The posting of junk e-mail, or "spam," represents to many critics the darker side of the Internet. There seems to be widespread and growing consensus that aggressive spamming has gotten out of hand, and should be regulated to protect communication systems or providers, and to ensure the flow of noncommercial messages. Yet the regulators are periodically reminded that the content of spam enjoys at least partial protection as commercial speech; it may therefore be regulated more extensively than many other digital messages, but may not be banned outright unless it is clearly false or misleading or proposes an unlawful transaction.

State Efforts To Regulate "Spamming"

   Washington State. While Congress has struggled to find an acceptable way of regulating spam, several states have entered the fray. Washington State was the first to adopt such a constraint, effective in mid-June 1998. That law began its legislative journey as a total ban, but emerged as a more modest curb on commercial e-mail that "contains false or misleading information" or misappropriates a protected domain name. The Washington law, though milder than its initial version, does contain some worrisome language - e.g., a legislative finding that "utilization of electronic mail messages for commercial purposes merits further study." That language resulted in the creation of a "select task force" to study such issues and to "evaluate whether existing laws are sufficient to resolve any technical, legal, or financial problems created by the increasing volume of commercial electronic mail messages."

   Three cases have already arisen under the Washington law. Bruce Miller, a Seattle resident, accepted a settlement offer of $200 after filing suit under the new law against an Oregon seller of Tahitian Noni Juice who had solicited buyers for his product through spam that arguably would have violated the new ban. Another suit, filed soon after the law took effect, sought substantial damages against Worldtouch for the promotion of one of its products through allegedly unlawful spamming. Worldtouch, apparently, stopped sending spam soon after the filing, as did at least one other commercial e-mailer when faced with threatened Washington state litigation. In late October, Washington1s attorney general filed the first public action under the new law, seeking substantial fines against an Oregon spammer for sending allegedly misleading commercial messages to numerous Washington residents.

   Nevada. Nevada1s legislature followed suit some months later with a more stringent measure. A law that became effective July 1, 1998, gives recipients of unsolicited commercial e-mail a cause of action against the sender - unless there is a pre-existing business or personal relationship, or the recipient has expressly consented to the mailing, or the message is "readily identifiable as promotional," or is specifically labeled as advertising and contains several other prescribed ingredients.    California. California is the latest entrant in the anti-spam effort. Two bills passed the legislature in late summer and were signed by Governor Wilson in early October 1998, both taking effect Jan. 1, 1999. The potentially more drastic of the two laws makes it a crime to use California networks or systems to send "electronic mail advertisements" that violate the policies of an e-mail service provider. Anyone who sends commercial e-mail under such conditions faces both civil and criminal sanctions, including a fine up to $25,000 per day.

   The other California law is designed to aid unwilling recipients rather than unwitting systems or providers. Those who post or disseminate "unsolicited advertising material" by e-mail are required to add a readily discernible "ADV" or "ADV:ADLT" to the subject line of any such message. If any recipient wishes to be removed from the list for such messages, the sender is obligated to provide a return e-mail address or an 800 phone number for that purpose, and must promptly respect any such request.

   Proponents of both laws argue that, instead of banning a message as such, and thus risking possible First Amendment challenge, these laws instead protect the use of private property from the sending of unwelcome and potentially disruptive material - a rationale on which two federal courts recently granted relief to Internet service providers against unauthorized spamming that threatened to cripple their systems.

   California courts have already shown sympathy for alleged victims of spamming. In late March, a superior court in Los Angeles granted $2 million to Earthlink Network, Inc., against CyberPromotions, Inc., a notably aggressive spammer, and its president Sanford Wallace (often styled "the King of Spam"). Wallace agreed, as part of the judgment, to be held personally liable for up to $1 million if he or his companies send further unsolicited e-mail. Now, of course, the passage of the two California anti-spam laws may render such a commitment moot or superfluous, though the level of Wallace1s commitment may still exceed what a successful plaintiff could reasonably expect to recover in court.

   A constitutional challenge to the California laws seems virtually certain, since the scope of regulation clearly exceeds what the Supreme Court would permit with regard to print advertising.

Proposed Federal Legislation

   In 1998 Congress considered, but did not adopt, legislation to regulate spam. The spam provisions were part of broader legislation that included restrictions on the unauthorized switching of a customer1s long distance telephone service provider, a practice known as "slamming." The proposals ranged from direct regulation to reliance on marketplace solutions.

   In the Senate, Sen. John McCain (R-Ariz.) introduced S. 1618, the anti-slamming Amendments Act. With respect to spamming, S. 1618 would have required a person who transmits an unsolicited commercial e-mail message to include at the beginning of the body of the message: (1) the name, physical address, electronic mail address, and telephone number of the person who initiated transmission of the message or who created the content of it; and (2) a statement that further transmissions of such mail to the recipient may be stopped at no cost to the recipient by sending a reply to the originating electronic mail address with the word "remove" in the subject line. The bill also would have given the Federal Trade Commission (FTC) regulatory authority over spam, including authority to conduct investigations, commence civil actions against individuals, and impose fines, penalties, and injunctions. States would also have been authorized to bring civil actions on behalf of their residents against individuals or entities transmitting unsolicited e-mail in violation of the bill.

   S. 1618 included provisions to support Internet service providers. First, it exempted such service providers from the bill1s requirements unless the provider initiates the transmission or the transmission is not made to the provider1s own customers. Second, it would have authorized actions by Internet service providers to enforce the restrictions against spamming.

   Legislation introduced in the House proposed a non-regulatory approach. H.R. 3888, introduced by Rep. Billy Tauzin (R-La.), included language that urged the private sector to deal with the problem of spamming. The bill, backed by 63 cosponsors, would have expressed the sense of the Congress that there should be no restrictive legislation with respect to unfair or intrusive practices on the Internet that the private sector can, given the opportunity, deter or prevent; and that it is the private sector1s responsibility to adopt, implement, and enforce measures to deter and prevent the improper use of unsolicited commercial electronic mail.

   Although neither S. 1618 nor H.R. 3888 was adopted, renewed efforts to address the issue of spamming are expected to surface in the 106th Congress.

Constitutional Concerns

   The central question, which courts have not yet addressed, is whether the nature of electronic advertising or commercial e-mail warrants a more drastic form of regulation. Surely the potential reach and speed of spam far exceed the means available to even the most aggressive of print advertisers. Such differences do not, however, dispense with or undermine the basic First Amendment protections that commercial speech has enjoyed for nearly a quarter century. Nor do the wonders of cyberspace relax the requirements of a close fit between means and end, and proof that the chosen regulatory method invades or inhibits protected expression in a manner not more extensive than necessary.