said that Young's
advertising for
contraceptives not only implicated substantial individual and societal interests
in the free
flow of commercial information, but also related to activity that was protected
from
unwanted governmental interference.[130]130 With regard to appellant's
assertion that the
statute shields recipient of mail from material that they are likely to find
offensive, the
Supreme Court said that offensiveness was classically not justification
validating the
suppression of expression protected by the First Amendment.[131]131 Also, the
Court said that
recipients might effectively avoid the unwanted mail simply by averting their
eyes,
therefore the "short journey from mailbox to trash can is an acceptable burden
so far as
the constitution is concerned".[132]132
So, in Bolger, the Court ruled that the governmental interest was
not substantial.
This suggests that the purpose of regulating unsolicited commercial electronic
mail to
protect privacy from intrusive unwanted commercial email is not a substantial
government interest. If the advertisers send commercial email which contains
substantial
individual and societal interests in the free flow of commercial information,
the
government interest of privacy protection can not pass the second prong. That
is, it can
not be said that it is substantial enough to allow the restrictions on the
speech. The
Supreme Court clearly declared that informational ad can not be characterized
merely as
proposals to engage in commercial transaction, and the reference to a specific
product
does not by itself render the advertisement commercial speech.[133]133
Therefore, the same
restrictions on commercial speech can not be applied to informational
advertisement.
Other issues that should be considered to assess the constitutionality of
regulating
unsolicited commercial electronic mail
( Blanket Ban Issue
There are problems with statutes which have blanket bans on
unsolicited
commercial email. Most of federal and state statutes define unsolicited
commercial
electronic advertising as "any unsolicited electronic mail message that is sent
for the
purpose of encouraging the purchase or rental of, or investment in, property,
goods, or
service."[134]134 However, some statutes define unsolicited commercial
electronic advertising
more broadly as "any electronic mail over than electronic mail sent by persons
to other
with whom they have a prior relationship, including a prior business
relationship, or mail
sent by a source to recipients where such recipients, or someone authorized by
them, have
an any time affirmatively requested to receive communications from that
source."[135]135
In Bolger v. Youngs Drug Products Corp., Youngs argued that its
proposed
mailings constitute fully protected speech because it contained the useful
information
about protecting consumers from venereal disease.[136]136 And the Supreme
Court, citing the
commercial speech definition of Virginia Board of Pharmacy, said that even
though
Youngs' pamphlets are conceded to be advertisement and Youngs referred its
products in
that pamphlets, Youngs' informational pamphlets can not be characterized merely
as
proposals to engage in commercial transactions.[137]137 Moreover, the Court
said that
economic motivation for mailing the pamphlets was not sufficient by itself to
turn the
materials into commercial speech.[138]138
Therefore, the broad definition of unsolicited commercial
electronic mail could
be problematic in this sense because it could be non-commercial speech according
to its
information content.
In Virginia Board of Pharmacy v. Virginia Citizens Consumer
Council, Inc., the
Supreme Court held that the state's blanket ban on advertising prices of
prescription drugs
violated the First Amendment.[139]139 The Supreme Court said that both the
individual
consumer and society in general might have strong interests in the free flow of
commercial information.[140]140 The Court said :
Advertising, however tasteless and excessive it sometimes may
seem,
is nonetheless dissemination of information as to who is
producing and
selling what product, for what reason, and at what price.
So long as we
preserve a predominantly free enterprise economy, the
allocation of our
resources in large measure will be made through numerous
private econo-
mic decisions. It is a matter of public interest that
those decisions, in the
aggregate, be intelligent and well informed. To this end,
the free flow of
commercial information is indispensable.[141]141
( New Media Issue
Another major issue surrounding the Internet is new medium issue.
Because it is
new and it has fundamental differences from traditional media, some argue that
the media
differences should be considered in determining whether or how it can be
regulated.
The landmark case relating to the Internet, which also reached the
Supreme
Court, is Reno v. ACLU.[142]142 ACLU filed suit challenging the
constitutionality of
provisions of the Communications Decency Act (CDA), which sought to protect
minors
from harmful material on the Internet. In trial, a U.S. District Court in
Pennsylvania held
that provisions of the CDA violated the First Amendment.[143]143 Especially,
the District
Court's analyses of the Internet was applied to Shea v. Reno[144]144 case, and
to the Supreme
Court's decision of Reno v. ACLU.[145]145 Judge Dalzell, in his "medium
specific analysis",
said that because the Internet is very different from other media --
broadcasting and print
-- different approach should be applied to the Internet.[146]146 Judge Dalzell
said that the
Internet has four different characteristics from other media. First the
Internet presents
very low barriers to entry. Second, these barriers to entry are identical for
both speakers
and listeners. Third, as a result of these low barriers, astoundingly diverse
content is
available. Fourth, the Internet provides significant access to all who wish to
speak in the
medium and even creates a relative parity among speakers.[147]147 Dalzell
concluded that "the
Internet may fairly be regarded as a never-ending worldwide conversation. The
government may not interrupt that conversation. As the most participatory form
of mass
speech yet developed, the Internet deserves the highest protection from
governmental
intrusion."[148]148
The Supreme Court, in a 7-2 decision, ruled the CDA
unconstitutional.
Justice Stevens said in his conclusion that "the government apparently assumes
that the
unregulated availability of indecent and patently offensive material on the
Internet is
driving countless citizens away from the medium because of the risk of exposing
themselves or their children to harmful material. We find this argument
singularly
unpersuasive. The dramatic expansion of this new marketplace of ideas
contradicts the
factual basis of this contention. The record demonstrates that the growth of
the Internet
has been and continues to be phenomenal. As a matter of constitutional
tradition, in the
absence of evidence to the contrary, we presume that governmental regulation of
the
content of speech is more likely to interfere with the free exchange of ideas
than to
encourage it. The interest in encouraging freedom of expression in a democratic
society
outweighs any theoretical but unproven benefit of censorship."[149]149
Conclusion and Discussion
This paper examined the characteristics and rationales of both
federal and state
statutes and bills that aim to regulate and to prohibit unsolicited commercial
electronic
mail via the Internet. Findings show that most of bills and statutes have
"cost-shifting
prevention" and "privacy protection" as rationales for regulating unsolicited
commercial
email. Also, findings show that there are some differences between federal and
state
statutes and bills regarding to the definition of unsolicited commercial email
and level of
regulation. According to findings, federal statute and bills are more generous
to
commercial message through the Internet than state statutes and bills.
Furthermore, this
paper examined whether the rationales and legal issues proposed by both federal
and state
bills and statutes regulating unsolicited commercial electronic mail via the
Internet can
pass the Central Hudson test. The result shows that the purpose of
cost-shifting
prevention from advertisers to consumers can pass the Central Hudson test. As
discussed
above, the Destination Ventures LTD. v. FCC[150]150 case can be a strong
precedent for the
constitutionality of those bills and statutes regulating unsolicited commercial
electronic
mail via the Internet. In Destination Ventures, court ruled that Congress'
interest of
protecting consumers from the economic harm inflicted by advertisers is
substantial
government interest, and banning of those unsolicited commercial message through
fax
machine can directly advance its interest. On the contrary, the result show
that privacy
protection issue can not pass the four-part test because of court's split
decision about this
issue. In Rowan, the Supreme Court ruled that privacy protection can be a
substantial
government interest, but in Bolger, the Supreme Court ruled that prohibiting the
mailing
of unsolicited advertisements for contraceptives was more extensive than
necessary.
Furthermore, this paper shows that the bills and statutes that have
blanket ban
over unsolicited commercial electronic mail would be a problematic in cases in
which
advertisers send the informational type of commercial email to recipients. This
is
according to the Supreme Court's decision in Bolger v. Youngs Drug Products
Corp.
Also, the Supreme Court's approach to the Internet shows that the
Supreme
Court would give highest protection to the Internet. Because in Reno, the U.S.
Supreme
Court declared that the Internet deserved the highest protection from the
governmental
intrusion.
[1] 1 See deatils at "http://www.nua.ie/surveys/how_many_online/index.html".
[2] 2 See details at "http://www.businessweek.com". The number of the Internet
users in U.S. is different from each survey, but it usually is estimated to be
from 40 million to 47 million.
[3] 3 See details at "http://www.findsvp.com/timeline/trends.html".
[4] 4 In Internet parlance, "spam" refers to send unsolicited commercial email
to large groups of people, or post messages on large number of newsgroups or
discussion lists. See Jill H. Ellsworth & Matthew V. Ellsworth, Marketing On the
Internet, Wiley Computer Publishing, John Wiley & Sons, Inc., 1997 ; A word
"Spam" was finally defined by New Oxford Dictionary of English as "irrelevant
Internet messages sent to a large number of people", see New York Times, Aug.
20, 1998 at 3.
[5] 5 A cancel-bot is a program that sends out cancel messages, see details at
"http://www.cybernothing.org/faqs/net-abuse-faqs.html#2.1".
[6] 6 Ed Foster, The Gripe Line, Infoworld, June 22, 1998, vol. 20, n25, p72.
[7] 7 J.S. Kakalik & M.A. Wright, Responding to Privacy : Concerns of Consumers,
Review of Business, Fall 1996, 15-18.
[8] 8 1998, S. 1618 ; 105 S. 1618.
[9] 9 A word "slamming" means that the telephone company switch the users to
their long distance service without users' permission or authorization.
[10] 10 1998, S. 1618 ; 105 S. 1618, Sections 301 and 302.
[11] 11 HR 3888 ; 105th Congress.
[12] 12 For example, "Netizens Protection Act", H.R. 1748 ; "Data Privacy Act",
H.R. 2368 ; "Email User Protection Act", H.R. 4124 ; "Unsolicited Commercial
Mail Choice Act", S. 771 ; "Electronic Mailbox Protection Act", S. 875 etc. See
details at "http://www.jmls.edu/cyber/statutes/email/federal.html".
[13] 13 See 'http://www.jmls.edu/cyber/statutes/email/state.html'.
[14] 14 Ed Foster, The Gripe Line, Infoworld, June 22, 1998, V. 20, n25, p72.
[15] 15 See Reno v. ACLU, 117. S. Ct. 2329 (1997) ; see also 929 F. Supp. 824
(E.D. Pa. 1996). In this case, the Supreme Court said that the Internet as a
new medium has highest protection from government regulation under the First
Amendment.
[16] 16 Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).
[17] 17 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969).
[18] 18 Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994).
[19] 19 Reno v. ACLU, 117 S. Ct. 2329 (1997).
[20] 20 Robin Zeff & Brad Aronson, Advertising on the Internet, Wiley Computer
Publishing, John Wiley & Sons, Inc., 1997.
[21] 21 In Internet parlance, "spam" refers to send unsolicited commercial email
to large groups of people, or post messages on large number of newsgroups or
discussion lists. See Robin Zeff & Brad Aronson, Advertising on the Internet,
Wiley Computer Publishing, John Wiley & Sons, Inc., 1997.
[22] 22 Id. at 16-21.
[23] 23 Id.
[24] 24 Id.
[25] 25 "Web site" is an Internet address that permits users to exchange
information with a particular host. In Internet parlance, the "Host" is referred
to the Internet access provider's computer. See Robin Zeff & Brad Aronson,
Advertising on the Internet, Wiley Computer Publishing, John Wiley & Sons, Inc.,
1997.
[26] 26 "World Wide Web" is a client/server system designed to use hypertext and
hypermedia documents via Internet. See Robin Zeff & Brad Aronson, Advertising on
the Internet, Wiley Computer Publishing, John Wiley & Sons, Inc., 1997.
[27] 27 "Usenet" groups refers to thousands of discussion groups based on public
postings of message. Newsreader software interacts with Usenet servers and
allows messages to be read by topic and discussion thread, and provides
provisions for responding to particular messages. See Robin Zeff & Brad Aronson,
Advertising on the Internet, Wiley Computer Publishing, John Wiley & Sons, Inc.,
1997.
[28] 28 See Joshua A. Marcus, Commercial Speech On The Internet : Spam and the
First Amendment, 16 Cardozo Arts & Entertainment 245 (1998).
[29] 29 948 F.Supp. 456 (E.D.Pa. 1996).
[30] 30 Joshua A. Marcus, Commercial Speech On The Internet : Spam and the First
Amendment, 16 Cardozo Arts & Entertainment 245 (1998) ; Jonathan Byrne,
Squeezing Spam Off the Net : Federal Regulation of Unsolicited Commercial
E-mail, 2W. Va. J. L. & Tech. 4 (1998) ; David E. Sorkin, Unsolicited Commercial
E-Mail and the Telephone Consumer Protection Act of 1991, 45 Buffalo L. Rev.
1001 (1997) ; Anne Wells Branscomb, Anonymity, autonomy, and accountability :
challenges to the First Amendment in cyberspace, 104 Yale L. J. 1639 (1995) ;
Mark S. Kende, The Supreme Court's approach to the First Amendment in cyberspace
: free speech as technology's hand-maiden, 14 Constitutional Commentary 465
(1997) ; Maureen S. Dorney, Privacy and the Internet, 19 Hastings Comm/Ent L.J.
635 (1997) ; Gene Barton, Taking a byte out of crime : E-mail harassment and the
inefficacy of existing law, 70 Washington L.Rev. 465 (1995).
[31] 31 Mark S. Kende, The Supreme Court's approach to the First Amendment in
cyberspace : free speech as technology's hand-maiden, 14 Constitutional
Commentary 465 (1997).
[32] 32 Gene Barton, Taking a byte out of crime : E-mail harassment and the
inefficacy of existing law, 70 Washington L.Rev. 465 (1995).
[33] 33 Joshua A. Marcus, Commercial Speech On The Internet : Spam and the First
Amendment, 16 Cardozo Arts & Entertainment 245 (1998) ; Jonathan Byrne,
Squeezing Spam Off the Net : Federal Regulation of Unsolicited Commercial
E-mail, 2W. Va. J. L. & Tech. 4 (1998) ; David E. Sorkin, Unsolicited Commercial
E-Mail and the Telephone Consumer Protection Act of 1991, 45 Buffalo L. Rev.
1001 (1997) ; Anne Wells Branscomb, Anonymity, autonomy, and accountability :
challenges to the First Amendment in cyberspace, 104 Yale L. J. 1639 (1995).
[34] 34 Anne Wells Branscomb, Anonymity, autonomy, and accountability :
challenges to the First Amendment in cyberspace, 104 Yale L. J. 1639 (1995).
[35] 35 Id.; See also, Rowan v. U.S. Post Office Department, 397 U.S. 728
(1969). The Supreme Court said in this case that the right of a person privacy
must be placed in the scales with the right of others to communicate. Even
though people are inescapably captive audiences for many purposes, a sufficient
measure of individual autonomy must survive to permit every householder to
exercise control over unwanted mail.
[36] 36 397 U.S. 728 (1969).
[37] 37 Id. at 736-737 (1969).
[38] 38 Branscomb, supra note 34.
[39] 39 Telephone Consumer Protection Act, 47 USC 227 (1991), TCPA was enacted
to prohibit the use of recorded sales calls unless the recording is preceded by
a live operator who obtained the receiver's consent, and also TCPA prohibits
sending unsolicited advertisement via fax machine.
[40] 40 Joshua A. Marcus, Commercial Speech On The Internet : Spam and the First
Amendment, 16 Cardozo Arts & Entertainment 245 (1998).
[41] 41 Id.
[42] 42 Id. at 298-302.
[43] 43 Id. at 298-299.
[44] 44 Id.
[45] 45 Jonathan Byrne, Squeezing Spam Off the Net : Federal Regulation of
Unsolicited Commercial E-mail, 2W. Va. J. L. & Tech. 4 (1998).
[46] 46 Id.
[47] 47 David E. Sorkin, Unsolicited Commercial E-Mail and the Telephone
Consumer Protection Act of 1991, 45 Buffalo L. Rev. 1001 (1997).
[48] 48 Id.
[49] 49 David E. Sorkin, Unsolicited Commercial E-Mail and the Telephone
Consumer Protection Act of 1991, 45 Buffalo L. Rev. 1001 (1997) ; and see also
Maureen S. Dorney, Privacy and the Internet, 19 Hastings Comm/Ent L.J. 635
(1997) ; also Gene Banton discussed the email Harassment in "Taking A Byte out
of Crime : Email Harassment and the Inefficacy of Existing Law". Banton argued
that the regulation of email should include the email harassment. According to
Banton, harassment includes "massive mailing of vituperative" especially
targeted to women, and mail bomb or letter bomb. Banton argued that this email
harassment should be handled criminally, not in a civil.
[50] 50 H.R.1748 ; 105th Congress 1st Session.
[51] 51 S. 875 ; 105th Congress 1st Session, Sec. 2.
[52] 52 The bills pending in Congress are ; "Netizens Protection Act of 1997",
"Electronic Mailbox Protection Act of 1997", "Data Privacy Act of 1997", "E-Mail
User Protection Act of 1998", "Digital Jamming Act of 1998", and "Unsolicited
Commercial Electronic Mail Choice Act of 1997". Part of "Unsolicited Commercial
Electronic Mail Choice Act" was accepted in "Anti-Slamming Amendments Act" and
Anti-Slamming Act was passed in Senate on May 12, 1998.
[53] 53 S. 771 ; 105th Congress.
[54] 54 Id.
[55] 55 Id. at Sec. 3 (a) (1).
[56] 56 Id. at Sec. 4 (a) (1).
[57] 57 S. 1618 ; 105th Congress.
[58] 58 H.R. 1748 ; 105th Congress.
[59] 59 Id.
[60] 60 S. 875 ; 105th Congress.
[61] 61 Id.
[62] 62 Id.
[63] 63 Id. at Sec. 3.
[64] 64 Id.
[65] 65 Id.
[66] 66 H.R. 2368 ; 105th Congress.
[67] 67 Id.
[68] 68 Id. at Sec. 2.
[69] 69 Id.
[70] 70 H.R. 4124 ; 105th Congress and H.R. 4176 ; 105th Congress.
[71] 71 H.R. 4176 ; 105th Congress.
[72] 72 Id. at Sec. (e).
[73] 73 See details at "http://www.jmls.edu/cyber/statutes/email/state.html".
[74] 74 Alaska House Bill 491.
[75] 75 California Assembly Bill 1629 "Internet Consumer Protection Act".
[76] 76 Connecticut House Bill 6558.
[77] 77 Kentucky Bill Resolution No. 337.
[78] 78 Maryland House Bill 140.
[79] 79 Massachusetts House Bill 4581.
[80] 80 Nevada Senate Bill No. 13.
[81] 81 New Hampshire House Bill 1633.
[82] 82 Id. at Chapter 359-G:3.
[83] 83 New Jersey Assembly No. 295.
[84] 84 New York Senate Bill 3524.
[85] 85 North Carolina House Bill 1744.
[86] 86 Rhode Island Senate Bill 1073.
[87] 87 Virginia House Bill No. 1325.
[88] 88 Wisconsin Senate Bill 283.
[89] 89 For example, 'Digital Jamming Act', H.R. 4176 ; 105th Congress, Sec.
101. (6).
[90] 90 H.R. 4124 ; 105th Congress, Sec. 3. (9) (A) (B).
[91] 91 New Hampshire House Bill 1633, Chapter-G:3.
[92] 92 S. 875 ; 105th Congress, Sec. 7.
[93] 93 H.R. 1748 ; 105th Congress.
[94] 94 Alaska, California, Connecticut, Maryland, Massachusetts, Nevada, New
Hampshire, New Jersey, Rhode Island, and Wisconsin.
[95] 95 447 U.S. 557 (1979).
[96] 96 Id.
[97] 97 Id.
[98] 98 Id. ; After the Central Hudson case, the four-part test was used to
determine whether a Puerto Rican statute prohibiting casinos from advertising
gambling in Puerto Rico is constitutional. The Supreme Court ruled that
advertising of casino gambling could be banned because casino gambling itself
could be banned. And the Supreme Court said that it was up to the legislature
to choose suppression over a less speech-restrictive policy. The results of
Posadas substantially reduced the First Amendment protection for commercial
speech, because the Supreme Court uphold the government authority for regulation
of truthful advertising.
[99] 99 115 S.Ct. 1585 (1995).
[100] 100 Id.
[101] 101 Id.
[102] 102 116 S.Ct. 1495 (1996).
[103] 103 Id.
[104] 104 Id.
[105] 105 Id.
[106] 106 106 S.Ct. at 2979 (1986).
[107] 107 116 S.Ct. at 1512 (1996).
[108] 108 Id.
[109] 109 David E. Sorkin, Unsolicited Commercial Email and the Telephone
Consumer Protection Act of 1991, 45 Buffalo L.Rev. 1001 (1997). Sorkin argued
that like junk fax, junk email could make consumers be inconvenient because junk
email usually uses a vague or misleading subject to conceal the nature of the
message. And this forces the recipient to examine the text of the message in
order to determine its relevance and this cause inconvenience.
[110] 110 447 U.S. at 566 (1980).
[111] 111 376 U.S. at 266 (1964) ; 1 Media L.Rep. 1527 (1964).
[112] 112 Kent R. Middleton, Bill F. Chamberlin & Matthew D. Bunker, The Law of
Public Communication, Fourth Edition, Longman, 1996.
[113] 113 447 U.S. at 566 (1980).
[114] 114 844 F.Supp. 632 (D.Or. 1994).
[115] 115 Id. at 635.
[116] 116 Id. at 636.
[117] 117 Id. at 637.
[118] 118 Id. at 637.
[119] 119 Destination Ventures, Ltd. v. FCC, 46 F. 3d 54 (9th Cir. 1995).
[120] 120 Id. at 56.
[121] 121 Wayne Overbeck, 'Major Principles of Medial Law', Harcourt Brace
College Publishers, 1998, 158-194.
[122] 122 397 U.S. 728 (1970).
[123] 123 Id. at 731.
[124] 124 Id. at 736.
[125] 125 Id. at 736.
[126] 126 Id. at 737.
[127] 127 Id. at 737.
[128] 128 39 U.S.C 3001 (e) (2).
[129] 129 463 U.S. 60 (1982).
[130] 130 Id. at 69.
[131] 131 Id. at 71.
[132] 132 Id. at 72.
[133] 133 Id. at 66.
[134] 134 For example, 'Netizens Protection Act', H.R. 1748 ; 105th Congress.
[135] 135 For example, 'E-Mail User Protection Act', H.R. 4124 ; 105th Congress.
[136] 136 463 U.S. 62, at 65-66 (1982).
[137] 137 Id. at 66.
[138] 138 Id. at 67.
[139] 139 425 U.S. 748 (1976).
[140] 140 Id. at 762-765.
[141] 141 Id. at 765.
[142] 142 929 F.Supp. 824 (E.D.Pa. 1996) ; and 117 S.Ct. 2329 (1997).
[143] 143 929 F.Supp. 824 (E.D.Pa. 1996).
[144] 144 930 F.Supp. 916 (S.D.N.Y. 1996).
[145] 145 117 S.Ct. 2329 (1997).
[146] 146 Id. at 872-78.
[147] 147 Id. at 877.
[148] 148 Id. at 883.
[149] 149 Reno v. ACLU, 117 S.Ct. at 2351 (1997).
[150] 150 844 F.Supp. 632 (D.Or. 1994).
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